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49 - Judicial Independence

from Part III D - The Legal System

Published online by Cambridge University Press:  27 March 2025

Richard Bellamy
Affiliation:
University College London
Jeff King
Affiliation:
University College London
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Summary

Despite being nearly universally recognised as a virtue, judicial independence has been challenged in almost all parts of the world. Some commentators even consider it to be so open to differing interpretations as to be a useless concept, that should be unpacked to its smaller components to be studied meaningfully. We are less cynical about the idea. According to our theory, judicial independence exists where powerful actors are unable or unwilling to inappropriately interfere with the workings of the judiciary. Judicial independence is thus a relational concept and always results from the interplay between the capacity and willingness of powerful actors to inappropriately interfere with the judiciary, and the capacity and willingness of judicial actors and their allies to withstand such actions. We distinguish three levels of judicial independence: de jure institutional independence, de facto institutional independence, and decisional independence. Courts are thus independent when powerful actors do not consistently impose their preferences in disputes they have a stake in, either by capturing the courts through formal changes of laws governing the judiciary, through rigging these laws in their favour, or by skewing judicial decision-making. By contrast, a dependent judiciary is the one that is captured, rigged, or skewed.

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Publisher: Cambridge University Press
Print publication year: 2025

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References

Recommended Reading

Brinks, D. M., & Blass, A. (2017). Rethinking Judicial Empowerment: The New Foundations of Constitutional Justice. International Journal of Constitutional Law, 15 (2), 296331.CrossRefGoogle Scholar
Burbank, S. B. (2007). Judicial Independence, Judicial Accountability and Interbranch Relations. The Georgetown Law Journal, 95 (4), pp. 909927.Google Scholar
Castagnola, A. (2018). Manipulating Courts in New Democracies: Forcing Judges off the Bench in Argentina, New York: Routledge.Google Scholar
Ferejohn, J. (1999). Independent Judges, Dependent Judiciary: Explaining Judicial Independence. Southern California Law Review, 72 (2–3), pp. 353384.Google Scholar
Garoupa, N. & Ginsburg, T. (2009). Guarding the Guardians: Judicial Councils and Judicial Independence. American Journal of Comparative Law, 57 (1), pp. 103134.CrossRefGoogle Scholar
Karlan, P. S. (2007). Judicial Independences. Georgetown Law Journal, 95 (4), pp. 10411059.Google Scholar
Kosař, D., & Šipulová, K. (2023). Comparative Court-Packing. International Journal of Constitutional Law, 21 (1), 80–126.CrossRefGoogle Scholar
Popova, M. (2012). What is Judicial Independence? In Politicized Justice in Emerging Democracies: A study of Courts in Russia and Ukraine. New York: Cambridge University Press, pp. 1425.CrossRefGoogle Scholar
Russell, P. H. (2001). Toward a General Theory of Judicial Independence. In Russell, P. H. and O’Brien, D. M. O., eds., Judicial Independence in the Age of Democracy: Critical Perspectives from around the World. Charlottesville: University Press of Virginia, pp. 124.Google Scholar
Tiede, L. B. (2006). Judicial Independence: Often Cited, Rarely Understood. Journal of Contemporary Legal Issues, 15 (1), pp. 129161.Google Scholar
Voigt, S., Gutmann, J., & Feld, L. P. (2015). Economic growth and judicial independence, a dozen years on: Cross-country evidence using and updated set of indicators. European Journal of Political Economy, 38 (C), pp. 197211.CrossRefGoogle Scholar

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