Judicial Independence: New Challenges in Established Nations

Because courts are both conflict-resolving and lawmaking bodies, they should be both independent and accountable. This paradox of incidence and accountability cannot be resolved but only addressed by various and shifting pragmatic accommodations between independence and accountability. Prosecutors, trial courts, appeals courts, and constitutional courts are each subject to differing consideration in arriving at such accommodations. Moreover, courts, as courts of law, are not independent but are agents of statutory and constitutional lawmakers.

Excessive emphasis on judicial independence creates the danger that authoritarian regimes may achieve a cloak of legitimacy for their laws by having them enforced by independent judiciaries. Globalization and the Law: The Next Twenty Years, Indiana University Maurer School of Law, Bloomington, Indiana, April 5-6, 2012.