The article refers to judicial independence, identifies its meaning and theoretical explanations, and examines judicial systems in a classificatory way. Judicial independence is understood as “court autonomy from other actors” when a court is free in its decision-making and not influenced by political and other institutions (Ferejohn, Rosenbluth & Shipan, 2004, p. 3). The rationale of independence lies in the idea that society’s well-being is more stable when the community is governed by constitutional principles rather than political actors. If the level of intervention in decision rules, courts’ personnel, jurisdiction, case selection, and law enforcement is significant, the independence of the judiciary decreases. Judicial independence is characterized by statutory judicial review (courts may determine the regulatory agencies’ activity inconsistent with laws) and constitutional judicial review (constitutional courts may rule independently according to constitutionality) (Ferejohn, Rosenbluth & Shipan, 2004). The power of reviews is controversially accepted by democracies that tend to limit judicial independence.
There are various reasons why judiciaries may be politically independent. If the political system is highly fragmented, courts have more freedom, while a coherent political majority headed by a president may shape the processes of courts’ decision-making (Ferejohn, Rosenbluth & Shipan, 2004). The authors provide examples of various countries where the reinforcement of political actors led to the restriction of the judiciaries’ independence. Nevertheless, scholars rely on the empirical measuring of judicial independence through the examination of the frequency of governmental actions’ overturning by the court and judiciaries’ reaction to nationalization. If constitutional courts frequently define the government’s laws as unconstitutional or reduce the government’s attempts to nationalize particular economic segments, it reflects high judicial independence. During any election, the court’s uncertainty about new political actors’ preferences inevitably increases and results in judicial actions that challenge the government.
Reference
Ferejohn, J., Rosenbluth, F., & Shipan, C. (2004). Comparative judicial politics. SSRN Electronic Journal, 1-28. Web.