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.
See e.g. Martin H. Redish, ‘Federal Judicial Independence: Constitutional and Political Perspectives’, Mercer L Rev46 (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.
David Pimentel, ‘Reframing the Independence v. Accountability Debate: Defining Judicial Structure in Light of Judges’ Courage and Integrity’, Clev St L Rev57 (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.
Mauro Cappelletti, ‘Who Watches the Watchmen? A Comparative Study on Judicial Responsibility’, American Journal of Comparative Law31 (1983) 1; Tom Ginsburg and Nuno Garoupa, ‘Guarding the Guardians: Judicial Councils and Judicial Independence’, American Journal of Comparative Law 57 (2009) 201–232.
John Ferejohn and Larry Kramer, ‘Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint’, NYUL Rev77 (2002) 962(arguing that independence and accountability aim at a well-functioning system of adjudication).
Idil Boran, ‘On Distinguishing between Types of Impartiality’, J Value Inq38 (2004) 333at 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).
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.
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).
The Constitution Act,1867, 30& 31 Victoria, c.3 (U.K.).
See Warren J. Newman, ‘The Constitutional Status of the Supreme Court of Canada’, Supreme Court Law Review47 (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.
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.
Peter W. Hogg and Cara F. Zwibel, ‘The Rule of Law in the Supreme Court of Canada’, UTLJ55 (2005) 71at 728–729.