Judicial Independence: The Judge as a Third Party to the Dispute

Oxford University Comparative Law Forum 2

U. of Adelaide Law Research Paper No. 2018-106

Posted: 30 Apr 2010 Last revised: 10 Jul 2019

See all articles by Lorne Neudorf

Lorne Neudorf

University of Adelaide - School of Law

Date Written: 2015

Abstract

In this article, the author sets out a conceptual framework for judicial independence. From the starting point of adjudication as the basic function of the judiciary, the author embarks on an historical inquiry to shed light on the role of the judge in resolving legal disputes. The inquiry reveals a tradition of adjudicative impartiality that stretches back to the legal system of ancient Egypt. While all judges strive to maintain the status of a third party to the dispute, the historical development of an adjudicative tradition in Egypt resulted in a path-dependent conception of the judicial role that influences present understandings of judges, most prominently seen in the continuing use of the scales of justice hieroglyph. Given its significance to the resolution of disputes, judicial impartiality is the unifying theme in the theory of law advanced by Hobbes, who was keenly aware of the Egyptian practice. According to Hobbes, in the state of nature, each person possesses complete liberty. In order to enter into a peaceful society, individuals must give up the right to decide their own disputes. When individuals no longer act as their own judges, a third party must be called upon to resolve conflict. This decision-maker must maintain third party status by avoiding close connections with the parties or the issue in dispute in order to maintain legitimacy. Given this understanding, the author proposes the perception of impartiality as the rationale of an independent judiciary. Judicial independence seeks to preserve the status of the judge as a third party to the dispute by creating the necessary space between judges and actual and potential sources of improper influences. Because the definition of improper influence is determined by individuals from the community, the principle of judicial independence is significantly context-dependent. Finally, the author critiques the doctrine of judicial independence in Canadian law from the perspective of this conceptual framework.

Keywords: judiciary, judges, judicial independence, independence, impartiality, third party, separation of powers, tradition, adjudication, Hobbes, state of nature

Suggested Citation

Neudorf, Lorne, Judicial Independence: The Judge as a Third Party to the Dispute (2015). Oxford University Comparative Law Forum 2, U. of Adelaide Law Research Paper No. 2018-106, Available at SSRN: https://ssrn.com/abstract=1597341 or http://dx.doi.org/10.2139/ssrn.1597341

Lorne Neudorf (Contact Author)

University of Adelaide - School of Law ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia

HOME PAGE: http://https://researchers.adelaide.edu.au/profile/lorne.neudorf

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