Judicial independence

Based on Wikipedia: Judicial independence

The Judge Who Cannot Be Fired

Imagine you're a judge. The most powerful politician in your country wants you to rule in their favor. They control your salary. They decide whether you keep your job. They can make your life miserable if you cross them.

What do you do?

This scenario isn't hypothetical. It plays out in courtrooms around the world every day. The question of how judges can rule fairly when powerful interests want them to rule unfairly is one of the oldest problems in governance. The solution that emerged—judicial independence—took centuries to develop and remains under threat in many places today.

Why Independence Matters

At its core, judicial independence means that courts should be free from improper influence. Judges shouldn't rule based on what the president wants, what the legislature demands, or what wealthy corporations prefer. They should rule based on the law and the facts.

This sounds obvious. But think about it from the other direction.

If judges depend on politicians for their jobs, they'll hesitate before ruling against those politicians. If their salaries can be cut as punishment for unpopular decisions, they'll think twice about making those decisions. If they can be fired for angering the wrong people, they'll avoid angering them.

The result would be a legal system where the powerful always win—not because they're right, but because they're powerful.

Judicial independence breaks this cycle. When judges have secure tenure, protected salaries, and freedom from retaliation, they can rule based on what the law actually says. A homeless person suing a billionaire can actually win if the law is on their side. A citizen challenging the government can prevail if the government broke the rules.

This isn't just about fairness in individual cases. It's about something deeper.

The Foundation of Everything Else

Consider what happens when businesses decide where to invest. They're betting millions, sometimes billions, of dollars on projects that will take years to pay off. They need to know that contracts will be enforced, that property rights will be protected, that disputes will be resolved fairly.

If a country's judges can be bribed or pressured, none of these things are certain. Why build a factory if a competitor with political connections can simply take it from you through a rigged court system? Why sign a contract if the other party can get a judge to tear it up whenever convenient?

This is why economists who study national wealth care deeply about judicial independence. Countries with strong, independent judiciaries attract more investment, grow faster, and build more prosperous economies. The connection between fair courts and economic growth is one of the most robust findings in development economics.

But the stakes go even higher than money.

Democratic elections require independent courts to validate results. When the losing candidate claims fraud, someone has to examine the evidence and make a binding determination. If that someone is controlled by the incumbent government, what happens when the incumbent is the one accused of cheating?

Rights and freedoms depend on courts willing to protect them. Freedom of speech means nothing if judges won't enforce it against officials who want to silence critics. Property rights are worthless if courts won't defend them against theft by the politically connected.

In short: judicial independence isn't just one feature of a good government. It's the foundation that makes most other features possible.

How to Create Independence

The mechanics of judicial independence seem simple but took centuries to work out.

The first and most important protection is job security. Judges who serve for life—or at least for very long terms—don't need to worry about pleasing politicians to keep their positions. They can rule against the president knowing they'll still have a job tomorrow. They can anger the legislature knowing no one can fire them in retaliation.

This idea traces back to early eighteenth-century England. Before that period, English judges served at the pleasure of the monarch. Kings and queens could dismiss judges who ruled against them, which had exactly the corrupting effect you'd expect.

The Act of Settlement of 1701 changed everything. It established that English judges would hold office "during good behavior"—meaning they could only be removed for actual misconduct, not for making unpopular decisions. This single reform transformed the English judiciary from an instrument of royal power into an independent branch of government.

Salary protection came next. If politicians can't fire judges directly, they might try to starve them out instead—cutting their pay until they resign or comply. Some countries now constitutionally prohibit reducing judges' salaries while they're in office, closing this loophole.

Selection methods matter too. Who chooses judges? If the same politicians who might appear in court get to pick the judges, they'll naturally choose sympathetic ones. Different countries handle this differently—some use independent commissions, some involve multiple branches of government, some even have judicial elections. Each approach has tradeoffs.

The Paradox of Too Much Independence

Here's where it gets complicated.

If judges have lifetime appointments, protected salaries, and immunity from retaliation, what stops them from becoming corrupt themselves? What prevents them from ruling based on personal ideology rather than law? What keeps them accountable to anyone?

Nothing does. At least, nothing structural.

A completely independent judiciary could theoretically become a dictatorship of judges—an unelected elite making binding decisions based on their own preferences, answerable to no one. Critics of judicial independence point to this possibility as a serious danger.

The relationship between judicial independence and accountability is genuinely tense. Judges traditionally don't have to explain their reasoning in detail. They're shielded from lawsuits for their official actions. They don't face voters. These protections serve independence but undermine accountability.

Some democracies try to balance these concerns by having elected judges. In many American states, judges must periodically face voters in retention elections. The idea is to give citizens some check on judicial behavior without subjecting judges to the same partisan pressures as other politicians.

Mexico and Bolivia elect their judges too. But research suggests judicial elections can increase political polarization—judges campaign like politicians and may feel pressure to make popular rather than correct decisions.

The honest answer is that there's no perfect solution. Some tension between independence and accountability is probably unavoidable. The goal is finding the right balance for a particular society at a particular time.

Independence Within the Judiciary Itself

There's another kind of independence that gets less attention: internal judicial independence. This means protecting individual judges from pressure within their own institution.

Think about a junior judge facing pressure from the chief justice. The chief assigns cases, controls promotions, decides who gets transferred to prestigious positions or unpleasant ones. Even without any external interference, this internal hierarchy can shape how judges rule.

In the Czech Republic, scholars have documented how senior judges accumulate informal power over case assignments and panel compositions. These "superjudges" may improve consistency and expertise, but they also blur the lines of internal independence. A junior judge might think twice before ruling differently than their powerful colleague would prefer.

This internal dimension of independence is harder to measure and protect. It operates through informal channels—a raised eyebrow at a meeting, a pattern of undesirable assignments, whispered comments about career prospects. Structural reforms can address it only partially.

A Global Conversation

Judicial independence didn't develop in isolation. Ideas about how to protect judges from interference have flowed between countries for centuries, creating something like a global conversation about fair courts.

England started this conversation in 1701. The concepts spread to other countries as they developed their own legal systems.

When the framers of the American Constitution designed their new government in the late 1780s, they looked closely at the English model. Article Three of the United States Constitution, which establishes the federal judiciary, directly reflects English ideas about judicial independence. Federal judges serve for life during good behavior—the same standard England adopted almost a century earlier.

The conversation then expanded as these American and English ideas influenced other common law countries. Canada, Australia, and India all incorporated similar protections when building their judicial systems.

But here's where it gets interesting: the conversation eventually flowed back.

In the twentieth century, international human rights law developed its own standards for judicial independence. The European Court of Human Rights, interpreting the European Convention on Human Rights, created detailed requirements for what fair courts must look like. The United Nations adopted basic principles on judicial independence in 1985. International associations of judges drafted standards and recommendations.

These international standards then influenced the countries that originally exported the ideas. The United Kingdom—where judicial independence began over three centuries ago—reformed its own system in 2005 partly in response to European human rights requirements.

The British Constitutional Revolution of 2005

The British Constitutional Reform Act of 2005 deserves special attention because it illustrates how dramatically judicial independence can be strengthened even in democracies with long traditions.

Before 2005, Britain had one of the strangest constitutional arrangements imaginable. The Lord Chancellor—one of the oldest offices in English government—combined legislative, executive, and judicial power in a single person.

The Lord Chancellor served as speaker of the House of Lords, making them a legislative leader. They sat in the cabinet as a senior minister, making them part of the executive branch. And they headed the judiciary, making them the top judge in the country.

This arrangement would seem like an obvious violation of separation of powers anywhere else. How can courts be independent from the executive if the head of the courts is also a cabinet minister? But Britain operated this way for centuries through custom and convention rather than written constitutional rules.

The Constitutional Reform Act changed everything. It stripped the Lord Chancellor of judicial functions entirely, transferring them to a new head of the judiciary—the Lord Chief Justice. It created a new Supreme Court of the United Kingdom, finally separating the country's highest court from the legislative House of Lords where it had formally resided. It established a Judicial Appointments Commission to reduce political influence over who becomes a judge.

Why did Britain make these changes after centuries of the old system working reasonably well? Partly because European human rights law required clearer separation between judicial and political functions. The international standards that Britain had helped inspire had evolved, and Britain needed to catch up with its own intellectual offspring.

Where Independence Doesn't Exist

Not every country has embraced judicial independence, and examining why helps illuminate what's at stake.

The People's Republic of China explicitly rejects judicial independence as a Western concept incompatible with its system. The Chinese Communist Party maintains control over courts through the Central Political and Legal Affairs Commission, which oversees the judicial system and its personnel. Courts are understood as instruments of party policy, not independent arbiters of disputes.

In 2023, the party's General Office issued a document calling for the removal of "Western erroneous views" from legal education. The list of forbidden concepts explicitly included constitutional government, separation of powers, and judicial independence. From the party's perspective, these ideas would undermine its authority and aren't appropriate for China's circumstances.

Hong Kong presents a more complicated case. As a British colony from 1842 until 1997, it developed a strong tradition of judicial independence modeled on English principles. When sovereignty transferred to China, the agreement between Britain and China—the Sino-British Joint Declaration, registered with the United Nations—specifically provided for continuation of this independent judiciary.

But the relationship between Hong Kong's independent courts and the mainland Chinese system remains a source of tension. The city operates under a different legal system than the rest of China, with its own judges, its own legal traditions, and its own commitment to independence. How long this arrangement can survive given the fundamental incompatibility with mainland approaches is an open question.

Measuring Independence

How do you actually know if a country has independent courts? This question matters for researchers studying governance, for businesses deciding where to invest, for citizens evaluating their own systems.

International organizations have developed various metrics. The Varieties of Democracy project, known as V-Dem, maintains a high court independence index that attempts to quantify judicial independence for countries around the world. Higher scores indicate greater independence from political interference.

These metrics rely on expert assessments of factors like judicial tenure, selection procedures, salary protections, and documented instances of political interference. They're necessarily imprecise—independence is partly about formal structures but also about informal norms and practices that are harder to measure.

Still, the metrics reveal clear patterns. Countries with longer democratic traditions and stronger rule of law generally score higher. Countries undergoing democratic backsliding often show declining judicial independence scores before other indicators deteriorate. The courts are frequently an early warning system.

The Australian Exception

Australia offers an interesting case study because it combines British traditions with explicit constitutional protection.

When the Australian Constitution was adopted in 1901, it entrenched the separation of judicial power. The High Court of Australia has interpreted this strictly—ruling in 2004 that any court capable of exercising federal judicial power must be, and must appear to be, independent and impartial.

Australian judges enjoy immunity from lawsuits for their official acts, secure tenure, and fixed salaries. Since 1901, no federal judge and only one state supreme court judge has been removed for misconduct. As former Chief Justice Murray Gleeson observed in 2007, Australians largely take judicial independence for granted.

But even in Australia, challenges persist. Judicial appointments remain entirely at the executive's discretion, raising concerns about political considerations influencing who becomes a judge. Handling judicial misconduct that falls short of removal-worthy offenses remains difficult. And some observers worry that increasing emphasis on measuring court "performance" could subtly pressure judges to prioritize efficiency over careful justice.

The Canadian Innovation

Canada took judicial independence in an unexpected direction in 1997, through a case called the Provincial Judges Reference.

The Canadian Constitution explicitly protects superior court judges—those on the higher courts—with guaranteed tenure until age seventy-five and salaries set by Parliament rather than the executive. But what about lower court judges, the ones who handle most cases that ordinary citizens encounter?

Before 1997, these inferior court judges had some protection when handling criminal cases under the Canadian Charter of Rights and Freedoms, but not when handling civil disputes. The constitutional text simply didn't extend to them.

Then the Supreme Court of Canada found something remarkable: an unwritten constitutional norm guaranteeing judicial independence to all judges, even those not explicitly covered by the text. The Court reasoned that the preamble to the Constitution Act of 1867—which referenced a constitution "similar in Principle" to Britain's—implicitly incorporated British traditions of judicial independence.

This was bold constitutional interpretation. The Court essentially read protections into the Constitution that weren't written there, based on historical tradition and constitutional structure. Critics called it judicial overreach. Supporters called it recognizing what the Constitution had always assumed.

One practical consequence was the creation of judicial compensation commissions. If all judges must be independent, and financial security is part of independence, then judicial salaries can't be set through ordinary political processes. Independent commissions now recommend pay for Canadian judges, insulating the question from political manipulation.

Two Kinds of Independence

Legal scholars distinguish between institutional independence and decisional independence, and the difference matters.

Institutional independence is about structure: Is the judiciary formally separate from the executive and legislative branches? Does it have its own budget? Its own hiring authority? Its own physical facilities? These are the visible, organizational elements of independence.

Decisional independence is about individual judges: Can a specific judge decide a specific case based solely on law and facts? Are they free from media pressure, political interference, or fear of career consequences? This is the invisible, psychological element of independence.

You can have one without the other. A judiciary might be institutionally independent—with its own budget and separate facilities—while individual judges face enormous informal pressure to rule certain ways. Conversely, individual judges might feel personally free to decide as they think right while the institution as a whole depends on political goodwill for resources.

True judicial independence requires both. The structures must be right, and the culture must support judges who use those structures to rule fairly.

The Ongoing Struggle

Judicial independence is never fully achieved. It's a continuous negotiation between courts seeking to maintain their integrity and political actors seeking to influence outcomes.

In some countries, the threat comes from authoritarian governments explicitly seeking to subordinate courts to political control. In others, the threat comes from subtler erosions—budget pressures, appointment delays, public attacks on judicial legitimacy.

Understanding judicial independence means understanding that it's always contested. The formal protections—life tenure, salary security, independent appointments—create space for fair adjudication. But maintaining that space requires constant vigilance.

Three centuries after England's Act of Settlement first established that judges shouldn't serve at the pleasure of the monarch, democracies around the world are still working out what judicial independence truly requires. The conversation continues.