Judicial Independence Without Power: Norms in Search of Law

Abstract

International substantive norms proscribe many threats to human life and dignity. Although each is “illegal” under a variety of international customs and covenants, there is absolutely no international enforcement worthy of the name. In the absence of enforcement power, to speak of judicial independence in transnational norms is almost meaningless – not entirely, because courts are able to articulate and explicate norms. But the very concept of a judiciary implies a Role of Law that is enforceable by legitimate power, not just aspirational compliance.

The Mt. Scopus Standards have one paragraph on the subject. American Bar Association standards are utterly silent on the need for enforcement of judicial decrees. Even the World Justice Project, which devotes substantial energy to the Rule of Law, merely insists on “regulatory enforcement” and that the “criminal justice system be effective” with no mention of enforcement for the judiciary. This paper first explores briefly the defects in enforcement of internationally recognized norms in three major categories affecting the human condition. Then it will turn to the concept of law and argue for creation of mechanisms for bringing cases to judicial tribunals along with the power to enforce tribunal rulings.

Keywords: norms, rule of law, enforcement

JEL Classification: K33, K42