Comparative Law and Society
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Comparative Law and Society

Edited by David S. Clark

Comparative Law and Society, part of the Research Handbooks in Comparative Law series, is a pioneering volume that comprises 19 original essays written by expert authors from across the world. This innovative handbook offers both a history of the field of comparative law and society and a thorough exploration of its methods, disciplines, and major issues, presenting the most comprehensive look into this contemporary field to date.
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Chapter 10: Judges, their Careers, and Independence

Carlo Guarnieri


Carlo Guarnieri* Modern political systems entrust judges with the function of adjudicating disputes arising from the application of recognized legal norms. In constitutional democracies, judges enjoy strong guarantees, regulated by ordinary statutes, organic laws, constitutional norms and often supported by settled practices. However, although within a set of common principles, comparatists can single out different legal traditions—with significant implications for the status of judges. 1 JUDICIAL IMPARTIALITY AND INDEPENDENCE One cannot analyze the status of the judge without taking into consideration its institutional function: adjudication. Adjudication is a type of dispute resolution that relies on an independent, third-party facilitator: an externally appointed judge.1 Therefore, the freedom of action of the parties to the dispute is limited. They must comply with the judge’s decision, even though they have no control over the choice of judge, whom the state imposes. In general, judicial proceedings are much more effective than other proceedings—such as mediation or arbitration—because they do not need the consent of both parties to achieve a resolution of the dispute. However, one should weigh this effectiveness against the risks for the disputing parties who must relinquish much more control over the proceeding. Judicial proceedings are usually initiated without mutual consent, as legal disputes are triggered by the action of one party against another. In some cases, for example in criminal proceedings, a public prosecutor acting on behalf of the state can initiate proceedings, not only against the will of the accused, but also without the consent of the...

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