Document Type

Article

Publication Date

2010

Abstract

There are two strands of history: Call them strand A and strand B. A: "How independent are those who judge?" B: "Where is the judicial power located?" At a high enough level of abstraction the strands merge (as, at a high enough level of abstraction, what does not?). The issue then becomes whether in a given society all judging is in the hands of independent judges. And the point is that there are two ways of avoiding the decision of cases by independent judges, corresponding, naturally, to the two strands of history:

[A] Through the judges: Punish them, reward them, above all keep them vulnerable to intimidation by threat of punishment or promise of reward; and

[B] Through the judging: Put it somewhere other than in judges who have been rendered invulnerable to intimidation by threat of punishment or promise of reward.

Until quite recently, historians have tended to treat the two strands separately. There was something called the history of judicial independence, indeed a vast literature exists on this subject, and it has to do almost exclusively with such matters as judicial tenure and compensation. And then there was something called the history of separation of powers, under which rubric we heard something, though not much, about where the judicial power is located; not much, because most of the writing on separation of powers concerned itself with relations between legislature and executive. What is more, the not much that we did hear was usually secreted in the interstices of broad and unsatisfying generalization about "branches."

This historiographic dynamic sits nicely with an assumption that in the context of judicial independence, strand B is not a problem, that adoption of the guarantees of judicial independence ensures a hearing by tribunals made up of judges whose independence has been secured. Such an assumption is baseless. In reality, a system in which all the judicial power resides in a judicial branch whose judges are independent is not sustainable, or not for very long, and only sometimes is it a direct attack on the independence of the judges that topples the system; it happens as well through relocation of some of the judging to less independent quarters. This is a matter, at times, of sheer necessity. At other times it is an attempt to circumvent the constrictions of judicial independence. In societies in which the "democraticall" element has the opportunity to make itself felt, the intrusive force is usually vox populi: Depend on it, there is always a point at which the voice of the people, or of the representatives of the people, rises above that of the independent judge.

Disciplines

Constitutional Law | Law | Legal History

Comments

This article was originally published in the Ohio Northern University Law Review.

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