Judicial Independence as an Organizing Principle
Annual Review of Law and Social Science, 2014, Forthcoming
35 Pages Posted: 1 Mar 2014
Date Written: 2014
Judicial independence is a sprawling topic. For some scholars, that is its problem: it is an amoeba, a formless thing that changes shape to serve its needs, and sustains itself by engulfing and absorbing related and arguably more useful creatures it encounters. “Judicial independence” is variously employed in normative and descriptive ways; in absolute and relative terms; as a theoretical construct and a practical safeguard; in regard to judges individually and collectively; as an end in itself and a means to other ends; as a matter of hard law and soft norm; and in relation to the “political” branches of government, the media, the electorate, litigants, interest groups, and judges themselves. Using “judicial independence” to mean so many things provokes the criticism that it means nothing at all. But that assumes the utility of judicial independence turns on distilling it down to a unitary concept that can be consistently applied across contexts. If instead, one begins from the premise that judicial independence is not monolithic, but has a range of meanings and applications that together delineate a foundational component of the judicial role, then it is possible to recast judicial independence as a useful, if polymorphous, organizing principle.
My goal here is to elaborate on judicial independence as an organizing principle by creating a structure within which to situate the judicial independence literature. In short, I hope to give the amoeba a backbone.
Keywords: judicial independence, judicial accountability, judicial decision-making, judicial behavior, judges
Suggested Citation: Suggested Citation