41 Pages Posted: 1 Oct 2011
Date Written: September 30, 2011
This chapter provides an overview of what we know about international judicial independence. First, what is international judicial independence? Judicial independence refers to the set of institutional and other factors that to a lesser or greater extents allow judges autonomy from the preferences of other political actors when they issue legal opinions. How judges will use this autonomy is a separate question. Second, why do some international courts have a great deal of independence while others do not? Viable theories of judicial independence should not be based on assumptions that judges are ontologically inclined to favor greater separation from states whereas states have opposite inclinations. Instead, I emphasize the answers offered by two groups of theories: rationalist institutionalist (or principal-agent) and sociological-institutionalist (or neofunctionalist) approaches. Third, what do we know about the degree to which governments can use control mechanisms to influence judges? Here I discuss the various challenges to empirically studying judicial independence. Finally, does judicial independence increase the effectiveness of international courts? This latter section highlights fears that the judicialization of politics is met by an increased politicization of the judiciary.
Keywords: judicial independence, international courts, judicial behavior
JEL Classification: N40
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