Judicial independence versus judicial accountability
A direct effect of judicial independence is that judicial decisions entail consequences for the other agents that judges do not have to bear themselves (Kirchgassner, 1992). With very few exceptions, this immunity from damage liability for actions performed within their official function holds even in the case of judicial error or misbehaviour.
Building upon this fact, critics of judicial activism argue that judicial independence enables courts to act like super-legislatures, issuing arbitrary decisions while escaping any democratic constraint that elected officials are usually subject to. In other words, judicial decisions may be driven by the personal and political views of judges, or by their preferences on policy issues at stake, without judges being accountable to the representatives or their constituents in some direct or indirect way. In that view, since the powers of the judiciary ought to be controlled and balanced in order to avoid or at least to limit arbitrary discretion of judges, the democratic requirement for accountable decision makers justifies resorting to specific provisions aimed at increasing the popular control of judges. Judicial election provides such a direct form of popular control.Legislation restricting judicial review, guidelines limiting judicial discretion, or the development of alternative resolution dispute programmes, can be seen as indirect mechanisms aimed at improving judicial accountability to the political decision makers and, thereby, to the citizens. In the same manner, screening potential judges ex ante should not always be considered as an attempt to ‘pack’ courts with friendly judges, but rather as a way of improving the quality of the judicial output ex post. Thus, in a quite provocative way, political ‘incursions’ into the judicial field and the empowerment of politicians to regulate the exercise ofjurisdiction should no longer be misinterpreted as political infringements on judicial independence and manifestations of a struggle between two branches of government.
On the contrary, they become justified by the need for judicial accountability and plausibly serve judicial legitimacy (Kahn Zemans, 1999). This conception of the relationship between judicial and political actors strongly relies on the assumption of benevolent politicians or at least politicians unwilling to abuse their power. This may be inconsistent with the rational self-interested agent paradigm, unless voters display strong preferences for judicial independence and are able to control politicians in the electoral market.A second way to improve judicial accountability without promoting political intervention in the judicial field is to put a legal constraint upon judges. Beyond impeachment or resignation procedures, which remain very rare, a legal constraint helps to reduce judicial leeway in the decision-making process. It guarantees that the individual decision is consistent with the law rather than based purely on the judge’s own preferences. For instance, the control of lower courts by higher courts through appeal mechanisms together with the corresponding possibility of reversal of erroneous decisions provide a legal constraint on the lower court’s decision that can be modelled through spatial models of judicial discretion (Gely and Spiller, 1990 for an application to the US Supreme Court; Golub, 1996; Tridimas, 2001, for an application to the European Court of Justice). Reference to the precedent in common law regimes also ensures that a judge cannot break from the rule that prevails in the legal community without a convincing justification. As a consequence, precedent introduces dependence on the peer group. At a more general level, dependence on the social group may also arise from the influence of legal scholars, litigants, lawyers and other social actors. Reputational concern therefore provides a judge individually with an incentive to conform with the prevailing opinion as long as adherence is not too costly in private terms (Miceli and Cosgel, 1994).
Finally, judicial independence cannot be restricted merely to its political dimension but should also be considered in its judicial, professional and social dimensions. An extensive definition of independence taking into account the influence of the peer group and of other social groups makes it clear that the judicial situation is better depicted as a continuum from total lack of regard for external pressures or minimal influence to absolute subservience to external factors. This raises the issue of the relationship between individual independence of judges and institutional independence of the judiciary and also questions the possible influence of the prevailing conception of adjudication under various legal regimes on the practical organization of judicial independence.
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