Judicial Independence and the Rule of Law

Abstract

The rule of law provides two basic protections against arbitrary ordiscriminatory government action. It provides that the rule applied toa particular case must be reasonably predictable. And it provides thatthe rule must be predictable without regard for the identity of theparties. We know the importance that the rule of law has for oursociety, our democracy, and the kind of civilization we want, but werarely take the time to think about what the components of the rule oflaw are and how we assure that the rule of law continues. Why hasthis country been successful—much more successful than mostsocieties—in preserving the rule of law? How can we continue to besuccessful? How can we lead societies emerging into the democraticarena to adopt the rule of law and then protect and preserve it?America, of course, did not invent the rule of law. The rule of lawas a principle, philosophical and otherwise, has been in existence forcenturies. Philosophers and legal scholars have talked about it,written about it, and attempted to implement it. But the Americandemocratic experiment made two important contributions to the ruleof law: one was the principle of judicial supremacy and the other wasthe principle of judicial independence.The rule of law provides two basic protections against arbitrary ordiscriminatory government action. It provides that the rule applied toa particular case must be reasonably predictable. And it provides thatthe rule must be predictable without regard for the identity of theparties. We know the importance that the rule of law has for oursociety, our democracy, and the kind of civilization we want, but werarely take the time to think about what the components of the rule oflaw are and how we assure that the rule of law continues. Why hasthis country been successful—much more successful than mostsocieties—in preserving the rule of law? How can we continue to besuccessful? How can we lead societies emerging into the democraticarena to adopt the rule of law and then protect and preserve it? America, of course, did not invent the rule of law. The rule of lawas a principle, philosophical and otherwise, has been in existence forcenturies. Philosophers and legal scholars have talked about it,written about it, and attempted to implement it. But the Americandemocratic experiment made two important contributions to the ruleof law: one was the principle of judicial supremacy and the other wasthe principle of judicial independence.