Introduction

Shimon Shetreet; Sophie Turenne

doi:10.1017/CBO9781139005111.002

1 - Introduction

Published online by Cambridge University Press: 05 June 2014

Shimon Shetreet and

Sophie Turenne

Show author details

Shimon Shetreet: Affiliation:
Hebrew University of Jerusalem
Sophie Turenne: Affiliation:
University of Cambridge

Book contents

Get access

Summary

1.1 Judicial independence is an essential pillar of liberty and the rule of law; ‘without a judiciary which can and will administer law fairly and fearlessly between the parties, no other guarantee given to the litigants by the law is likely to be of value’. The many requirements of judicial independence can be found in international and domestic foundational texts. Yet its modern meaning and practice is as unique as the character of each judiciary is, fashioned by checks and balances generated through history by various stakeholders in the judiciary. The protagonists in the story of judicial independence most noticeably comprise the executive and the legislature. In England and Wales, they also include a number of autonomous bodies with statutory powers, such as the Judicial Appointments Commission. Judicial independence depends thus to a significant extent on the constitutional relations external to the judiciary, such as the relationship between Parliament and the government. It is also a significant component of government culture to the extent that it must be supported by the political climate and social consensus. The political leadership and the legal elite must work together to develop a culture of judicial independence underlined by some significant guidelines. This process is of necessity gradual and ongoing.

The checks and balances regarding the judiciary create, however, a continuous tension between judicial independence and the public accountability of judges in a democracy. This tension, in turn, reflects a line of demarcation for the judicial power of the state, according to the principles of parliamentary sovereignty and separation of powers. This means that the model of judicial accountability adopted in a given society determines, to a large extent, the independence of the judiciary.

Type: Chapter
Information: Judges on Trial
The Independence and Accountability of the English Judiciary
, pp. 1 - 20

DOI: https://doi.org/10.1017/CBO9781139005111.002 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2013

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Book purchase

Temporarily unavailable

References

Jolowicz, J.A., ‘Angleterre’, in M. Cappelletti and D. Tallon (eds.), Fundamental Guarantees of the Parties in Civil Litigation (Milan: Giuffrè, 1973), p. 121;

Bogdanor, V., The New British Constitution (Oxford: Hart, 2009), pp. 282–4Google Scholar

Hailsham, , ‘The Independence of the Judicial Process’ (1978) 13 Israel LRev 1, 8–9

Beatson, J., ‘Judicial Independence and Accountability: Pressures and Opportunities’ (2008) Judicial Review 1, Canivet, G., Andenas, M. and Fairgrieve, D. (eds), Judicial Independence and Accountability (London: BIICL, 2006)Google Scholar

Burbanks, S.B. and Friedman, B. (eds), Judicial Independence at the Crossroads: An Interdisciplinary Approach (Thousand Oaks, California: Sage Publications, 2002)Google Scholar

Blackstone, W., Commentaries on the Laws of England (1765), vol. I, ch. 7, p. 258

Masterman, R., The Separation of Powers in the Contemporary Constitution (Cambridge University Press, 2010CrossRef Google Scholar

Cappelletti, M., ‘Who Watches the Watchmen? A Comparative Study on Judicial Responsibility’ (1983) 31 AJCL 1

Shetreet, S. and Deschenes, J. (eds.), Judicial Independence: The Contemporary Debate (Boston: M. Nijhoff, 1985), pp. 570–5Google Scholar

Bell, J., Judiciaries within Europe, A Comparative Review (Cambridge University Press, 2006), p. 4Google Scholar

Thomas, LJ, ‘The Position of the Judiciaries of the United Kingdom in the Constitutional Changes’, Address to the Scottish Sheriffs’ Association (Peebles, 8 March 2008

Phillips, , ‘Judicial Independence’ – Commonwealth Law Conference (Nairobi, Kenya, 12 September 2007)

Guarnieri, C. and Pederzoli, P., The Power of Judges: A Comparative Study of Courts and Democracy (Oxford University Press, 2002CrossRef Google Scholar

Derbyshire, P., Sitting in Judgment. The Working Lives of Judges (Oxford: Hart, 2011Google Scholar

Macdonald, R.A. and Kong, H., ‘Judicial Independence as a Constitutional Virtue’, in Sajo, A. and Rosenfeld, M. (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012), p. 831Google Scholar

Russell, P.H., ‘Towards a General Theory of Judicial Independence’, in Russell, P.H. and O’Brien, D.M. (eds), Judicial Independence in the Age of Democracy (Charlottesville/London: University of Georgia, 2001), p. 1;Google Scholar

Larkins, C.M., ‘Judicial Independence and Democratization: A Theoretical and Conceptual Analysis’ (1996) 44 American Journal of Comparative Law605.CrossRef Google Scholar

Etherton, T., ‘Liberty, the Archetype and Diversity: A Philosophy of Judging’ [2010] PL 727

Reid, , ‘The Judge as Law Maker’ (1972) 12 J Pub Teach Law 22.

Beatson, J., ‘Reforming an Unwritten Constitution’ (2010) 126 LQR 48

Stevens, R., The English Judges: Their Role in the Changing Constitution, rev. edn (Oxford: Hart, 2005)Google Scholar

Irvine, , Human Rights, Constitutional Law and the Development of the English System (Oxford: Hart, 2003), p. 205.Google Scholar

Woolf, , ‘The Rule of Law and a Change in the Constitution’ (2004) CLJ 317

Bingham, T., The Business of Judging (Oxford University Press, 2000), p. 67.Google Scholar

Rawlings, R., ‘Concordats of the Constitution’ (2000) 116 LQR 257

Mackay, J., ‘The Role of the Lord Chancellor in the Administration of Justice’, Earl Grey Lecture, University of Newcastle, 24 February 1990.

Zuckerman, A., ‘Civil Litigation: a Public Service for the Enforcement of Civil Rights’ (2007) 26 CJQ 1.

Shetreet, S., ‘The Administration of Justice: Practical Problems, Value Conflicts and Changing Concepts’ (1979) 13 UBC Law Rev 52, 57–62.

Bogdanor, V., ‘Parliament and the Judiciary: The Problem of Accountability’, Third Sunningdale Accountability Lecture, 2006

Sedley, S., ‘When Should a Judge Not Be a Judge?’ (2011) 33 LRB 1, 9.

Friedland, M., A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995), p. 157.Google Scholar

Bingham, T., ‘The Human Rights Act’ (2010) 6 EHRLR 568, 569.

Bradley, A., ‘Relations between Executive, Judiciary and Parliament: an Evolving Saga?’ [2008] 4 PL 470, 488.

Langbroek, P., International Journal for Court Administration, editorial, April 2011.

Griffith, J.A.G., The Politics of the Judiciary, 5th edn (London: Fontana, 2010), pp. 18–22.Google Scholar

Limbach, J. et al., Interrights Report on ‘Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights’, May 2003

Turenne, S., ‘Decisions, Decisions: the Best Case Scenario’, The Guardian, 11 October 2011

Shetreet, S., ‘Models of Constitutional Adjudication’, in Essays in Honour of Konstantinos D. Kerameus (Athens/Brussels: Ant. N. Sakkoulas/Bruylant, 2009), p. 1259Google Scholar

Rosenfeld, M., ‘Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts’, in Nolte, G. (ed.), European and United States Constitutionalism (Cambridge University Press, 2005), p. 197Google Scholar

Shapiro, M. and Stone Sweet, A., On Law, Politics, and Judicialization (Oxford University Press, 2002)CrossRef Google Scholar

Rousseau, D. (ed.), La Question prioritaire de constitutionalité (Paris: Lextenso, 2010).Google Scholar

Bell, J., ‘United Kingdom: Constitutional Courts as Positive Legislators’, in Brewer Carias, A.R. (ed.), Constitutional Courts as Positive Legislators. A Comparative Law Study (Cambridge University Press, 2011), p. 809.Google Scholar

Resnik, J., ‘Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure’ (2005) 26 Cardozo L Rev 579, 593–4.

Jowell, J., ‘Restraining the State: Politics, Principle and Judicial Review’ (1997) 50 CLP 189.

Irvine, , ‘Parliamentary Sovereignty and Judicial Independence: Keynote Address’, in Hatchard, J. and Slinn, P. (eds.), Parliamentary Supremacy and Judicial Independence: A Commonwealth Approach (London: Cavendish Publishing, 1999) p. 167.Google Scholar