The Dual Rationale of Judicial Independence

Abstract

Reseña:This paper considers the rationale of judicial independence in constitutional discourse. A look at the expression of this principle in normative instruments of various periods and sources shows how the universal requirement of independent adjudicators, which aims at ensuring justice in particular cases, and the widely shared desideratum of a powerful judiciary with “a will of its own”, aimed at checking the exercise of power by the political branches, provide two distinct and largely independent grounds for protecting judicial independence. These grounds overlap in many respects but must be distinguished in order satisfactorily to work out the detailed requirements of independence in particular scenarios. This has become pressing in the current context where adjudication is more and more often entrusted to tribunals whose members are not part of an institutionalized judiciary and where the state itself is more generally losing ground in the governance of human affairs.