We are today so used to the rhetoric of judicial independence that we rarely think about the origins of the concept of judicial independence and whether and how we benefit from it. Although the idea of separation of powers has been discussed already from Aristotle and Polybius to Marsilius of Padua, John Fortescue, and Gasparo Contarini 1 , judicial independence is a comparatively modern invention.
There were for centuries and centuries only bodies having judicial functions without almost any independence. For example, in the times of the Norman monarchy, the king with his Curia Regis was in charge of judicial power in the Kingdom of England. Subsequently, however, more courts were formed and a judicial vocation developed. In the fifteenth century, the king's role in exercise of judicial power diminished substantially. Even so, kings could still influence courts and dismiss judges. The House of Stuart exercised this power recurrently in order to override Parliament2.
The formerly unlimited royal privilege of instituting courts was curtailed when Parliament eliminated the courts of the Star Chamber and High Commission in 1641 and when by adopting the English Bill of Rights 3 it declared illegal the establishment of ecclesiastical courts by James II4. After the Stuarts were eradicated with the Revolution of 1688, the attitude toward the power of the king to overrule Parliament by dismissing disobedient judges and nominating new judges became more and more one of detestation. King William III at the end of the day approved the Act of Settlement 1701 5 , which instituted tenure for judges except where Parliament relieves them of their duties6. In the main, this resulted in a significant degree of independence from executive control for British judges in the eighteenth century and thereafter7.
Since the time of Aristotle, the main rationale for advocating for judicial independence has been the objective to protect the people from tyranny8. It has been asserted that judicial independence is most important in those cases where courts are called upon to resolve disputes between individuals and the state or between different branches of government. Judicial independence, at its base, means that judges are free to rule against the government, should the law so dictate, without fear of reprisal9.
Later, judicial independence has been considered in a much broader context, including that of undue influences from all possible agents in society.
Although there is tension between independence and accountability, independence will be weak if corrupt behaviour is prevalent10. The threat to judicial independence is not always governmental. The judiciary needs to be concerned about independence not only from the other branches of government but also from illegitimate sources of power. Judicial independence from other branches of government is crucial, but it is meaningless if judges are instead subjected to other improper influences. Consequently, governments seeking to establish an independent, autonomous judiciary having the respect and trust of the people must take steps to secure the independence of the judiciary from the influence of powerful non-government groups that have an incentive to influence the outcome of adjudications11. In this sense, judicial independence has utilitarian reasons. Judges conceivably influenced by agents of undue pressure would render judgements not based exclusively on the law and facts of the case but may take into account the interests of the above-mentioned agents. Therefore, judgements rendered under undue influence would lead the society away from the models of behaviour upon which that society has decided through legislation 12 to be those best serving the interests of the society.
Judicial independence signifies much more than a judge's freedom from political influence. Independence has a number of definitions and dimensions, including structural, organisational, and administrative aspects of a judicial system, which all play a role in judicial independence.
The International Association of Judges has declared that "[j]udicial independence is independence from any external influence on a judge's decisions in judicial matters, ensuring [for] the citizens impartial trial according to law. This means that the judge must be protected against the possibility of pressure and other influence by the executive and legislative powers of [the] state as well as by the media, business enterprises, passing popular opinion etc. But it also implies guarantees against influence from within the judiciary itself" 13 .
There are several, different types of independence:
1) substantive independence, which is functional (sachliche Unabhängigkeit) or decisional independence, in German and American law, respectively (making judicial decisions and exercising official duties subject to no other authority but the law);
2) personal independence (adequately secured judicial terms of office and tenure);
3) collective (institutional) independence (judicial participation in the central administration of courts); and
4) internal independence (independence from judicial superiors and colleagues)14.
In the discussion on the influence of the hunt for efficient court management, all of these types of independence should be kept in mind.
Raul Narits and Uno Lõhmus have asserted in the commentaries to the Estonian Constitution that the constitutional provision for judicial independence should protect courts primarily from the executive power 15 and that European countries have been at an increasing rate acknowledging judicial self-administration, denoting that judges should have substantial contribution in administration of courts16.
The one caveat, sometimes offered, is that judicial independence should not come at undue cost in terms of judicial accountability. If, for example, a judge is afforded life tenure in an effort to insulate her from outside influences and then she demonstrates an invidious bias in her performance, the independence inherent in the life tenure makes it difficult, if not impossible, to hold her accountable for her unacceptable bias. Conversely, judicial accountability can undermine independence. For example, if a robust system of judicial discipline and removal is put in place to hold judges accountable for their biases, the judges' independence is inevitably infringed, as the disciplinary regime can always be used to intimidate judges from rendering unpopular decisions. This illustrates the problem as one of balancing two competing interests17.
Judicial independence is often treated as if it were an unalloyed good, to be furthered insofar as practically possible. In the traditional telling, an independent judiciary is regarded as if it were the font of justice, the rule of law and individual rights, if not the font of all good things. Such worship of judicial independence is not sustainable, theoretically or empirically. Indeed, the concept of judicial independence potentially flies in the face of our fundamental constitutional concept of checks and balances. While there is no doubt that a measure of judicial independence is a good thing, such independence must be kept in balance with judicial accountability. Increased judicial independence is not always better18.
Although the concept of judicial independence is at least in part based on the Aristotelian desire to keep away from the threat of tyranny, unlimited judicial independence, if not counterpoised by accountability as well as checks and balances between powers, could lead to tyranny itself: judicial tyranny.
The courts cannot function without administration. As Peter Ferdinand Drucker has already phrased it, "[w]ithout institution there is no management. But without management there is no institution"19.
Courts are highly complex institutions, which are difficult to manage on a number of levels and for a number of reasons20. For decades, if not longer, legislators and many in the executive branch saw the judicial branch as unmanaged and the source of many fiscal and budgeting nightmares. They also often viewed judges and their managers as incapable of effective management21.
The scant administrative capabilities demonstrated by courts for decades flowed in part from the prevailing view that courts were simple organisations that would work well as long as judges addressed their caseloads diligently. The modern concepts of case and caseload management-the idea that courts are responsible for the timely progress of cases and for the active management of judicial resources-had not yet been embraced. Rudimentary court and caseload management was supplied by clerks of the court in the form of handling court files and scheduling cases. Over time, however, growing communities yielded larger workloads, and growth became foremost among the several factors driving the necessity for rational court management. Additional compounding factors were increasing social and legal complexities of issues that come before the courts. Even as court systems simplified their jurisdictional structures through unification reforms, the communities they served became more complex and interdependent. As complexity and interdependence grew in social relationships and economic transactions, the laws that govern those relationships mirrored their complexities and interdependencies22.
However, the controls necessary for judicial administration make judicial independence vulnerable to risk. There are five models of judicial administration. These are:
1) the exclusive executive model;
2) the joint...