The Dual Rationale of Judicial Independence
CONSTITUTIONAL MYTHOLOGIES: NEW PERSPECTIVES ON CONTROLLING THE STATE, Alain Marciano, ed., New York: Springer, 2011
21 Pages Posted: 18 Feb 2011 Last revised: 13 Mar 2017
Date Written: March 23, 2011
This paper considers the rationale of judicial independence in constitutional discourse. A look at the expression of this principle in normative instruments of various periods and sources shows how the universal requirement of independent adjudicators, which aims at ensuring justice in particular cases, and the widely shared desideratum of a powerful judiciary with “a will of its own”, aimed at checking the exercise of power by the political branches, provide two distinct and largely independent grounds for protecting judicial independence. These grounds overlap in many respects but must be distinguished in order satisfactorily to work out the detailed requirements of independence in particular scenarios. This has become pressing in the current context where adjudication is more and more often entrusted to tribunals whose members are not part of an institutionalized judiciary and where the state itself is more generally losing ground in the governance of human affairs.
Keywords: Judicial Independence, Independence of the Judiciary, Independent Tribunal, Adjudicative Independence, Natural Justice, Nemo Judex, Nemo Iudex, Roman Law, Separation of Powers, Montesquieu, Madison, Coke, Rule of Law, International Rule of Law, ECHR
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