Effects of an Independent Judicial System on the Democracy of the State

There has been a substantial amount of literature done on the concept of judicial independence and the factors surrounding it, as it is a very controversial topic and needs precise analyses to fully understand. The findings within the extensive literature done on judicial independence brings light to the reason why many free and democratic political systems and societies find forms of judicial independence advantageous and incorporate it into their systems. However, this raises the question of whether judicial independence strengthens democracy and there is often debate for and against this idea identified in the literature. Although it is largely agreed upon that the ability of courts to provide legal checks against other branches of government without undue political influence[1] is important and that the judiciary plays a vital role in the development of democracy, there has been debate about whether this is always the case. It is also found that the development of an independent judiciary can be constrained by outside influences, decisions made that we are not in favor of, lack of accountability, and etc. If the judiciary does not have enough authority to make decisions or ability to hold constitutional responsibility, democratic progress may falter.[2] This paper will be focusing on the effects of an independent judicial system on the democracy of the state by examining both sides of the spectrum and in turn argue that judicial independence strengthens democracy.

The literature on the definition of judicial independence is extremely varied due to the different amounts of conceptual differences there are regarding this topic. However, despite an almost universal consensus to its normative value, judicial independence may be one of the least understood concepts in the field of political science and law.[3] At the most basic level, as noted by Martin Shapiro, judicial independence is related to the notion of conflict resolution by a “neutral third;” in other words, someone who can be trusted to settle disputes by considering only the facts and their relation to relevant laws.[4] This includes the belief that judges will not be influenced by improper or external pressures when making decisions on cases in order for it to be decided fairly and in accordance with the law.[5] Some define these concepts as the ability to make judicial decisions, without any intervention in the decision-making process and be limited only by law and the Constitution.[6] It is possible that courts, during the adjudication of disputes may be subjected to a number of influences including other branches of government, judges, society, public opinion, etc. These possible outside influences may have an interest in how individual cases are resolved by the court. Thus, if any of these exogenous influences had a power or ability to control over courts in the adjudication process, then it can be said that judicial independence is insufficient.[7] The only prominent influence over courts that is generally agreed upon to be a proper and controlling influence would be the law. Courts are expected to make rulings according to the law along with taking into account the assumption that the law is meant to achieve justice. Furthermore, judicial independence can also be defined as a way of constituting other fundamental principles such as judicial impartiality or the rule of law.[8] Specifically, “impartiality” refers to a state of mind or the attitude of the tribunal relating to the issues of a case and the parties of a particular case. Independence, however, suggests not only a state of mind or attitude in the exercise of judicial functions but a status or a relationship to others, specifically to the executive branch of government, which rests on objective conditions or guarantees.[9] For the judiciary to be independent (and therefore perceived as impartial), it cannot be viewed as an addition of the political branches of government. The appearance of impartiality is also necessary for the public to believe the judiciary is a legitimate component of triadic structure, rather than a politically based actor. [10]  Furthermore, it has been recognized that an independent judiciary is the key to upholding the rule of law in a free society. The protection of human rights depends on the guarantee that judges will be free and reasonably be perceived to make impartial decisions based on the facts and law in each case and exercise their role as protectors of the constitution without any outside pressures or interference, especially from government.[11]

Lastly, judicial independence is most conspicuously explained through an institutional approach defining the concept as a state that does not penalize judges for decisions they make which therefore allows them to be independent through various guaranteed elements. The penalties that the judge cannot receive include factors such as termination, salary reductions, imprisonment, and other harms. It recognizes the difference of independence from impartiality concerning judges and their decisions.[12]

In reference to judicial independence during the democratization process; its manifestations, limitations, and meaning as well as the method have not been thoroughly explored in the literature.[13] However, it is found that principles of democracy align with those of judicial independence. Ian Greene argues that democracy is founded on the principle of mutual respect. Five subprinciples are derived from mutual respect: social equality, deference to the majority where consensus cannot be reached, protection for minority rights, respect for individual freedom and integrity. These principles in turn create two basic duties for public-sector officials and judges: impartiality, and a duty to act in the public interest.[14] With what is known, most individuals would agree that the ability of courts to provide legal checks against other branches of government without undue political influence is important; this judicial independence offers protection for minority rights and checks against other abuses of power by the political branches of government. It is found to be a necessary component of democracy.[15] The judiciary’s intervention in the political system is profound, influencing the link between the state and citizens, as well as the relationship between various social actors.[16] The protection of judicial independence is enforced so that parties will know they are dealt with fairly, that they received a fair trial, and a fair hearing from a judge without any improper outside influence and who was bound by their oath, which is to render justice according to law.[17] Therefore, the community must have confidence in its system of justice and be comfortable in the knowledge that fairness, openness, and immunity from improper influence are characteristics of its judiciary. In this way, the community can believe that all citizens can expect the same treatment according to the Rule of Law. [18] With these assurances judicial independence brings, it upholds democratic principles such as stated by Ian Greene.

This leads to the reason why many democratic political systems find some type of judicial independence to be advantageous and consolidate judicial independence into their systems. Free and democratic societies by large proceed with principles and standards of fairness and justice in the when resolving legal disputes, by following the facts and previously established law. If the courts can possibly be affected by exogenous variables and outside pressures, then it can be said that the decisions of the courts likely will not be founded on the facts and previous law.[19]

On the other hand, the literature shows some form of argument against the concept of judicial independence in relation to democracy. Shapiro discusses that judicial independence is much of a problem as it is a solution in regard to democracy. This is due to the fact that the main responsibility of judges is to form resolution in disputes and independence is essential in order to succeed in that goal. Judges, however, don’t only resolve disputes, judicial courts are courts of law that resolve disputes according to the law. To settle disputes, judges must interpret what the law is. Whoever interprets the law or says what a legal text means, to some degree, at sometimes, and under some circumstances, makes the law.[20]  

However, to refute this idea, the fundamental task of courts is conflict resolution; to resolve disputes and conflicts in a fair manner, and in order to be successful in doing so, judicial independence is essential. Successful conflict resolution requires some sort of judicial lawmaking because judicially imposed resolutions are most easily accepted when they appear to be the product of pre-existing legal rules. It is contingent upon the judges to interpret or make such rules when deciding cases where a sufficiently applicable rule is not otherwise provided.[21]  A judge is not free to rule on this or that case, and failure to rule constitutes a denial of justice. Therefore, the denial of justice, which is considered a crime in most nations, is possible where judges are not independent enough to make decisions based on their interpretations of the law. [22]

The argument against further goes on to say that if judges make law, they must not be absolutely independent and must be accountable to someone.[23] Additionally, it is said that judicial independence should be considered as a set of powerful arguments to justify and protect from attack, the decisions that we agree with. However, these very arguments might be ignored in favor of attacks or when judges make decisions that we disagree with.[24] Furthermore, one of the most important contributions of political science to the study of law is that judges are heavily motivated in their decisions by their values and attitudes and it is still unknown about how much judicial decision makers are actually influenced by law.[25] Furthermore, courts with guarantees of independence should be freer to exercise their own will and consequently should have more opportunities to engage in judicial review. These guarantees involve certain features that could possibly influence judicial conduct. For example, scholars have argued that judges without life tenure are more constrained by political pressures than judges with life tenure. Individuals whose judicial careers are not secure are more easily able to be harmed or influenced by external pressures and may, as a result, make decisions that are not fair and unbiased.[26] Thus, this appears to cause difficulties for judges to follow their constitutional responsibility and provide fair and impartial justice.

However, as mentioned earlier, one prominent and agreed upon influence on courts in order to properly adjudicate disputes, is the law.[27] If judges’ rulings reveal patent ignorance of the law or gross negligence, it creates disciplinary and civil liability. This can be explained by the reference to the ethical-legal legitimization of the judge’s power, since a judge must rule according to the law: a person ignorant of the law cannot ascend to the bench.[28] The argument against judicial independence in relation to democracy suggests that asking judges to be both independent and accountable would appear to be a contradiction in terms. The more mechanisms in place to ensure an independent judiciary, the more difficult it will become to hold judges accountable, and the more focus on accountability for judges, the less independent they can be.[29] However, under certain conditions, independence and accountability are not contradictory and can co-exist. The notions of independence and accountability show that these values can coexist of good justice.[30] Although judges are independent, they are accountable for their decisions through the appeals process. Their decisions can be examined by a higher court. If a court of appeal finds that the judge has made an error, a new trial will be ordered, and the decision will be corrected, or a more appropriate sentence will be imposed.[31] Judges cannot refuse to hear a case if it is potentially difficult or unpopular, but occasionally a judge will have to refuse to hear a case if they have any connection with one of the parties, or some other conflict of interest.[32] Additionally, giving judges life tenure can be seen as a way to protect them from political pressure in cases that will eventually appear before them.[33]

To further provide justification and reasoning concerning the arguments against judicial independence, there is insurances of judicial independence that rid the fear of impartiality.  Judicial independence means that judges are not subject to pressure and influence and free to make good decisions based solely on fact and law.[34] This independence of judges in ensured by three factors. The first is security of tenure – which entitles a judge to serve on the bench until the age of retirement, unless there is good reason for them to be removed by office.[35] The Canadian Judicial Council, a body of Chief Justices and Associate Chief Justices from across Canada, investigate complaints about federally-appointed judges. Any member of the public can file a complaint which ensures that public concerns about judges are being heard and taken into consideration.[36] If the Council finds that the complaint is not serious enough to potentially remove a judge, the Council can issue an official expression of concern, or recommend that the judge undergo specific actions to address the issue. If the complaint is serious enough that it could lead to the removal of the judge from office, the matter is taken under a longer process which proposes a recommendation to the Parliament for their removal.[37] For example, in March 2017, the Council recommended that Justice Robin Camp be removed from office. Justice Camp resigned instead of being removed by Parliament. The council’s ruling reads that they found that the judge’s conduct was extremely detrimental of the concept of impartiality, integrity, and independence of the judicial role.[38]

The second insurance of independence is financial security – which ensures that judges are paid sufficiently so they are not dependent on or subject to pressure from other institutions. [39] This also proves efficient in the argument against judicial independence in relation to democracy, where it is said that there should be more guarantees involving certain features that could influence judicial behavior. It also provides stability in the concept of impartiality where there are arguments stating that judges are motivated in their decisions by their values or attitudes and that it is uncertain about how much judicial decision makers are impacted by law and legal tradition. The third insurance of independence is administrative justice – in which the chief justice in each province and territory decides how that court manages the litigation process and which cases the judge will hear.[40] Judicial accountability therefore can be seen even in judicial independence in democratic states. Judges must be free to make legally correct but politically unpopular decisions, and judicial independence must not be subject to the impulses of the public. Bodies such as the Canadian Judicial Council allow for judicial accountability in a transparent and fair process that takes into account the important of public confidence in the judiciary and permits the concerns of the public to be heard and addressed.[41] This allows for judicial independence to align with democratic principles previously mentioned.

In conclusion, taking into account the existing literature that has been done on some democratic principles and the insurances that judicial independence presents, judicial independence showcases itself to strengthen and uphold democracy. An independent judiciary plays a vital role in a democratic society as principles of judicial independence align with principles of democracy such as fairness and the rule of law. This is laid out in judicial independence as undue political influence is important and offers protection for minority rights and checks against other abuses of power. The principle of impartiality is also found to be a necessary component in democracy as a fundamental principle of democracy is fairness and impartiality ensures this fairness to citizens. Taking into consideration arguments from the other side of the spectrum (arguments against judicial independence strengthening democracy) such as outside influences being constraining, lack of accountability, and etc., it was found that the insurances of judicial independence provide a safeguard from the difficulties that judicial independence can deem to bring. Independence and accountability can co-exist, presenting the idea that judges can be held accountable in certain circumstances. Additionally, constitutional guarantees of tenure and compensation can also secure judicial independence. This conclusively shows that judicial independence principles align with democratic principles previously mentioned throughout this paper and thus overall contends that judicial independence strengthens democracy.

Bibliography

• Breyer, Stephen. (2007). “Judicial Independence: Remarks by Justice Breyer.” The Georgetown Law Journal 95 (4): 903.
• Canadian Judicial Council. “Why is Judicial Independence important to you?” (2016) – 48
• Canadian Judicial Council. “What do Judges do?” Resource Centre. Accessed November 23, 2018.
• Crawford, Alison. (2017). ”Judge in ‘Knees Together’ Sex Assault Case Resigns After Judicial Council Recommends Removal. CBC News.
• Ebel, David M. (2011). Judicial Independence Foreword. Denver University Law Review 88 (2) – 313-323.
• Friedland, Martin. 1996. “Judicial Independence and Accountability: A Canadian Perspective.” Criminal Law Forum 7 (3): 605-637
• Gilbert, Michael D., ‘Judicial independence and social welfare’ (2014) 112(4) 582-583
• Greene, Ian. (2008). “Democracy, judicial independence, and judicial selection for federally appointed judges.” University of New Brunswick Law Journal 58: 105.
• Hartley, Roger. (2011). Judicial Independence as a Political Argument. Law and Courts Newsletter. 21. 21-25.
• Herrero, Alvaro., Lopez, Gasper. “Access to Information and Transparency in the Judiciary.” World Bank Institute (2010).
• Herron, Erik S., and Kirk A. Randazzo. “The Relationship Between Independence and Judicial Review in Post-Communist Courts.” The Journal of Politics 65, no. 2 (2003): 422-38
• Hughes, Patricia. (2001) ‘- Judicial Independence: Contemporary Pressures and Appropriate Responses.’ Canadian Bar Review 80. 1-2 – 182.
• Larkins, Christopher M. “Judicial Independence and Democratization: A Theoretical and Conceptual Analysis.” The American
• Journal of Comparative Law 44, no. 4 (1996): 605-26. 
• Ostroff, Alexander. (2018). “Judicial Accountability vs. Judicial Independence: Contrasting Approaches in Canada and the United States.” Lockyer Campbell Posner Criminal Lawyers.
• Préfontaine, C. Daniel., Q.C., Lee, Joanne. (1998). “The Rule of Law and the Independence of the Judiciary.” World Conference on the Universal Declaration of Human Rights.
• Pérez-Perdomo, Rogelio. (2000). “Judicial Independence and Accountability.” 1-10.
• Randazzo, Kirk A., Douglas M. Gibler, and Rebecca Reid. 2016. “Examining the Development of Judicial Independence.” Political Research Quarterly 69 (3): 583-593.
• Shapiro, Martin. Courts: A Comparative and Political Analysis 1-8 (1981).
• Shapiro, Martin. “Judicial Independence: new challenges in established nations.” Indiana Journal of Global Legal Studies 20, no. 1 (2013): 253-277.

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[1] Randazzo, Kirk A., Douglas M. Gibler, and Rebecca Reid. 2016. “Examining the Development of Judicial Independence.” Political Research Quarterly 69 (3): 583.

[2] Herron, Erik S., and Kirk A. Randazzo. “The Relationship Between Independence and Judicial Review in Post-Communist Courts.” The Journal of Politics 65, no. 2 (2003): 423.

[3] Larkins, Christopher M. “Judicial Independence and Democratization: A Theoretical and Conceptual Analysis.” The American Journal of Comparative Law 44, no. 4 (1996): 607. 

[4] Shapiro, Martin. Courts: A Comparative and Political Analysis (1981): 15.

[5] Herron, Erik S., and Kirk A. Randazzo. “The Relationship Between Independence and Judicial Review in Post-Communist Courts.” The Journal of Politics 65, no. 2 (2003): 423.

[6] Ebel, David M. (2011). Judicial Independence Foreword. Denver University Law Review 88 (2) – 313-323.

[7] Breyer, Stephen. (2007). “Judicial Independence: Remarks by Justice Breyer.” The Georgetown Law Journal 95 (4): 903.

[8]  Hughes, Patricia. (2001) ‘- Judicial Independence: Contemporary Pressures and Appropriate Responses.’ Canadian Bar Review 80. 1-2 – 182.

[9] Friedland, Martin. 1996. “Judicial Independence and Accountability: A Canadian Perspective.” Criminal Law Forum 7 (3): 617.

[10] Herron, Erik S., and Kirk A. Randazzo. “The Relationship Between Independence and Judicial Review in Post-Communist Courts.” The Journal of Politics 65, no. 2 (2003): 583.

[11] Préfontaine, C. Daniel., Q.C., Lee, Joanne. (1998). “The Rule of Law and the Independence of the Judiciary.” World Conference on the Universal Declaration of Human Rights.

[12] Gilbert, Michael D. “JUDICIAL INDEPENDENCE AND SOCIAL WELFARE.” Michigan Law Review 112, no. 4 (02, 2014): 582.

[13] Larkins, Christopher M. “Judicial Independence and Democratization: A Theoretical and Conceptual Analysis.” The American Journal of Comparative Law 44, no. 4 (1996): 607. 

[14] Greene, Ian. “Democracy, judicial independence, and judicial selection for federally appointed judges.” University of New Brunswick Law Journal, Annual 2008: 105.

[15] Randazzo, Kirk A., Douglas M. Gibler, and Rebecca Reid. 2016. “Examining the Development of Judicial Independence.” Political Research Quarterly 69 (3): 583.

[16] Herrero, Alvaro., Lopez, Gasper. “Access to Information and Transparency in the Judiciary.” World Bank Institute (2010) – 3.

[17] Hartley, Roger. (2011). Judicial Independence as a Political Argument. Law and Courts Newsletter. 21. 21-25 – 1.

[18] Canadian Judicial Council. “Why is Judicial Independence important to you?” (2016) – 48

[19] Breyer, Stephen. (2007). “Judicial Independence: Remarks by Justice Breyer.” The Georgetown Law Journal 95 (4): 903.

[20] Shapiro, Martin. “Judicial Independence: new challenges in established nations.” Indiana Journal of Global Legal Studies 20, no. 1 (2013): 253

[21] Shapiro, Martin. “Judicial Independence: new challenges in established nations.” Indiana Journal of Global Legal Studies 20, no. 1 (2013): 273.

[22] Pérez-Perdomo, Rogelio. (2000). “Judicial Independence and Accountability.” – 5.

[23] Shapiro, Martin. “Judicial Independence: new challenges in established nations.” Indiana Journal of Global Legal Studies 20, no. 1 (2013): 254

[24] Hartley, Roger. (2011). Judicial Independence as a Political Argument. Law and Courts Newsletter. 21. 21-25 – 1.

[25] Hartley, Roger. (2011). Judicial Independence as a Political Argument. Law and Courts Newsletter. 21. 21-25 – 1.

[26] Herron, Erik S., and Kirk A. Randazzo. “The Relationship Between Independence and Judicial Review in Post-Communist Courts.” The Journal of Politics 65, no. 2 (2003): 425.

[27] Hughes, Patricia. (2001) ‘- Judicial Independence: Contemporary Pressures and Appropriate Responses.’ Canadian Bar Review 80. 1-2 – 182.

[28] Pérez-Perdomo, Rogelio. (2000). “Judicial Independence and Accountability.” – 6.

[29] Pérez-Perdomo, Rogelio. (2000). “Judicial Independence and Accountability.” – 1.

[30] Pérez-Perdomo, Rogelio. (2000). “Judicial Independence and Accountability.” – 6.

[31] Ostroff, Alexander. (2018). “Judicial Accountability vs. Judicial Independence: Contrasting Approaches in Canada and the United States.” Lockyer Campbell Posner Criminal Lawyers.

[32] Canadian Judicial Council. “What do Judges do?” Resource Centre. Accessed November 23, 2018.

[33] Herron, Erik S., and Kirk A. Randazzo. “The Relationship Between Independence and Judicial Review in Post-Communist Courts.” The Journal of Politics 65, no. 2 (2003): 425.

[34] Canadian Judicial Council. “What do Judges do?” Resource Centre. Accessed November 23, 2018.

[35] Canadian Judicial Council. “What do Judges do?” Resource Centre. Accessed November 23, 2018.

[36] Ostroff, Alexander. (2018). “Judicial Accountability vs. Judicial Independence: Contrasting Approaches in Canada and the United States.” Lockyer Campbell Posner Criminal Lawyers.

[37] Ostroff, Alexander. (2018). “Judicial Accountability vs. Judicial Independence: Contrasting Approaches in Canada and the United States.” Lockyer Campbell Posner Criminal Lawyers.

[38] Crawford, Alison. (2017). ”Judge in ‘Knees Together’ Sex Assault Case Resigns After Judicial Council Recommends Removal. CBC News.

[39] Canadian Judicial Council. “What do Judges do?” Resource Centre. Accessed November 23, 2018.

[40] Canadian Judicial Council. “What do Judges do?” Resource Centre. Accessed November 23, 2018.

[41] Ostroff, Alexander. (2018). “Judicial Accountability vs. Judicial Independence: Contrasting Approaches in Canada and the United States.” Lockyer Campbell Posner Criminal Lawyers.