Judicial Independence and the Rights of Indigenous Peoples
The Independence of Judges. N. A. Engstad, A. L. Frøseth and B. Tønder, (eds.), Eleven International Publishing, 2014
Posted: 5 Feb 2014 Last revised: 13 May 2014
Date Written: January 29, 2014
This article raises questions related to judicial independence and the rights of indigenous peoples. I will discuss whether competence in and knowledge of indigenous cultures is a prerequisite for the independence of judges dealing with indigenous peoples’ legal rights. Lady Justice is blindfolded, so she does not see the people in front of her and is thus able to treat everyone equally, it is commonly said. She only considers facts and law. But what if true justice requires that Lady Justice lifts the veil of ignorance and considers the cultural background of the people before her? What if the law requires cultural competence among judges? Do judges have a legal obligation to take cultural considerations into account in their judging? Does international law establish a legal basis for requiring judges to have indigenous cultural competence? Is, in fact, cultural competence an element in the principle of judicial independence or the rule of law?
Keywords: Judicial independence, rule of law, indigenous peoples rights
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