The variety of institutional arrangements
Beyond a general agreement on principles, the institutional structures aimed at guaranteeing judicial independence take very different forms. For instance, a host of institutional arrangements can be observed in the field of designation and recruitment procedures.
Judges can be designated through partisan or non-partisan elections, as is the case in some US states, where judges are elected by the general public. They can also be politically appointed, like most of the judges in constitutional courts, or appointed through competitive recruitment procedures, like the French judicial bureaucracy. Furthermore, any one country can resort to the whole range of appointment procedures, depending on the type of court and level of jurisdiction. Similarly, various arrangements concerning judicial immunity from removal from office can be observed. For instance, while some systems choose to grant judges a life tenure, which is expected to enable them to make independent decisions without fear of resignation or transfer or of any other professional sanction, other countries or courts do not allow judges to be reappointed when their term of office comes to an end. This variety is backed up with a wide array of compensation and incentive mechanisms that regulate judicial salaries, promotions and career prospects.Thus the diversity of institutional arrangements aimed at protecting judicial independence appears to be matched only by the variety of the means to infringe upon it. For instance, the judicial dependence on political decision makers for the budget, which exists in most countries, may give birth to manipulations of judicial rewards by the political sponsor in order to induce courts to issue particular decisions. Discrimination at the point of entry into the profession and screening could also be expected to occur. As a consequence, judges could be expected to be more responsive to external pressures than is usually observed.
However, quite surprisingly, political decision makers themselves exercise self-restraint in their use of the structural tools. The distinction between substantive and structural independence helps to account for this at first sight paradoxical situation in which judges are able to make independent decisions in spite of their institutionally dependent situation. More precisely, substantive independence refers to the courts’ ability to issue decisions that diverge from the preferences of the political decision makers, whereas structural independence refers to the institutional arrangements that aim at enabling the existence of substantive independence (Salzberger, 1993). Consequently, degrees of substantive and structural independence may not coincide systematically and weak structural independence may not always have a detrimental effect on substantive independence. It might even allow courts to issue independent decisions, including in cases in which the government is a litigant, as long as the political branch agrees not to take advantage of the weakness of structural provisions to encroach on substantive independence. As a consequence, identical outcomes may be achieved under very different structural arrangements, whereas apparently similar constitutional provisions may lead to various outcomes in practice, contingent upon the behaviour of the other actors in the judicial field. Judicial independence may thus not be primarily a matter of constitutional protection or statutes and consequently restricted to positive law. It should rather be seen as the result of practical political and judicial experience as well as the outcome of the incentives of the other agents to respect independence.
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