TITLE

THE ORIGINS OF POSITIVE JUDICIAL INDEPENDENCE

AUTHOR(S)
Hilbink, Lisa
PUB. DATE
October 2012
SOURCE
World Politics;Oct2012, Vol. 64 Issue 4, p587
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
A number of comparative judicial scholars have argued that assertions of judicial authority are a function of the level of fragmentation/competition in the formal political sphere. Accordingly, in authoritarian or one-party settings, judges should be deferential to power holders, and in places where political power is divided between branches and/or parties, one would expect to see greater levels of judicial assertiveness. Through a longitudinal, qualitative analysis of one most-likely case (Chile) and one least-likely case (Franco-era Spain) and drawing on a half-dozen other cases from the comparative judicial literature, this article argues that political fragmentation is neither sufficient nor necessary for judges to challenge powerful actors. Instead, it argues that assertive or "positively independent" judicial behavior requires ideational support, in the form of a role conception/professional ideology that gives judges motivation for such behavior. Such professional attitudes are socially and institutionally constituted in a dynamic process that itself shapes judges' perceptions of the opportunities for and obstacles to judicial assertiveness, both within and outside the judiciary.
ACCESSION #
82284669

 

Related Articles

  • Judicial Politicization, Ideology, and Activism at the High Courts of the United States, Canada, and Australia. Weiden, David L. // Political Research Quarterly;Jun2011, Vol. 64 Issue 2, p335 

    This article proposes a new cross-national thesis for judicial decision making. The judicial politicization theory posits that judges on highly politicized high courts will be more likely to decide cases using ideological and attitudinal factors than judges at less politicized courts. The theory...

  • The Politics of International Judicial Appointments. Voeten, Erik // Chicago Journal of International Law;Winter2009, Vol. 9 Issue 2, p387 

    The article discusses the means by which governments utilize judicial selection and the judicial appointments process to shape the international judiciary. The authors state that the article draws from the principal-agent theory, where governments are the multiple principles and the judges are...

  • THE INFLUENCE OF RE-SELECTION ON INDEPENDENT DECISION MAKING IN STATE SUPREME COURTS. TIMMER, ANN A. SCOTT // Law & Contemporary Problems;2019, Vol. 82 Issue 2, p27 

    In the article, the author discusses the effect of the present re-selection systems as of April 2019 to the independent decision making of incumbent state supreme court judges in the U.S. Other topics include the criminal dissent and special concurrence rates of justices prior to their...

  • Judicial integrity: the accountability gap and the Bangalore Principles. Mayne, Greg // Global Corruption Report;2007, p40 

    The article discusses the progression of the growing awareness of the importance of a carefully constructed regime to ensure judicial accountability and appropriate standards of judicial conduct. These are the strategies that can be employed to help enhance judicial accountability such as the...

  • The enterprise of judging. Osgood, Russell K. // Harvard Journal of Law & Public Policy;Winter94, Vol. 17 Issue 1, p13 

    Reflects on the nature of judicial decision-making. Emphasis on different judicial qualities in relation to judging as an activity; Distinction between the skills and frame of mind that a judge should possess in making provisional judgments; Distinction between trial and appellate judging;...

  • JUDICIAL DIVERSITY: WHERE INDEPENDENCE AND ACCOUNTABILITY MEET. Wynn Jr., James Andrew; Mazur, Eli Paul // Albany Law Review;2004, Vol. 67 Issue 3, p775 

    Argues that in a diverse society, the ideals sought by the independence/accountability dichotomy are dependant upon and subsumed by the attainment of judicial diversity. Forced dichotomy of independence and accountability; Structural arguments for the importance of judicial independence; Key...

  • Judicial Independence and the Integrity of the Judiciary. LeRoy, Sylvia // Fraser Forum;Aug2004, p3 

    It is argued that the principle of judicial independence is an unwritten constitutional principle, necessary for the neutral application of the rule of law and the law of the constitution. But it is one thing to say that judges should be independent and quite another to say that judicial control...

  • ARE APPOINTED JUDGES STRATEGIC TOO? Shepherd, Joanna M. // Duke Law Journal;Apr2009, Vol. 58 Issue 7, p1590 

    The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the...

  • AN ALTERNATIVE PERSPECTIVE ON SUPREME COURT AGENDA SETTING IN A SYSTEM OF SHARED POWERS. Owens, Ryan J. // Justice System Journal;2011, Vol. 32 Issue 2, p183 

    This study builds on existing empirical separation-of-powers work to determine whether legislative and executive preferences constrain the Supreme Court's agenda. Its contribution comes in the form of a different modeling perspective-namely, whether judicial improvements over the status quo...

Share

Read the Article

Courtesy of THE LIBRARY OF VIRGINIA

Sorry, but this item is not currently available from your library.

Try another library?
Sign out of this library

Other Topics