Is an Independent Judiciary Necessary for Democracy?
Howard, Robert M., Carey, Henry F., Judicature
A multi-nation study found a significant relationship between judicial independence and political rights.
Though often taken as axiomatic, there has been surprisingly little systematic analysis of the hypoth esis that a functioning independent judiciary is a necessary condition for democracy. Is judicial independence required for the protection of political rights? This article seeks to answer this question by building on recent examinations of constitutional provisions ensuring judicial independence -offering a measurement of de facto judicial independence and examining the relationship of this measurement to political rights.
Undoubtedly, other institutions might be more important to the protection of political rights than are the courts, including political parties, self-restraining executives and military, an active civil society with vigorous non-governmental organizations and media, a functioning economy, and a culture that values the rule of law and freedom itself. Even given these institutions, however, a lawful regime appears to need an independent judiciary to assure minorities, majorities, individuals, and even criminal defendants that rulers will not oppress them.
We address this question of the importance of judicial independence by offering a measure of judicial independence separate from explicit constitutional guarantees, and we then evaluate our measure using both cross-tabular and multivariate analyses to determine the relationship between judicial independence and a commonly accepted measure of political rights. Through these analyses, we present evidence of a significant relationship between judicial independence and political rights.
The judicial factor
While often acknowledging the importance of independent courts, scholars tend to emphasize such other factors as modernization, socialization, economic development, civil society, and social capital as important determinants of political and civil rights.1 A basic premise of these studies is that factors other than judicial independence are more important to fundamental political rights.
Of course, not all scholars have ignored systematic analyses of judicial independence. Several recent works have examined various aspects of the importance of judicial independence and their influence on human rights. Frank Cross has examined a non-random small study of nations using a subjective measure of judicial independence, while Linda Camp Keith, in two related articles, has examined the influence of constitutional provisions in general and judicial power provisions in particular on human rights.2 Keith's articles, however, focus on de jure, or explicit, constitutional provisions, as opposed to de facto, or actual, conditions. We seek to build on both of these works by significantly expanding the number of nations analyzed to include nations from all different political and economic systems, offering a replicable measure of independence, and examining actual conditions of judicial independence, rather than focusing only on constitutional provisions.
Why might judicial independence lead to greater rights and liberties? Despite the different approaches taken by scholars of developed and developing democracies, most would agree that an institutionalized and independent judiciary is a necessary condition for democratic legitimacy.3 The advent of political rights associated with the Enlightenment was built on a foundation of individual rights secured by courts; as Montesquieu notes, the separation of powers between judicial and executive branches is far more important than any separation between legislative and executive branches-the only check on an executive branch is a resolute judiciary through which any ordinary citizen can protect his or her civil rights.1
Alexander Hamilton echoes these ideas, suggesting that the legislature is also a threat to liberty. For Hamilton, the very purpose of judicial independence is to counter-balance majoritarian will: "The complete independence of the courts of justice is peculiarly necessary," he argues, because "the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. …