Published online by Cambridge University Press: 26 April 2019
JUDICIAL INDEPENDENCE: A PROTEAN CONCEPT
Judicial independence, like rule of law or accountability, is a slogan of our times. The Constitutional Reform Act, 2005, fundamentally altered the judicial apparatus in the United Kingdom with the intention of providing a firm statutory basis for judicial independence; the Indian Supreme Court regularly cites the need for judicial independence in response to questions regarding accountability for its internal working; it is even provided express constitutional recognition in section 165 of the Constitution of South Africa. In addition, it has been considered by the International Bar Association, numerous inter-governmental fora and, on several occasions, by the United Nations.
Concern for judicial independence is near-universal, extending to developed and developing countries, old legal systems and new. However, the interest in judicial independence, despite appearances, is not a modern phenomenon. Historically, in the common law world, judicial independence has been seen as a necessary prerequisite both for maintaining the rule of law and for ensuring adherence to a scheme of separated powers. During the reign of the Stuart kings in seventeenth century England, early signs of judicial independence could be seen with the growth of an independent legal profession removed from politics and the consequent functional specialisation that became the hallmark of the courts. Subsequently, the Act of Settlement of 1701 represented the first institutional incorporation of judicial independence in the late middle ages, abolishing the pleasure doctrine which had made judges subservient to the Crown, and replacing it with the doctrine of good behaviour which ensured security of tenure. Blackstone developed this conception of judicial independence further, as the foundation on which separation of powers and consequently public liberty rested. The culmination of these developments was the Federalist Papers, key documents in the drafting of the Constitution of the United States, which established the judiciary as a co-equal and independent branch of government whose independence was constitutionally secured.
Unsurprisingly, elucidations of judicial independence by different authors in different countries have led to distinct understandings of the term. Furthermore, owing to its conflation with ideas of checks and balances, separation of powers and rule of law, all of which have been used as justifications for judicial independence, its conceptual core is nebulous.