Edited by Jürgen G. Backhaus
Chapter 27: Judicial Independence
Sophie Harnay Although the idea that the judiciary should be independent is relatively new and the mixing of judicial, legislative and executive duties commonplace for most of history, an independent judiciary is now seen both as a salient feature of a government under the rule of law and as the core of many constitutional arrangements in most developed countries as well as in the legal literature. A number of constitutional and legal writings by political philosophers and constitutional lawyers, including John Locke, Charles-Louis de Secondat Montesquieu, James Madison and Thomas Jefferson have deﬁned judicial independence as an essential aspect of the separation of powers, central to the conception of the judiciary as the third branch of government. In this view, the separation of power into different functions, to be exercised by distinct branches of government that mutually check and balance each other, is aimed to prevent the government bodies from abusing the power that the constitution assigns to them. Within this framework, an independent judiciary is required to look after the balance of powers and to sanction possible unlawful abuses of power by the other branches. This requires that the decisions of the courts will not be altered or ignored by the other branches of government when they are in charge of their enforcement. Threats to judicial independence are issued not only by the political branches of government but also by the particular interests at work in the judicial process. Judicial independence therefore also includes freedom from any external...
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