Home | Databases | WorldLII | Search | Feedback Edited Legal Collections Data

Harnay, Sophie --- "Judicial Independence" [2005] ELECD 151; in Backhaus, G. Jürgen (ed), "The Elgar Companion to Law and Economics, Second Edition" (Edward Elgar Publishing, 2005)

Book Title: The Elgar Companion to Law and Economics, Second Edition

Editor(s): Backhaus, G. Jürgen

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420321

Section: Chapter 27

Section Title: Judicial Independence

Author(s): Harnay, Sophie

Number of pages: 17

Extract:

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 constitu-
tion 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 ...