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This chapter presents the results of judicial reform in the new Southern Europe in the context of the legacies of the nondemocratic past and the strategies of political actors. The democratic transition involved the restitution of judicial independence, limited purges of the judicial personnel, and lack of change in the courts' administration. Internal independence and individual autonomy of judges increased, while judicial hierarchy was eroded. With the exception of Greece, in the rest of Southern Europe judicial review was centralized and entrusted to constitutional courts, which diffused a “culture of constitutionality” to the judiciary. In Portugal and Spain, constitutional courts were insulated from the narrow will of political majorities and thus contributed to democratic consolidation. Judicial activism was present in all four countries, but the judicialization of politics became particularly important in Italy because of an institutionally strong prosecutorial branch and the presence of a politically factionalized judiciary at a time of stagnation and crisis of the party system.

This chapter examines how a state's colonial legal system and levels of political competition in the state legislature shaped the independence of judges on the state high court. It argues that the independence of judges in state high courts influences their behavior on the bench and thus economic and social outcomes. This is because judges face the difficulties of maintaining their positions. Thus, this chapter shows how judges facing Republican electorates were more likely to vote for businesses over individuals, and how those facing Democratic electorates had the opposite voting patterns. The chapter illustrates a model emphasizing these patterns, by plotting the relationships among legal initial conditions, political competition, and state courts.

This chapter writes about judicial independence and the distinction between the roles of the legislature and the courts. It discusses how the judiciary plays a unique and vital role in democratic governance and how its functions interact with the functions of the legislative and executive branches of government, to ensure legitimate constitutional governance and just legal outcomes in accordance with the rule of law. Further, the chapter argues that in order to discharge its proper constitutional function, the judiciary must function independently of the legislative and executive branches of the governance in discharging its responsibility of interpreting and applying the law. Finally, the chapter discusses what the necessary conditions of independent judicial functioning are.

This lecture discusses judicial independence. It notes that the increase in concern over judicial independence was due to recent developments in Scotland, England and Wales. The constitutional changes also led to new relationships between ministers and judges, which in turn has led to governmental declarations to respect the rule of law and judicial independence. The lecture also stresses the importance of considering and re-asserting the principles that justify judicial independence, as well as the underlying concept of separation of powers.

This chapter discusses how Sweden has managed to create an approach to the governance of the judiciary which meets the contemporary need to secure accountability of the judiciary whilst respecting judicial independence, and how the British system can use this as an inspiration.

This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are brought to light. Classical Anglo-Saxon conceptions of the separation of powers, checks and balances, judicial independence, and the rule of law, the utility of which has stood the test of time, are compared to the theory and practice of the Network Community’s Judiciary institutional design Template. The Network conceives of the separation of powers, checks and balances, judicial independence, and the rule of law as emanating from the autonomy and supremacy of a Judiciary so empowered as invariably to subordinate all other contestants in case of conflict with itself over constitutional meaning. The chapter ends with a systematic catalogue and critical examination of those few acts of state which the Network Community conceive as legitimate checks and balances on their Judiciary design.

Contradictory institutional demands for both judicial independence and expertise in administrative disputes are related to theoretical and everyday requirements of objectivity and subjectivity. This chapter describes the development of the radical French separation of powers — in reaction to the roles of the pre-Revolutionary Parlements and in response to the theories of Montesquieu and Rousseau — and the consequent assumption of judicial functions by the Consei d'Etat within the French administration. It shows how the judicialization of their exercise enabled the Conseil d'Etat broadly to satisfy those demands, and thus help entrench the French distinction between public- and private-law courts. The chapter contrasts the English emphasis on judicial independence, identified with the abolition of prerogative courts and the revolutionary settlement, and confirmed by Blackstone amongst others. The 20th-century Hewart—Robson debate on administrative tribunals, their subordination to the supervisory jurisdiction of the ordinary courts after the Donoughmore Inquiry, and the relatively limited administrative expertise of judges on the Crown Office List, it explains as indicative of an enduring problem — securing both judicial independence and adequate judicial expertise — for an institutional English distinction between public- and private-law courts.

One of the interesting and understudied phenomena in comparative judicial studies concerns the roles judges play in exercising non-judicial functions. In recent years, judges have led commissions of inquiry, worked on legislation, and in some cases even served as acting heads of state. The relationship between these functions and the core judicial role is a source of great contention in many systems. Our particular concern is the impact of these roles on judicial reputation. We argue that non-judicial functions can, within certain limits, enhance judicial reputation; but there are also risks that come from too much judicial involvement in non-judicial functions. As in so many areas, the task is one of optimization, within a local context, rather than maximizing a single abstract value like “judicial independence”. The Chapter provides several case examples from various countries.

Even though there is a trend in all contemporary democracies towards courts increasingly playing a politically significant role, there are some important differences in its intensity and the way judicial activism manifests itself in specific contexts. These differences are related to a range of elements, both inside and outside the judicial system. This chapter focuses on internal elements. Without judicial independence, it is impossible to speak of an autonomous intervention by the judiciary in the political process. To evaluate the degree of independence judges enjoy, both their training and recruitment and the guarantees that exist to safeguard their independent status need to be taken into account. An analysis of such structural aspects introduces another element, the role of the perception of judges, which is influenced in part by the institutional setting in which judges operate.

This chapter looks at the importance of the independence of the judge, and how Lord Bingham has dealt with this in his work. In order to secure independence it is not sufficient to prevent the dismissing and appointing of judges by the executive, one must also prevent the executive from unduly exerting influence on judicial decision making.

It is a truth universally acknowledged that the constitution of a modern democracy governed by the rule of law must effectively guarantee judicial independence. So many eminent authorities have stated this principle and there has been so little challenge to it, that no extensive citation is called for. It is enough to recall that in 1994 the United Nations Commission on Human Rights recorded that it was. The Commission went on to appoint a Special Rapporteur to monitor and investigate alleged violations of judicial and legal professional independence worldwide, and to study topical questions central to a full understanding of the independence of the judiciary. There have been two approaches. One concentrates on the independence of individual judges. The alternative approach treats the independence of the judge to decide individual cases free from extraneous influence. This is the approach which Lord Browne-Wilkinson persuasively advocated in his F.A. Mann Lecture.

This chapter explains why the struggle for judicial independence attracts high hopes from advocates of political liberalization and constitutional reform. It explores the various tools that judges have, acting individually and collectively, to pursue the path of constitutional Reform. Furthermore, it examines the degree to which judges have been successful. It then explains the limits and potentialities of judicial activism by focusing on the electoral process. Finally, it concludes by showing why judicial accomplishments, while significant, are unlikely to lead by themselves to a fundamentally different political order. It focuses as much on the limitations of the judiciary as on its potentialities. It seeks to present not a celebratory tale of resistance to oppression but rather a political analysis of the genuine prospects for change.

Orthodox constitutional thinking suggests that scrutiny of judicial decisions by parliamentarians would be inconsistent with judicial independence, and that ministers (in particular the Lord Chancellor) should be answerable to Parliament for operational aspects of the judicial system. Significant changes to the reach of judicial power into public policy (through judicial review, the Human Rights Act 1998 and European Union law) and radical restructuring of the basic constitutional architecture of the judicial system (by the Constitutional Reform Act 2005) call into question the suitability of the orthodox model of independence and accountability for the twenty-first century. Analysis of the parliamentary record demonstrates that parliamentarians can, and do, scrutinize a wide spectrum of decision-making by judges. The cordon sanitaire around judges has been lifted and more nuanced but still uncertain understandings of how to achieve parliamentary accountability while preserving judicial independence are emerging.

This chapter examines the role played by the judges in creating the procedural rules which govern the functioning of the ad hoc Tribunals. Noting that the bench had been tasked with devising its own rules of procedure and evidence, it queries whether judicial lawmaking in this context at the Tribunals has proven effective on the whole. It highlights the lack of transparency regarding the process of amending the Rules of Procedure and Evidence, and the possibility that this lawmaking power may undermine judicial independence and conceptions of the separation of powers. In considering possible lessons to be learned, the chapter asks whether the ad hoc Tribunals may themselves have contravened international human rights law, most notably in relation to the mechanism allowing for provisional release.

Canada has no single document that is customarily described as ‘the constitution’. The closest approximation of such a document is the Constitution Act 1867, which was originally named the British North America Act 1867. This is a statute of the United Kingdom Parliament that created the new Dominion of Canada by uniting three of the colonies of British North America and by providing the for the admission of all the other British North American colonies and territories. This chapter presents an overview of Canada's constitution and discusses its interpretation, the Supreme Court of Canada, separation of powers, problems of constitutional interpretation, interpretation of the residuary clause, interpretation of the Charter of Rights, interpretation of Aboriginal rights, interpretation of judicial independence, sources of interpretation, constitution as statute, legislative history, modes of interpretation, originalism, unwritten constitutional principles, influences on interpretation, dialogue between the Court and legislatures, presumption of constitutionality, and formalism and creativity.