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Judicial independence, independent judges and judicial power: a puzzle?*

Carlo Guarnieri

Speech delivered at the seminar on Institutional and Socio-Political Determinants of

Judicial Independence (in Latin America)

(Utrecht December 1st, 2015)

Tentative Draft

Today, judicial independence (JI) seems to have become a universally recommended recipe for

good government and, more precisely, for establishing the rule of law (RoL), in turn

universally considered a goal to be achieved in order to support economic and social

development. Several international and supranational actors have played an important role in

the process: the World Bank, the OCSE, and of course the EU and the Council of Europe.2

Recently, in 2010, the Council of Europe has recommended one of the most sweeping - but

increasingly popular - definition of JI: according to which . .in their decision making judges

should be independent and impartial and able to act without any restriction, improper

influence, pressure, threat or interference, direct or indirect, from any authority, including

authorities internal to the judiciary.". (R 2010, n. 12 at 22, bold characters added)

1. The meaning of judicial independence

However, notwithstanding these bold statements, the concrete meaning of judicial

independence it not always clear. In fact, there are several, different definitions of JI.

Let us consider them briefly. For instance, de jure JI usually refers to all those legal

arrangements aiming at protecting judges from illicit interferences when performing their

institutional function, i.e. adjudicating. Nevertheless, these arrangements remain often only on

paper. Therefore, another concept is in need de facto JI refers to a situation in which those

guarantees are implemented and become effective. However, institutional guarantees of

independence, even when implemented, do not guarantee per se that judges will really behave

2 see also, if available, the recently issued 18th opinion of the CCJE:
https://wcd.coe.int/ViewDoc.jsp?Ref=CCIE(2015)4&Language=lanEnglish&Ver=original&BackColo
rInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864
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in a truly independent, i.e. impartial way (on this point more later), when adjudicating. So, a

further distinction must be introduced between institutional JI and behavioral JI - or judicial

autonomy or "independence on the bench" (O'Brien 2001). In addition, the discussion is made

more complicated when

- as it is sometimes the case - JI is likened to judicial power: a situation in which independent

judges exert significant authority in a political system, i.e. they are able to adjudicate a vast

array of politically significant cases (i.e. cases whose outcome can affect the political process).

It is necessary to take into account all these differences when analyzing the concept JI, since

they are not without consequences (Brinks 2005). However, in order to clarify further the

meaning of JI it is necessary to look at its rationale (Russell 2001).

2. The rationale of judicial independence: why JI?

In fact, so far we have not explained why judges should be independent. Which are the

reasons behind the request than judges be protected from external influences?

a. The most convincing answer is, without doubt, that provided for by Martin Shapiro

(1981),3 who points at the basic logic of the adjudicative triad. According to this

view, the most important goal of judicial independence is to support judicial

impartiality in adjudication, since a judge depending on one of the parties to the

case cannot be - and cannot seem to be - impartial. An impartial judge plays an

important role in building consensus by the parties toward the judicial procedure

and its outcome - the decision by the judge - in this way inducing acceptance and

therefore assuring a more effective dispute resolution. The parties to the disputes

will be more likely to accept - and obey - a decision made by a judge they believe to

be impartial.

b. Judicial impartiality is a crucial element in the process of adjudication. In fact, it is

supported also by the fact that the judge, when adjudicating, must follow rules:

procedural and substantive. Procedural rules granting the parties an effective

participation in the proceeding can better absorb their possible delusion for a

3 And T. Eckhoff (1965).

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negative decision. Substantive rules constrain judicial discretion and shift

responsibility of the decision to those having enacted the rule: i.e. the political

system or the society. In other words, by being based on recognized rules the

decision can be presented as the result not of the arbitrary will of the judge but of

the whole society.

c. As we are going to see later on, in cases in which a party to the dispute represents

a branch of the State JI becomes an instrument of constraining political power, i.e.

of subjecting that power to the law, and therefore assumes a clear political

significance.

3. The points of reference of judicial independence

If JI is designed to allow judges to decide impartially disputes, the most immediate

reference points of independence are the parties to the case. So, the judge must be

protected from undue interference by them and especially by one of them at the expense of

the other4.

a. First of all, judges must be protected by private parties' pressures and this has been

achieved in most Western countries by incorporating judges into the organization

of the State, i.e. by putting them under State protection5 . The incorporation of

judges into the organization of the State obviously raises the problem of their

independence from the State, i.e. from the other branches.

b. The protection of judges by State interferences has increasingly become the main

goal to pursue.6 A goal that can be achieved thanks to a specific institutional

setting, i.e. institutional independence. Guarantees of independence are usually

listed in most constitutions (also because of the international pressures we have

seen above) and in several influential international documents. Of course, the

4 It has been remarked that not all interference must be banned but only those exerted by one of the
parties at her advantage. See Brinks 2005 and also Popova 2012.
5 See also the role of "Big Men" in adjudicating between "small men" in some societies (Marradi

1983).
6 Sometimes, at the expense of the need of assuring that judges be free also from private parties'

interference.
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distinction between de jure and de facto is significant here: institutional guarantees

must not remain on paper, but be implemented in order to effectively protect

judicial impartiality.

c. However, if the aim of JI is to assure judicial impartiality in adjudication, are we

sure that institutional JI is really inducing impartial behavior on the part of the

judges? In fact, institutional JI does not seem per se conducive to judicial

impartiality.7 An institutionally independent judge can be corrupted by one of the

parties or biased against or in favor of one of the parties. More, she can pursue her

particularistic whims under the protection of institutional JI. Of course, there are

remedies to corrupt behavior, but pursuing a corrupt judge is always a complex

matter, for no other reasons but the need of surmounting her guarantees of

independence. Remedies are even more difficult to find in the case of partisan or

biased decisions, since often we enter here the realm of opinions: it is not always

easy accurately identify what a "partisan" decision really is.

d. In fact, institutional JI is often coupled with a process of intense socialization of

judges to law. We have already emphasized the legitimizing role of the law.

Therefore, is not surprising that judges are trained to follow the law and apply it in

an impartial and unbiased way. JI can achieve its end only if it is sustained by an

effective process of socialization, supported in turn by a coherent organizational

setting: effective selection of judges, adequate

training, a continuous process of evaluation of their professional capacities,

disciplinary proceedings for ethical breaches... Only if the judicial organization is

effective in assuring the attachment of judges to the law, and to the ethical rules

related to the judicial function, JI will be also effective in achieving judicial

impartiality. Although the law cannot always be crystal clear - problems of legal

interpretation are always occurring - the judicial organization - in order to assure

judicial impartiality - must assure that judges will stick to consolidated

7A vast amount of research tends to emphasize the weakness of the relationship: see Rios-Figueroa and
Staton 2012; Melton and Ginsburg 2014.
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interpretations of what the law is and depart from them only in exceptional

circumstances, in this case clearly explaining the reasons of their dissent.

e. We have already hinted at the political significance of JI as a tool of constraining

political power through law. If law should be effective in controlling the exercise of

political power, the control must be exerted by independent judges: it is to them to

assess possible violations of the law. Here, the scope - the authority, the jurisdiction

- of independent judges matter: the extent to which they can be able to adjudicate

the behavior of other State actors. So, in order to assess the political significance of JI

- i.e. if JI really plays a role in the political system - the types of cases under judges'

jurisdiction have to be considered: can judges decide only cases between private

parties or also cases in which a State actor is involved? For instance, in several

authoritarian regimes8 courts enjoy some degree of institutional JI but only a limited

jurisdiction: all politically significant cases are entrusted to non-independent

bodies, a way for the State to limit the political impact of independent judges.

f. Finally, if courts can adjudicate also the rules enacted by the political branches -

especially those of parliamentary origin, i.e. statutory law - their political

significance come out further magnified. The need of protecting their impartiality

also in this case implies that the points of reference of

independence should be broadened, to include also legislative bodies. In other

words, it matters whether judges are only under the law or under the Law or, as

Shapiro (2001) has pointed out, whether they are independent at the retail or

wholesale. At this point, the implications for judicial power of this enlargement

of judicial authority should be clear.

4. Some comments on the risks involved in introducing institutional settings aiming at

strengthening JI: the case of some countries of the EU

a. In the EU - but also inside the wider area of the Council of Europe - a very

popular recipe for strengthening JI is the institution of judicial councils and to

8 The paramount case is Francoist Spain.

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entrust to that body all decisions affecting the status of judges. In recent years,

the judicial council has become a veritable "best practice" of JI in Europe.9

b. However, there are different types of judicial councils (in Europe), differing for

composition and powers. The so-called Southern type enjoy wider prerogatives

and tend to represent the whole judicial corps, while the Northern type deals

mainly with administrative matters and is often composed also of ministerial -

i.e. executive - appointees.10

c. At least so far, the Southern type does not seem to have performed

particularly well.11 Its main shortcomings seem to be:

i. the reduction of hierarchical influence brought about by the wide

representation of lower judges in the council can easily become the

dismantling of all professional controls;12

ii. if political appointees are represented in the council - which is often the case -

another channel of political influence is activated, often more penetrating than

the traditional ones;

iii. the fact that judicial representative in the council are often elected tends to

support the growth of factionalism and of some sort of politicking inside the

corps, a fact potentially endangering the image of judicial impartiality;

iv. the strengthening of JI can often translate itself in an increasing

separation of the judiciary from the rest of the legal complex,

supporting some sort of judicial "autism".

d. Therefore, the case of European judicial councils exemplifies the complexities involved

in strengthening JI and the need of a cautious approach, balancing independence with

the functional requisites of good adjudication.

9 Se, e.g. the 2010 CoE Recommendation, especially art. 36 ff..

10 Examples of Southern councils are those of Belgium, France, Italy and Portugal, while
Denmark, Finland and Sweden represent the Northern type.
11 See Garoupa and Ginsburg 2009, Voigt and El Bialy 2013, Bobek and Kosar 2013; and Guarnieri

2014
12 In fact, traditional hierarchical controls are dismantled and not always substituted by other

forms of professional controls or by a more selective recruitment process.

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5. Judicial independence and political power

Recent decades have seen in most democratic (and also in some non democratic) countries an

expansion of judicial guarantees of independence. These guarantees have often been

implemented, supporting judicial impartiality also vis-à-vis the political branches. Since this

expansion depends to a large extent on political decisions, a question has become especially

significant: why the political powers "allow" judges to be/become independent? And in so doing

limiting their very power?

a. A first answer emphasizes the fact that courts can play an important role in the process

of political centralization, by contributing to the enforcement of a national system of

legal norms and therefore supporting the State's monopoly of force. The examples are

several. In Continental Europe (e.g. in France or in Prussia) royal judges, although

dependent on a superior power (the Crown), played an important role in the process of

State building by effectively implementing national rules, their effectiveness deriving

by being considered to be more impartial, since they were independent from local

powers (e.g. feudal lords...). In England, judges in the XVII and especially XVIII

century did much of the same: their independence depending in this case on their

strong relationship with the growing influential parliament.13 In the US, the

nationalizing role of federal courts is well known, the most significant case being

their role in implementing federal civil rights legislation.14 In all these instances,

judges were independent from local actors but dependent on - or under the

influence of - powerful national political actors and national actors supported their

independence at least vis-à-vis local powers. What is interesting is that often, on

the long run, "local" independence turned "national".

b. Rational choice theories addressing the puzzle of JI tend to presuppose political

centralization and State monopoly of legitimate force, referring mainly to the case

13 Until the beginnings of the XIX century the House of Lords performed also as a final court of appeal.
Even later, and until 2005, the prerogative remained, although its exercise was restricted to the law
lords, i.e. the higher judiciary. Above all, the Lord Chancellor assured an institutional connection
between the three branches of the State.
14 But also late XIX century legislation protecting private corporations from local interventions. See

McCloskey, Shapiro 1995.

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of relatively consolidated/modern political systems.15 Their basic argument is that

independent - and powerful - judges can in fact satisfy the interests of political

actors.16 For instance, in the context of a political transition, high uncertainty tends

to exists about future political developments, while also trust among political

actors tend to be low. In this situation, also powerful political actors - rationally

believing the likely possibility to be confined in the future in the opposition - can

be happy to entrust courts with significant powers, in order to check future

majorities.

c. However, we must add that political actors will rationally support judicial

independence only if they perceive that independent judges will take, at least to

some extent, their interests into account. For instance, in England after the Glorious

Revolution, once the influence of the King over the judiciary was radically

circumscribed thanks to the Act of Settlement, (Whig) parliamentary majorities

were generally supportive of JI because they were confident in the attitudes -

favorable to them - prevailing among judges, as we have seen well represented in

Parliament itself.17 As we have seen, European XIX century constitutionalists

wanted the relationship between rulers and ruled governed by law in order to

protect citizens' freedom (Sartori 1987). Judges - coming from the same social

milieus as politicians: the cultivated bourgeoisie - could be trusted to do so, their

role being to adjudicate impartially according to the law disputes between citizens

and the (monarchical) State. Today, in most democratic countries civil rights

groups support JI because they believe - often rightly - that judges will support the

implementation of those very rights they cherish. However, it has also been argued

(Hirschl 2008) that in fact hegemonic - i.e. socially and economically powerful -

groups have most to gain from JI and they know very well that and behave

consequently (Wittington 2005).

15 But see Ostrom and Order without a State?

16 See Ginsburg 2003; Vanberg 2008 and 2015. But see the limits of this reasoning emphasized by
Popova. Much of it later.
17 And often, until 1806, also into the cabinet. See Shetreet 1976.
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d. As we have seen, institutional JI does not guarantees that judges will

necessarily apply the law in an impartial way. Only if an impartial role has been

institutionalized through effective socialization,18 can people be somewhat

confident in judicial impartiality.19 A similar result can be achieved by a strong

connection of the judiciary with the rest of the so-called Legal Complex - the

lawyers - whose main task is, obviously, to implement the law. Of course, groups

having a privileged access to the judiciary - and to the Legal Complex - will also

support JI: this can be often the case of powerful economic interests (Hirschl 2008).

In other cases, the judiciary itself is signaling its "availability" to take into account

the demands of some

groups: for instance, consider the case of groups of "progressive" judges in several

countries of Latin Europe (Guarnieri and Pederzoli 2002; Guarnieri 2007). As we are

going to see, a strong judicial "constituency" is important in order to support judicial

independence and impartiality.

e. In all these developments, the significance of judges' appearance in order to elicit

support from significant political groups is important. But it is even more important

to gain support also from the public at large: in a democracy, popular support can

become an important shield for judges when dealing with attempts at harassing them

carried out by politicians disappointed with judges' decisions (Vanberg 2008; Staton

2010). This is likely to be the reason why smart judges are always keen to polish their

image of impartiality.

6. Some concluding remarks and perspectives (with some possible reference to Latin

America?)

a. An assessment of the perspectives of implementing an effective setting of JI needs to

take into account, first, the - more or less supportive - context in which JI reforms are

implemented: e.g. RoL legacies - i.e. the tradition of law obedience by most political

18And judges know that abuses by them will be sanctioned.

19See the examples put forward by Kapiszewski (2012, 22-35): Brazil - much more professional -
vs. Argentina, more politicized.
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and social actors - the degree of institutionalization of the judicial system, the related

levels of judicial professionalism. .20 It is clear that impartial judges can better flourish

in a political setting characterized by high levels of civil order, a tradition of legal

certainty - in which all State actors tend to follow the law - a well- functioning judicial

system and a good degree of judicial professionalism. The problem is that often these

conditions are more or less wanting: the more they are so, the more difficult to

implement JI.

b. More specifically, to avoid the risk of "electoral democracies" (Popova 2012), that is of

transitional countries in which the competition between political

factions is so intense and institutions so fragile to push politicians to resort to

bribery and violence in order to control courts and employ them against their

adversaries:

i. the time horizon of politicians should not be too short: the regime should

appear to some extent stable. Building powerful political - i.e. party,

parliamentary... - institutions is as important as strengthening JI, and

maybe even more so (Popova 2012).

ii. the range of interests supporting JI should be rather large and judges

should try to take those interests into a balanced account: in other words,

they must make an effort in building a large JI constituency;21

c. In fact, international pressures - as we have seen, so widespread today - can and do

play a role in supporting JI. However, in order to avoid the so-called "Potemkin

courts" (Bass and Brinks) - makeshift courts independent only at the surface - and

having JI implemented, powerful political interests must have a stake in it. In other

words, there should be a "constituency" supporting JI.

d. Traditionally, at least in Europe but also in the US, the liberal middle classes have

composed largely the constituency of JI. Can we today see also in LA the

emergence of a similar situation? I am not enough conversant of LA politics to say

20See Huntington (1968); and Brinks (2012 and 2013).

21As the comparison between Brazil - much more pragmatist - and Argentina high courts seems to
suggest (Kapiszewski 2012)
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something significant on this regard. However, while I see the development and

spreading of constitutionalist attitudes - broadly speaking supportive of the RoL -

in several - maybe most - LA countries, I also see different interpretation of

constitutionalism: for instance, at least a "rightist"

neo-liberal - and a "leftist" -neo-constitutionalist -
interpretation, not to say anything of the "Bolivarian" or
"indigenous" versions.22 These different
interpretations will work, if some common ground is found. If opposed one to the

other, they could fragment and weaken the JI constituency.

e. Coming back to consider the judges can play in this process, judicial

professionalism must be stimulated with carefully tailored reforms of recruitment,

training and career. Judges must be rewarded for behaving in an impartial way.

However, judicial professionalism must include not only the knowledge of the law

or of that set of specific judicial skills often defined as judge craft.23 Good judges

need also political skills: the capacity of analyzing the environment in which they

act, the allies they can rely upon, (at a more general level) the role of courts in a

democracy, the limits of their power and of their capacity to bring about social and

political changes.24

f. Finally, a note of caution is needed. Building an impartial and powerful judiciary is

not easy and social science cannot always provide ready-to-be- applied recipes.

Maybe, we can learn something from the advice of a well- known XIX Century

novelist. In his masterpiece - The Charterhouse of Parma - Stendhal introduced the

subject of judicial independence in a dialogue between count Mosca - the astute

prime minister of the duke of Parma - and Fabrizio - the naive but pleasant

22 See, for instance, neo-liberal and neo-constitutional trends in Rodriguez-Garavito 2012 (also
Brinks 2012). Bolivarian refers to Venezuela. Indigenous to Bolivia. See also Couso, Huneeus ans
Sieder 2010 (esp. Huneeus, distinguishing between neo-constitutionalism, traditional formalism and
New Left).
23 I.e. case management, judicial conduct and ethics, assessment of credibility, evidence gathering and

decision writing, including an analysis of processes leading to decisions such as sentencing theories.
24 See the recent considerations of Lord Thomas, Lord Chief Justice of England and Wales (2014, 3)

: ".the relationships between the judiciary and the other branches of the state had prior to 2005 and
have thereafter continued progressively to diverge . I do not regard it as beneficial".
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protagonist of the story:

« A score of times I could have brought the whole gang before the courts,

and Your Excellency may imagine,” he went on, addressing Fabrizio,

"whether my good judges would have convicted them.”

"Ah, well, that is what spoils it all for me," replied Fabrizio with a

simplicity which was quite refreshing at court; "I should prefer to see

them sentenced by magistrates judging according to their

conscience.”

"You would oblige me greatly, since you are travelling with a view to gaining instruction,

if you would give me the addresses of such magistrates; I shall write to them before I go

to bed."

"If I were Minister, this absence of judges who were honest men would wound my self-

respect."

(Stendhal, The Charterhouse of Parma, 1839, ch. X)

I don't think contemporary "consultants" will agree with the skepticism of Stendhal. However, I

prefer to think that independent judges cannot be found „out somewhere" in society: in fact, they

are the by-product of a long chain of decisions, of a long series of efforts. In any case, a goal not

easy to be achieved but worth of being pursued with the necessary tenacity.
* Thanks to Patrizia Pederzoli and Daniela Piana for their useful suggestions.