Judges, Independence and the Power of Common Law


In the upholding of public laws and statutes, each nation has sovereignty, endorsed by the United Nations, which allows judiciary officials to preside over legal matters in the interest of maintaining peace and order.  Such judicial independence (JI) has bearings on numerous aspects that affect the functionality of a country, such as their economic structure (Feld & Voigt, 2003), conflict resolution (Posner & Yoo, 2005), and allocation of correctional measures when laws have been broken. 

Although some judicial tribunals are dependently selected to preside over certain matters and others are independently selected to serve for a specified amount of time (Posner & Yoo, 2005), both mechanisms essentially serve the same purpose, which is to arbitrate and pass binding judgments to punish criminal activity and resolve disputes, which in some cases may create precedents that translate into new legislation.  To this effect, JI is intended to provide judges the freedom to make decisions without pressure or inducements from affected parties to resolve matters in their favor or be forced to later defend the decisions they make (McGregor, 2011) and requires a solid system of checks and balances to ensure that legislative officials are not being unduly manipulated (La Porta, Lopez-de-Silanes, Pop-Eleches, & Shleifer, 2003).  This paper will present a brief examination of the concept of JI, its effect on a country’s economy and conflict resolution practices, and how JI is managed by measures of checks and balances.

Principles of Judicial Independence

Judicial independence is a normative idea designed to function internally as well as an institutional concept meant to facilitate impartiality within the legal environment (Ferejohn, 1999).  The normative perspective allows arbitrators to be autonomous in their moral assessments, which invokes reliability in their judgments, as they remain independent of any ideological aspects relevant to the circumstances (Ferejohn, 1999).  The ability to remain impartial is a requirement of judicial election, although this aspect of judicial accord has historically been an issue for conflict since this can be used by officials as a mechanism for imposing their own perspective and making it a matter of judicial policy (Ferejohn, 1999).  The common conception of judiciary officials being independent refers to their ability to take action and make judicial rulings with impunity, but judges are, in fact, institutionally dependent on Congress and the president for jurisdictional rulings and carrying out of judicial orders (Ferejohn, 1999).  In essence, the dependence of judicial accord on the outer machinations of the greater body of governance implements a system of checks and balances into the legislative form intended to disallow abuse of power; however, the positive functioning of JI is powered by the public belief in the efficacy of the system and its ability to mete out justice accordingly.

Economic Effect of JI

The strength of JI is based on the public opinions of the citizens served by the official legislative body.  In this respect, JI refers to the state’s ability to protect the rights and property of the people from others, including the government (Feld & Voigt, 2003).  In this respect, the relevancies of de iure and de facto JI must be examined to evaluate their impact on the economic structure and overall stability of the country (Feld & Voigt, 2003).  Essentially, de iure represents the letter of the law while de facto deals with how the judge has affected the law during his/her tenure and the actual collective experiences of the country (Feld & Voigt, 2003).  Where de iure has been determined to have no impact on a country’s actual financial functionality, as determined through measure of the GDP growth, de facto JI positively influences the financial aspects of a country’s growth (Feld & Voigt, 2003).  Summarily, the independence exhibited by a judge in the performance of their duties and the effects that these actions have on the legislative functioning of the country has the capacity to influence the fiduciary growth of the country, which can potentially cause national conflicts.

JI and Conflict Resolution

The growth of international commerce has placed JI in the forefront due to its influence in resolving disputes between various countries as they interact within a global market.  Regulated by global entities like the World Trade Organization (WTO) and the United Nations (UN), JI has affected commercial trade in every country in the world as many disputes are left to the jurisdiction and laws of the relevant countries and arbitrated according to their policies (Posner & Yoo, 2005).  For the most part, the WTO and the UN only intervene under dire circumstances and tend to allow countries to resolve their differences diplomatically and tribunals are convened as the disagreements arise, for the specific purpose of solving the problem and thereafter disbanded (Posner & Yoo, 2005).  While some critics indicate that this method is not trustworthy because judicial officials may be swayed to rule in favor of one party unjustly, others infer that this process is more reliable than using judicial bodies terminally appointed because judges that are given terms of appointment may have more enticement to sway in one direction or another based on their appointments (Posner & Yoo, 2005).  Since the judicial decisions are only as strong as the courts that uphold them, JI in international conflict resolution remains on tenuous ground, as parties involved tend to want to use only their own officials so that they have a greater chance of having matters decided in their favor.

Checks and Balances in JI

While the precept of JI is based on the ability of the judges and the courts they preside over to make autonomous decisions, these determinations must also uphold the laws of the land or display progression of the laws when needed.  The legislative system of checks and balances allows JI to exist and enables judges to facilitate without fear of retribution (La Porta, Lopez-de-Silanes, Pop-Eleches, & Shleifer, 2003).  The elements of JI are traditionally indicated in a country’s constitutional doctrine and the checks and balances are indicated through the concept of constitutional review, which allows judicial bodies to alter constitutional doctrines in accordance with the progression of the country (La Porta, Lopez-de-Silanes, Pop-Eleches, & Shleifer, 2003).  However, this power is not as arbitrary as the judge’s ability to pass edicts and is regulated by an elective process, like the process a case goes through before it reaches the United States’ Supreme Court.  Although judicial review is possible, it must undergo a thorough process in which other judges can analyze the decision made and must vote on its validity.


For all intents and purposes, JI is intended to afford judges the liberty to make decisions without demands or enticement parties affected by the judicial process so that they are able to resolve matters without being forced to later defend the decisions they make (McGregor, 2011).  The process of JI is both dependent and independent, de iure and de facto, and has an effect on all aspects of life within the host country.  In order to be effective, judges must have impunity in handing down their edicts and these decisions are strengthened by the constitutional and legislative support received.


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evidence using a new set of indicators. CESIFO Working Paper NO. 906. Retrieved from http://www.ifo-geschaeftsklima.info/portal/page/portal/DocBase_Content/WP/WP-CESifo_Working_Papers/wp-cesifo-2003/wp-cesifo-2003-04/cesifo_wp906.pdf

Ferejohn, J. (1999). Independent judges, dependent judiciary: Explaining judicial independence.

Southern California Law Review, 72, pp.353-384. Retrieved from http://www-bcf.usc.edu/~usclrev/pdf/072303.pdf

La Porta, R., Lopez-de-Silanes, F., Pop-Eleches, C., & Shleifer, A. (2003, June).  Judicial checks

and balances. National Bureau of Economic Research, pp.1-36. Retrieved from http://www.cib.espol.edu.ec/Digipath/D_Papers/47483.pdf

McGregor, G. (2011, September 28). Calling judges before commons committee defies judicial

immunity: legal group. Postmedia News.

Posner, E.A. & Yoo, J.C. (2005, January). Judicial independence in international tribunals.

California Law Review, 93(1), pp.1-74. Retrieved from http://ericposner.com/Judicial%20Independence%20in%20International%20Tribunals.pdf

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