Politics, Executive Dominance, and Transformative Law in the Culture of Judicial Independence
John C. Reitz
University of Iowa - College of Law
February 9, 2009
University of St. Thomas Law Review, Vol. 5, 2009
U Iowa Legal Studies Research Paper No. 09-06
In the last two decades Latin America has experienced a significant resurgence of democracy, yet efforts to strengthen the independence of the judiciary, largely focused on institutional reforms of the judiciary itself, have been disappointing. It is apparently not enough to construct appropriate judicial machinery. How can one keep the nation's politicians from trying to control the judges? Through a wide-ranging historical and comparative method that starts with the debate in ancient China over law and morality, builds on insights from observations of contemporary Islamic courts, and surveys the development of institutional protections for judicial independence in the United States, France, and England, this article seeks to explore the culture of judicial independence by asking what the political and social logic in favor of and opposed to judicial independence is. This article seeks to contribute to the cultural approach, first by understanding the enduring strength of the opposing culture, the culture supporting political control over the courts, and second, by exploring the argument that a belief in law's ability to transform society characterizes cultures supporting reasonable levels of judicial independence. If belief in transformative law is an important feature of the culture of judicial independence, then perhaps that belief can be deployed against the perennial claims for political control. Strategies designed to strengthen belief in transformative law by improving the effectiveness of laws intended to be transformative, it is argued, could be promising ways of supplementing institutional reforms by increasing cultural support for judicial independence.
Number of Pages in PDF File: 101
Keywords: transformative law, judicial independence, executive dominance, ancient Chinese law, Islamic law, rule of law, legal culture
JEL Classification: Z00Accepted Paper Series
Date posted: March 5, 2009
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