Judicial Independence as Ambiguous Reality and Insidious Illusion
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There is no single proper model for the shape and function of the judiciary in a liberal—democratic society. The very different ways that common law and civil law systems structure relations between judges and prosecutors is just the most commonly discussed example of variation among recognizably liberal legal orders. Every known way to organize the recruitment, promotion, and disciplining of judges has its own peculiar pathologies and is susceptible to some form of serious abuse. The coexistence of multiple competing, and invariably flawed, models for the organization of a liberal—democratic judiciary does not pose an insurmountable obstacle to domestic reformers and international development agencies seeking to promote progressive legal change. A much more serious problem is the lack of any well-established consensus about proper criteria for evaluating judicial performance. What tasks should be assigned to a well-functioning liberal—democratic judiciary? And how can we determine if these tasks are being performed adequately or inadequately? Fifty years of experience with Technical Legal Assistance (TLA) has made painfully clear the elusiveness of simple criteria for evaluating successful legal reform. Most experts now agree, for instance, that improving the efficiency of courts (by providing more clerks, better-equipped bailiffs, better-trained court administrators, improved docket-management techniques, and so forth) has the paradoxical effect of swelling, rather than shrinking, case backlogs. This is true because of the elasticity of demand for law. That is to say, a “more efficient” courtroom will create an incentive for social actors to “judicialize” disputes that they would have otherwise tried to resolve extra-judicially. One reason we still lack clear criteria for evaluating efforts at legal reform, domestic or international, is that no agreement exists in the TLA community about the inherent value of judicializing disputes that could be resolved in a non-judicial manner. A current American example illustrates another reason why judicial performance is so difficult to evaluate, making it hard to reach consensus about the precise goals of judicial reform. The Freedom of Information Act now allows ordinary citizens of the United States to use the court system to force the government to disclose documents that had previously remained secret. This is a considerable enhancement of the power of the judiciary over executive-branch officials. The perverse and unexpected result has been that State Department operatives have increasingly come to conduct sensitive transactions with foreign governments without leaving a paper trail. This means that, when a new administration comes into office, it has a much more difficult time mastering the current state of government commitments to foreign powers. That such an enhancement of judicial power over the executive is not necessarily a benefit to democracy is the least that might be said. Basic disagreements about the goal of judicial reform also extend to the question of “judicial independence.” Part of the problem is that a judiciary in transitional countries can become formally independent while remaining informally dependent, as when housing, security, and medical care for judges hinges on discretionary spending by the Ministry of Justice or by some other branch of government, national or local. This mock independence, in fact, is rather typical in transitional societies, where a large premium is placed on a sham accommodation to liberal norms, appreciated by Western observers, which does not seriously infringe the government’s ability to harass rivals and critics using instruments of law. It should be noted, in this context, that covertly authoritarian regimes can easily allow 80%–90% of the judiciary to act in a genuinely independent fashion, deciding cases according to conscience with no instructions from the government. This is not a problem for an ostensibly reforming but residually autocratic regime, so long as the government retains the latent capacity to channel politically sensitive cases to a handful of “reliable” judges. Indeed, the self-advertised and perfectly sincere pride of the majority of judges in their genuine independence can provide a very effective cover for still-authoritarian regimes that nevertheless need to market themselves to international donor and lender organizations as well as to potential foreign investors.
Source Publication
From Liberal Values to Democratic Transition: Essays in Honor of János Kis
Source Editors/Authors
Ronald Dworkin
Publication Date
2004
Recommended Citation
Holmes, Stephen, "Judicial Independence as Ambiguous Reality and Insidious Illusion" (2004). Faculty Chapters. 802.
https://gretchen.law.nyu.edu/fac-chapt/802
