Mapping Judicial Independence

Toward a Comparative Taxonomy

in Global Journal of Comparative Law
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Judicial independence is increasingly viewed as a sine qua non of democratic constitutionalism. But in spite of a widespread consensus on the importance of having an independent judiciary, debates about the meaning of judicial independence persist in the literature. For scholars interested in comparative constitutional law, the uncertainty surrounding the definition of judicial independence is particularly vexing and raises several challenging questions: is there a universal set of conditions necessary for judicial independence? Or are there perhaps several models of a judicial independence? One issue that arises from these various questions is whether it is possible to develop a taxonomy of judicial independence. Although taxonomies inevitably produce an incomplete picture of the objects they classify, a taxonomy can assist comparative law scholars by providing an analytical framework for comparison. In Part 1 of this paper, the author explores the conceptual problems associated with finding a universal definition of judicial independence, arguing that there is no single, satisfactory definition of judicial independence. In Part 2 of the paper, the author addresses some of the methodological problems associated with developing a qualitative taxonomy. This is followed by a discussion of the organizing criteria that will be used to construct the four models of judicial independence found in the author’s proposed taxonomy.

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References

1

 See e.g. Linda Camp Keith, ‘Judicial Independence and Human Rights Protection around the World’ Judicature 85 (2001–2002) 195.

7

Adam Dodek and Lorne Sossin, 2007. ‘Why Judicial Independence Matters.’ Globe and Mail, 23 November.

9

Joseph Raz, ‘The Rule of Law and Its Virtues’, Law Review Quarterly (1977) 95.

10

 See Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’, Law and Philosophy 21 (2002) 137 at 164.

13

 See Frances Kahn Zemans, ‘The Accountable Judge: Guardian of Judicial Independence’, S Cal L Rev 72 (1999) 625 (discussing institutional versus decisional independence).

14

 See e.g. Martin H. Redish, ‘Federal Judicial Independence: Constitutional and Political Perspectives’, Mercer L Rev 46 (1994–1995) 697; Joseph M. Hood, ‘Judicial Independence’, J Nat’l Ass’n Admin L Judges 23 (2003–2004) 137 at 138–140; Gordon Bermant and Russell R. Wheeler, ‘Federal Judges and the Judicial Branch: Their Respondence and Accountability’, Mercer L Rev 46 (1994–1995) 836 (identifying different levels of independence, including decisional independence, personal independence, procedural independence, administrative independence; and different levels of accountability, namely internal v. external accountability); Harold See, ‘Judicial Selection and Decisional Independence’, Law and Contemp Probs 61 (1998) 141; and see Stephen B. Burbank, ‘What Do We Mean by Judicial Independence?’, Ohio St LJ 64 (2003) 322 at 326.

15

Joseph H. Rodriguez, ‘New Threats to Judicial Independence’, Judges J 35 (1996) 27.

17

David Pimentel, ‘Reframing the Independence v. Accountability Debate: Defining Judicial Structure in Light of Judges’ Courage and Integrity’, Clev St L Rev 57 (2009) 1; Charles Gardner Geyh, ‘Straddling the Fence between Truth and Pretense: The Role of Law and Preference in Judicial Decision Making and the Future of Judicial Independence’, Notre Dame JL Ethics & Pub Pol’y 22 (2008) 435 at 443.

22

 See Ran Hirschl, ‘The Question of Case Selection in Comparative Constitutional Law’, American Journal of Comparative Law 53 (2005) 125.

23

Mauro Cappelletti, ‘Who Watches the Watchmen? A Comparative Study on Judicial Responsibility’, American Journal of Comparative Law 31 (1983) 1; Tom Ginsburg and Nuno Garoupa, ‘Guarding the Guardians: Judicial Councils and Judicial Independence’, American Journal of Comparative Law 57 (2009) 201–232.

24

Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’, Yale Law Journal 108 (1999) 1225, 1238.

31

John Ferejohn, ‘Independent Judges, Dependent Judiciary: Explaining Judicial Independence’, Southern California Law Review 72 (1998–1999) 353 at 365.

33

Cheryl Saunders, ‘Separation of Powers and the Judicial Branch’, Jud Rev 11 (2006) 337.

34

Jeremy Webber, ‘Supreme Courts, Independence and Democratic Agency’, Legal Stud 24 (2004) at 60 (citing Ronald Dworkin for this idea).

35

John Ferejohn and Larry Kramer, ‘Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint’, NYUL Rev 77 (2002) 962 (arguing that independence and accountability aim at a well-functioning system of adjudication).

36

Idil Boran, ‘On Distinguishing between Types of Impartiality’, J Value Inq 38 (2004) 333 at 333; and see Amartya Sen, ‘Open and Closed Impartiality’, J Phil 99 (2002) 445 at 445–469. Impartiality can be contrasted with moral partialism; see M. Baron, ‘Impartiality and Friendship’, Ethics 101 (1991) 836 at 837 (discussing the role of impartiality in personal relationships though ultimately arguing that impartiality does not require that we treat no one as special).

38

 See William Lucy, ‘The Possibility of Impartiality’, Oxford J of Legal Stud 25 (2005) 3 at 11.

43

Kelvin Low, ‘The Use and Abuse of Taxonomy’, Legal Stud 29 (2009) 355 at 360.

44

Ugo Mattei, ‘Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems’, Am J of Comp L 45 (1997) 5 at 5.

49

M. Santoni and F. Zuccinhi, ‘Does Policy Stability Increase the Constitutional Court’s Independence? The Case of Italy during the First Republic (1956–1992)’, Public Choice (2006) at 439–461; J.M. Ramseyer, ‘The Puzzling (In)dependence of Courts: A Comparative Approach’, Jour of L Stud 23 (1994) 721–747.

50

McNollgast, ‘Conditions for Judicial Independence’, J. Contemp. Legal Issues 15 (2006) 106, 110.

51

David S. Clark, ‘Judicial Protection of the Constitution in Latin America’, Hastings Constitutional Law Quarterly 2 (1975) 405 at 442.

54

John Ferejohn, ‘The Politics of Imperfection: The Amendment of Constitutions’, Law & Soc. Inquiry 22 (1997) 513.

55

Samuel P. Huntington, Political Order in Changing Societies (New Haven: Yale University Press, 1968) 12; and see R. Goodin, ‘Institutions and Their Design’, in: R. Goodin (ed.), The Theory of Institutional Design (Cambridge: Cambridge University Press, 1996).

71

The Constitution Act, 1867, 30 & 31 Victoria, c.3 (U.K.).

78

 See Warren J. Newman, ‘The Constitutional Status of the Supreme Court of Canada’, Supreme Court Law Review 47 (2009) 429, noting that the Supreme Court was not created by the Constitutions of Canada, but only contemplated by section 101 of the Constitution, 1867; and see P.W. Hogg, Constitutional Law of Canada, 5th edn (Scarborough: Thomson Carswell, 2007) ch. 1.2 at 5.

79

Supreme Court Act, R.S.C., 1985, c. S-26, s. 35. Arguably the Supreme of Canada has developed a constitutional or quasi-constitutional status; however, this has not been definitively resolved. The Supreme Court Act is not, for example, one of the Acts listed in the schedule to the Constitution Act, 1982.

84

Peter W. Hogg and Cara F. Zwibel, ‘The Rule of Law in the Supreme Court of Canada’, UTLJ 55 (2005) 71 at 728–729.

89

 See Shimon Shetreet, ‘Judicial Independence and Accountability in Israel’, International and Comparative Law Quarterly 33 (1984) 979.

101

Xin He, ‘Ideology or Reality? Limited Judicial Independence in Contemporary China’, Chilean Journal of Asian Law 6 (2004).

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