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1 - Introduction

Published online by Cambridge University Press:  05 June 2014

Shimon Shetreet
Affiliation:
Hebrew University of Jerusalem
Sophie Turenne
Affiliation:
University of Cambridge
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Summary

1.1 Judicial independence is an essential pillar of liberty and the rule of law; ‘without a judiciary which can and will administer law fairly and fearlessly between the parties, no other guarantee given to the litigants by the law is likely to be of value’. The many requirements of judicial independence can be found in international and domestic foundational texts. Yet its modern meaning and practice is as unique as the character of each judiciary is, fashioned by checks and balances generated through history by various stakeholders in the judiciary. The protagonists in the story of judicial independence most noticeably comprise the executive and the legislature. In England and Wales, they also include a number of autonomous bodies with statutory powers, such as the Judicial Appointments Commission. Judicial independence depends thus to a significant extent on the constitutional relations external to the judiciary, such as the relationship between Parliament and the government. It is also a significant component of government culture to the extent that it must be supported by the political climate and social consensus. The political leadership and the legal elite must work together to develop a culture of judicial independence underlined by some significant guidelines. This process is of necessity gradual and ongoing.

The checks and balances regarding the judiciary create, however, a continuous tension between judicial independence and the public accountability of judges in a democracy. This tension, in turn, reflects a line of demarcation for the judicial power of the state, according to the principles of parliamentary sovereignty and separation of powers. This means that the model of judicial accountability adopted in a given society determines, to a large extent, the independence of the judiciary.

Type
Chapter
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Judges on Trial
The Independence and Accountability of the English Judiciary
, pp. 1 - 20
Publisher: Cambridge University Press
Print publication year: 2013

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References

Jolowicz, J.A., ‘Angleterre’, in M. Cappelletti and D. Tallon (eds.), Fundamental Guarantees of the Parties in Civil Litigation (Milan: Giuffrè, 1973), p. 121;
Bogdanor, V., The New British Constitution (Oxford: Hart, 2009), pp. 282–4Google Scholar
Hailsham, , ‘The Independence of the Judicial Process’ (1978) 13 Israel LRev 1, 8–9
Beatson, J., ‘Judicial Independence and Accountability: Pressures and Opportunities’ (2008) Judicial Review 1, Canivet, G., Andenas, M. and Fairgrieve, D. (eds), Judicial Independence and Accountability (London: BIICL, 2006)Google Scholar
Burbanks, S.B. and Friedman, B. (eds), Judicial Independence at the Crossroads: An Interdisciplinary Approach (Thousand Oaks, California: Sage Publications, 2002)Google Scholar
Blackstone, W., Commentaries on the Laws of England (1765), vol. I, ch. 7, p. 258
Masterman, R., The Separation of Powers in the Contemporary Constitution (Cambridge University Press, 2010CrossRefGoogle Scholar
Cappelletti, M., ‘Who Watches the Watchmen? A Comparative Study on Judicial Responsibility’ (1983) 31 AJCL 1
Shetreet, S. and Deschenes, J. (eds.), Judicial Independence: The Contemporary Debate (Boston: M. Nijhoff, 1985), pp. 570–5Google Scholar
Bell, J., Judiciaries within Europe, A Comparative Review (Cambridge University Press, 2006), p. 4Google Scholar
Thomas, LJ, ‘The Position of the Judiciaries of the United Kingdom in the Constitutional Changes’, Address to the Scottish Sheriffs’ Association (Peebles, 8 March 2008
Phillips, , ‘Judicial Independence’ – Commonwealth Law Conference (Nairobi, Kenya, 12 September 2007)
Guarnieri, C. and Pederzoli, P., The Power of Judges: A Comparative Study of Courts and Democracy (Oxford University Press, 2002CrossRefGoogle Scholar
Derbyshire, P., Sitting in Judgment. The Working Lives of Judges (Oxford: Hart, 2011Google Scholar
Macdonald, R.A. and Kong, H., ‘Judicial Independence as a Constitutional Virtue’, in Sajo, A. and Rosenfeld, M. (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012), p. 831Google Scholar
Russell, P.H., ‘Towards a General Theory of Judicial Independence’, in Russell, P.H. and O’Brien, D.M. (eds), Judicial Independence in the Age of Democracy (Charlottesville/London: University of Georgia, 2001), p. 1;Google Scholar
Larkins, C.M., ‘Judicial Independence and Democratization: A Theoretical and Conceptual Analysis’ (1996) 44 American Journal of Comparative Law605.CrossRefGoogle Scholar
Etherton, T., ‘Liberty, the Archetype and Diversity: A Philosophy of Judging’ [2010] PL 727
Reid, , ‘The Judge as Law Maker’ (1972) 12 J Pub Teach Law 22.
Beatson, J., ‘Reforming an Unwritten Constitution’ (2010) 126 LQR 48
Stevens, R., The English Judges: Their Role in the Changing Constitution, rev. edn (Oxford: Hart, 2005)Google Scholar
Irvine, , Human Rights, Constitutional Law and the Development of the English System (Oxford: Hart, 2003), p. 205.Google Scholar
Woolf, , ‘The Rule of Law and a Change in the Constitution’ (2004) CLJ 317
Bingham, T., The Business of Judging (Oxford University Press, 2000), p. 67.Google Scholar
Rawlings, R., ‘Concordats of the Constitution’ (2000) 116 LQR 257
Mackay, J., ‘The Role of the Lord Chancellor in the Administration of Justice’, Earl Grey Lecture, University of Newcastle, 24 February 1990.
Zuckerman, A., ‘Civil Litigation: a Public Service for the Enforcement of Civil Rights’ (2007) 26 CJQ 1.
Shetreet, S., ‘The Administration of Justice: Practical Problems, Value Conflicts and Changing Concepts’ (1979) 13 UBC Law Rev 52, 57–62.
Bogdanor, V., ‘Parliament and the Judiciary: The Problem of Accountability’, Third Sunningdale Accountability Lecture, 2006
Sedley, S., ‘When Should a Judge Not Be a Judge?’ (2011) 33 LRB 1, 9.
Friedland, M., A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995), p. 157.Google Scholar
Bingham, T., ‘The Human Rights Act’ (2010) 6 EHRLR 568, 569.
Bradley, A., ‘Relations between Executive, Judiciary and Parliament: an Evolving Saga?’ [2008] 4 PL 470, 488.
Langbroek, P., International Journal for Court Administration, editorial, April 2011.
Griffith, J.A.G., The Politics of the Judiciary, 5th edn (London: Fontana, 2010), pp. 18–22.Google Scholar
Limbach, J. et al., Interrights Report on ‘Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights’, May 2003
Turenne, S., ‘Decisions, Decisions: the Best Case Scenario’, The Guardian, 11 October 2011
Shetreet, S., ‘Models of Constitutional Adjudication’, in Essays in Honour of Konstantinos D. Kerameus (Athens/Brussels: Ant. N. Sakkoulas/Bruylant, 2009), p. 1259Google Scholar
Rosenfeld, M., ‘Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts’, in Nolte, G. (ed.), European and United States Constitutionalism (Cambridge University Press, 2005), p. 197Google Scholar
Shapiro, M. and Stone Sweet, A., On Law, Politics, and Judicialization (Oxford University Press, 2002)CrossRefGoogle Scholar
Rousseau, D. (ed.), La Question prioritaire de constitutionalité (Paris: Lextenso, 2010).Google Scholar
Bell, J., ‘United Kingdom: Constitutional Courts as Positive Legislators’, in Brewer Carias, A.R. (ed.), Constitutional Courts as Positive Legislators. A Comparative Law Study (Cambridge University Press, 2011), p. 809.Google Scholar
Resnik, J., ‘Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure’ (2005) 26 Cardozo L Rev 579, 593–4.
Jowell, J., ‘Restraining the State: Politics, Principle and Judicial Review’ (1997) 50 CLP 189.
Irvine, , ‘Parliamentary Sovereignty and Judicial Independence: Keynote Address’, in Hatchard, J. and Slinn, P. (eds.), Parliamentary Supremacy and Judicial Independence: A Commonwealth Approach (London: Cavendish Publishing, 1999) p. 167.Google Scholar

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  • Introduction
  • Shimon Shetreet, Hebrew University of Jerusalem, Sophie Turenne, University of Cambridge
  • Book: Judges on Trial
  • Online publication: 05 June 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781139005111.002
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  • Introduction
  • Shimon Shetreet, Hebrew University of Jerusalem, Sophie Turenne, University of Cambridge
  • Book: Judges on Trial
  • Online publication: 05 June 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781139005111.002
Available formats
×

Send book to Google Drive

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive.

  • Introduction
  • Shimon Shetreet, Hebrew University of Jerusalem, Sophie Turenne, University of Cambridge
  • Book: Judges on Trial
  • Online publication: 05 June 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781139005111.002
Available formats
×