User talk:FlipLang

Judicial Independence in Continental Europe
So far wikipedia has discussed judicial independence from a strong anglo saxon viewpoint. The subject has many different viewpoints, but we agree, I think that judicial independence is a prerequisite for any state organisation to be trusted by its citizens. Eventually, the possibility must exist to put government actions to the test of judicial scrutiny.

First, there is the ongoing constitutionalist debate. For judges and the juridical communities they serve, judicial independence seems to be a preferred subject that is ritualistically repeated on 'SPECIAL' occasions: the appointment of a chief judge, or the retirement of a a lord chancellor. The content of these contributions is quite constant: judges must be independent, politicians should not interfere with judicial decision making, and money for the judiciary and the courts should never be a problem. This is a common feature of anglo saxon and continental judiciaries.

But then, differences are there: within the constitutionalist perspective:

I red an article stating judges should be independent from the state.(The Right Honourable Lord Justice Brooke, Court of Appeal, England - http://www.judcom.nsw.gov.au/fb/fbbrook.htm). I always thought separation of powers is a separation of powers within the state organisation. At least that is the continental state of affairs. Judges are appointed and paid for by offices that are a part of the state organisation, and they are also a separate category in any decent written constitution.

within the organisational perspective:

It is a lawyers' illusion to think that courts are institutions only and not organisations. Courts are bloody complicated organisations beyond the standardisation of machine bureaucracies. Nonetheless they are organisations, and like any organisation in need of buildings, equipment and staff, in order to make them function at all. From the English perspective, judges are highly autonomous individuals in an organisational setting designed to serve them. From the European perspective, judges are members of a national judiciary. They are appointed to courts with specific jurisdictions. The courts are organised as a part of a national justice organisation. In several countries (france, the netherlands, finland) they are financed according to production. Judges typically have organisational responsibilities and it is inevitable that managerial choices will affect the way judges do their work. Generally judges are fixed in their court unless they want to move themselves to another court or job. Flexibilisation of the deployment of judges seems quite attractive for managers, but this will make it much more difficult to see through internal processes, and check if a judge was exposed to malicious influences.

From a societal perspective:

Any way courts and judges are a part of the state and they are a part of the state's processes of ruling and maintaining order. This is called "keeping the peace", which also expresses that judicial tasks originally were the King's. The courts are a place where citizens meet the state. They are providers of the stability that comes with keeping the peace. Lawyers call that 'legal certainty', and that is what most people like: you make a deal with a person or company and it helps to do that if you are certain that if something goes wrong with living up to the mutual obligations, you can go to a court and have it settled.

Judicial independence therefore is not an easy subject. Judges, like everyone else, may be exposed to a lot of influences. The demand that judges are independent means that judges in their daily work may not be pressured to decide a case or a set of cases in this way or that way. Threats to judicial independence may be:

- career threats - organisational pressures to enhance efficiency - corruption - exposure of judges to public attacks and violence - political pressures

However that may be, I suggest that Judicial Independence needs both the static legal approach constitutionalist lawyers are familiar with and the dynamic approach of the actual functioning of checks and balances. Within these viewpoint differences between Anglo saxon and European approaches should be shown.

Next to that, judicial impartiality (or the absence of judicial bias) should be understood as a special demand that structures the societal functioning of courts and judges in their immediate, local, surroundings. Not living up to these demands means courts cannot fulfil their stabilizing societal function. Judicial independence is nothing else then a necessary precondition for that way of functioning of courts and judges: it is the necessary, but in itself not sufficient precondition for a court you can trust.

Anyway, I would like some response on this approach of the subject, before developing a good enough article for wikipedia readers.

Flip Lang Sept 21 2008. FlipLang (talk) 20:13, 21 September 2008 (UTC)

Further Reading:

J.C. Vile, Constitutionalism and the Separation of Powers, Oxford 1967. Gar Yein Ng, Quality of Judicial Organisation and Checks and Balances, Antwerp 2007. O.W. Kägi, Zur Entstehung, Wandlung und Problematik des Gewaltenteilungsprinzipes, Zürich 1937 Carlo Guarnieri and Patrizia Pederzoli, The Power of Judges, a comparative study of courts and democracy, Oxford 2001 M.Shapiro, Courts: A Comparative and Political Analysis, Chicago: University of Chicago Press 1981 Markus B. Zimmer, Judicial Independence in Central and East Europe: The Institutional context, Tulsa Journal of Comparative & International Law, 2006, p.53-85 THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT 2002, see: www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf