Is Judicial Independence a Useful Concept?

Abstract

This chapter has two theses. First, I argue that the confusion over the meaning of judicial independence cannot be eliminated. Second, I argue that judicial independence is not a useful, analytic concept. It does not promote either our understanding of how courts function or the design of desirable judicial institutions. Debate over these issues of understanding and design would advance more quickly if we abandoned the use of the concept: Jurisprudential debates over judicial independence would explicitly address the controversial theories of adjudication that underlie current debates, while inquiries into the effects of various institutional features on judicial performance would proceed without a fruitless diversion into the role of judicial independence. These two theses are related. The ineliminability of definitional issues provides one reason that the concept of judicial independence is not useful. Consequently, the discussion begins with the question of definition. I then proceed to discuss the utility of the concept in social science and constitutional design.

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 73 citations exist upstream.