Prolegomena to a Theory of Judicial Power : The concept of judicial independence in Theory and History

This paper discusses the exercise of judicial power, analyzing it from a theoretical and historical point of view. It focuses on the independence and impartiality of this power in making decisions, which is different from the other roles played by the State that also involve decision-making activities. It is necessary to understand judicial power as independent in the sense that independence entails impartiality, so that the judge is not subordinated to external powers in a case and the decision does not contain personal elements of the judge.

Exercising judicial power, as distinct from other State functions, has been justifi ed in different ways.All of them are somehow connected with the impartiality/ independence or competence/expertise of the judicial decision-makers.This article is a fi rst attempt to classify these discourses.Two Erkenntnisinteressen motivate the research: on the one hand, the attempt to rewrite the doctrine of the constitutional State distinguishing types of organs and their forms of legitimacy; on the other, the will to understand better what is now called the global expansion of judicial power. 2 The focus here is not going to be on an analytical or normative doctrine of the "independence of judicial power" inside the modern political and constitutional theory, 3 but more on what can be called the (self-) justifi cation of the judicial function as distinct from other governmental decision-making activities -some would say its "legitimacy". 4dependence, what?
To begin with, it may be useful to bear in mind something we may tend nowadays to forget.For a long time, and in societies as different as the Athenian democracy (Hansen, 1991, notably ch. 8 about the dikasterion), the Ch'ing Chinese Empire (1644-1911)  (Sprenkel,  1962a, 1962b; Bodde and Morris, 1967a, 1967b; Chü,  1962), or the African cultures based on customary law (Epstein, 1954; Gluckman, 1969), the function of adjudication was not attributed to a distinct and "professional" judicial body.It was exercised directly by the political authority, as in Athens, or indirectly by State offi cials, such as mandarins in China.It was towards the end of the Roman Empire (certainly not during the Roman Republic) (Girard, 1901; Jolowicz, 1954) that the judicial function 5 started to be exercised by specialized (not independent) offi cials.And it was only in England between the 16 th and 17 th centuries, to my knowledge, that members of courts of common law put forward the idea of independence vis-à-vis the King's prerogatives.This is a point which will be addressed later.
Here shall be suggested a typology of recurrent discourses that have been used to justify the independence/ distinctiveness of the judicial power -vis-à-vis the other functions of the State (legislative and executive) or, more simply, vis-à-vis the actor or the agency entitled to exercise political authority (sovereignty, as political and legal theorists started to say after Bodin and Hobbes); but also, and more basically, independence as impartiality, which justifi es the exercise of judicial power, without taking into consideration the agency exercising it.
It may be worth saying a few words about the concept of "independence", traditionally used in two different ways in connection with judicial function/ power.By speaking of independence, in this context, we may design a similar structure of relation betwe-2 Tate and Vallinder (1995).John Ferejohn rightly suggested that it is important to distinguish between the expansion of power of judges, meaning that they exercise greater and greater percentages of executive or legislative power, and the expansion of the jurisdiction of courts as such.Torbjörn Vallinder, in his contribution to the quoted book, speaks of "expansion of the province (italics mine) of the courts and judges at the expense of politicians and/or administrators", a phenomenon described as "judicialization of politics".In the last few years I explored a special dimension of this expansion: the spreading of constitutional adjudication in the contemporary world, mostly in the framework of the post-authoritarian states: Ferejohn and Pasquino (2002, p. 21-36, 2003; s.d.). 3 The last book on the topic is, to my knowledge, Russell and O'Brien (2001). 4See on the same topic: Pasquino (1998, p. 38-50; 2001); also, Grimm (1999, p. 193-215).It is appropriate here to quote a text by Max Weber that is profound and fascinating.In Wirtschaft und Gesellschaft, in which Weber introduced his classifi cation of the forms of legitimacy of the Herrschaft, he wrote: "We have encountered the problem of legitimacy already in our discussion of the legal order.Now we shall have to indicate its broader signifi cance.For a domination [Herrschaft], this kind of justifi cation of its legitimacy is much more than a matter of theoretical or philosophical speculation; it rather constitutes the basis of very real differences in the empirical structure of domination.The reason for this fact lies in the general observable need of any power, or even advantage of life, to justify itself.The fates of human beings are not equal.Men differ in their states of health or social structure or what not.Simple observation shows that in every such situation he who is more favored feels the never ceasing need to look upon his position as in some way 'legitimate', upon his advantage as 'deserved', and the other's disadvantage as being brought about by the latter's 'fault'.[...] This same need makes itself felt in the relation between positively and negatively privileged groups of human beings.[…] Indeed, the continued exercise of every domination (in our technical sense of the word) always has the strongest need of self-justifi cation through appealing to the principle of its legitimacy.Of such ultimate principles, there are only three […]" (Weber, 1954, p. 335-336).An interesting aspect, among others, of this text is that Weber turns the standard perspective, claiming that in modern society those who have to obey want reasons for their obedience, upside down.In the quoted text, the stress is different: those who speak of Legitimitaet der Herrschaft, address fi rst of all [or also?] themselves!A small change of perspective in the Weberian approach may suggest the following consideration: those who speak of legitimacy or produce such discourses do not address simply themselves or the Herr in order to produce self-justifi cation.They address also other actors: those who have to obey as well as those who try to impose a monopoly of the Herrschaft; in any event, if we consider a modern rational (in the Weberian sense) society.One could imagine the "public sphere" of the exercise of authority as a closed space which it is not possible to access without producing arguments that justify the legitimacy of exercising part of that public authority.Weber did not discuss this issue probably because he was trying to characterize the "pure" (idealtypisch) forms of Herrschaftslegitimitaet.But it is apparent that the exercise of public authority is a polyarchic reality most of the time divided by confl icts concerning the distribution of authority itself among different actors.It is inside this battlefi eld that discourses concerning the legitimacy and independence of the judiciary may be analyzed, as will be attempted in this text, or more exactly in this research project. 5It should be recalled that Aristotle was probably the fi rst to single out a judicial function, long before the modern theory of the separation of powers, and by the way in a different perspective of developing conceptual tools, in order to provide a comparative analysis of different forms of government (politeiai).In his Politics (IV.11 = 1297b37ff.)he distinguished three elements (mória, more exactly "constituent parts") of any politeia: to bouleuómenon, to perì tas archás, to dikázon (or dikastikón).The latter is normally translated as "judiciary" (Rackham) or "judicial element" (Barker) (δικαζειν, according to Liddell-Scott, means to give a judgement, to decide between persons and judge their cause).At 1300b13ff, he qualifi es the dikastikón as the system of law courts (dikasteria).
en types of actors we have to distinguish. 6On one hand, we may want to stress that in the confl ict resolution between two parties, we/they want to rely on a neutral, unbiased third party to settle the confl ict.A case in point, among many others, which clarifi es this idea, is the Roman iudex (Broggini, 1957).The word designated a sort of juror or arbiter chosen, with the consent of the two parties of the trial, from a list (album iudicum) that the magistrate who prepares the case (the praetor) presented to the parties.The iudex, who is neither a magistrate nor a specialist of the law, will render the judgment (sententia) that ends the trial.The independence (neutrality) of the third party in charge of the adjudication is a possible (and perhaps necessary) condition for moving from the dyadic to the triadic structure of confl ict resolution. 7n the other hand, we have spoken for some centuries of an independent judge/judiciary in a slightly different sense.What we have in mind most of the time nowadays is not simply or essentially the neutrality vis-à-vis the two parties of a trial, but the nondependence on the other branches of political authority in a constitutional system based on the separation of powers.8This seems important for two reasons.The fi rst was argued by Montesquieu in his criticism of the despotic government.To avoid the dangers threatening individual liberty that stem from the connection between legislative and judiciary, he wanted, as we know, to separate the "puissance de juger" from the other State functions. 9The second reason is connected to the American tradition of judicial review of statutes and with the French development of "administrative" law in the 19th century (Cassese, 2000).In the latter case, judiciary independence seems to be welcome when the confl icts are between branches of the national government or quasi-sovereign entities (states, Länder,  etc. -what Germans call Organstreit and the Italians confl itti di competenza), as well as in cases of confl icts between citizens and the government.It is exactly in this connection that Germans started to use the word Rechtstaat: a legal system where citizens can sue the government and hope to have a fair confl ict resolution by an "independent" judge.Indeed, we have to notice that we fi nd once again in this last case the fi rst form of independence: the possibility for the judge to be unbiased vis-à-vis the two parties of the trial! 10 To avoid misunderstandings, it must be stressed that the type of analysis engaged in from now on is different from an historical-sociological project.It is not asked here why a more or less independent judicial power was established in modern society; in that perspective something like a Pontius Pilate theory of "washing the hands" can make sense. 11The question to be discussed is what type of ideology12 social actors produced in order to fi nd support for some (thin or thick) version of a independent/distinct judicial power.
Moving from such a question, the triadic typology that is proposed for consideration goes under the names of three rightly "celebrated" authors: Montesquieu, Edward Coke and Thomas Hobbes.

The pouvoir nul. The "zero" degree of power
The ideology of the French Revolution, which has long been very infl uential in the European continent, proposed a special interpretation of Montesquieu's formula according to which the judiciary is a "null power".To summarize briefl y, the idea is that the legitimacy and the justifi cation of an independent judiciary originates from the paradoxical circumstance of its lack of power!In fact, the exact meaning of the expression "pouvoir nul" in the Esprit des Lois XI.6 was that the judicial power had to be exercised (or more precisely was exercised in England, according to Montesquieu)13 by popular juries, and not by professional judges.The point here is not to re-examine the historical truth of what Montesquieu did really say. 14It is a destiny common to many great thinkers that they have been misunderstood and become famous and infl uential through misunderstandings. 15t suffi ces simply to draw attention to the fact that the French Revolution and a large part of the continental legal culture introduced both professional, bureaucratic judges and the fi ction of a null power.Michel Troper goes even further, writing that "le système juridique français, parce que il est fondé depuis la Révolution sur la primauté de la loi, ne saurait admettre l'existence d'un pouvoir judiciaire." 16Cazalès, an ultra-conservative and monarchical member of the fi rst French National Assembly, spelled out the same point: "le jugement est l'acte matériel de application de la loi" (Royer, 1996, p.  263).What does that mean?
The judge produces decisions concerning the liberty (and sometimes unfortunately the life) of citizens by a judgment, a sentence.But what is a sentence?The French Revolution, Cazalès, Condorcet and Kant (names which are not normally associated!) claim that the sentence is simply the conclusion of a syllogism.Kant, in the Metaphysische Anfangsgründe der Rechtslehre (1797), paragraph 45, writes: Every state contains three powers, i.e. the universally united will is made up of three separate persons (trias politica).These are the ruling power (or sovereignty) in the person of the legislator, the executive power in the person of the individual who governs in accordance with the law, and the judicial power (which allots to everyone what is his by law) in the person of the judge (potestas legislatoria, rectoria et iudiciaria).
[…] They can be likened to the three propositions in a practical operation of reason [syllogism]: the major premise, which contains the law of the sovereign will, the minor premise, which contains the command to act in accordance with the law (i.e. the principle of subsumption under the general will), and the conclusion, which contains the legal decision (the sentence) as to the rights and wrongs of each particular case17 .
We know that this doctrine of the practical syllogism, applied to the judicial power, has been denounced as fi ction for a long time. 18It is less well known, parenthetically, that Carl Schmitt published a radical criticism of the same doctrine in 1912, in his fi rst book Gesetz und Urteil,19 the starting point of his so-called "Decisionismus".Nonetheless, that fi ction produced two practical effects.This is, by the way, a good reason to take it into account.On the one hand, it justifi ed the absence of responsibility of the judge.An automaton that does not exercise any will cannot and does not need to be accountable, notably since there is always a superior court (the Cour de cassation) checking the logical deduction of the judge. 20On the other side, the same "fi ction" justifi ed the constitutional subordination of the judiciary to its two more important brothers: the legislative and the executive powers.As Adrien Duport said in the debate on the organization of the judiciary in the Constituent Assembly:"il n'y a réellement de pouvoir dans l'ordre judiciaire que le pouvoir exécutif [...]" (Royer, 1996, p. 263).
To summarize that point, the doctrine of the independent,21 subordinate judiciary22 asserts that where there is no will, there is no responsibility, since responsibility, accountability and control imply the exercise of some decision, volition or discretion that by this ideology are denied to judges and judicial function.So if it is accepted that the judge does not do anything else than applying/enforcing the law, then there will be no specifi c problem of legitimacy for the judicial authority!This must be obeyed because the judge is just the mouth of the law, applying the general will of the people to a concrete case.To speak like Rousseau, in obeying the judge, we just obey ourselves (or the elected legislator) and remain perfectly free because no heteronomous will is imposed on us.

A special knowledge. Edward Coke, Artifi cial Reason and James I
The second model or discursive ideal type of legitimizing judicial power comes from a conceptual world older than democracy, or French liberal culture.It is found in the universe of competence or expertise, among judges of English common law courts, which, in a context different from the French Revolution, opposed the monarchical power.
Why do we obey the prescriptions of a medical doctor?We certainly believe she is making a choice and even imposing prescription on our behavior.But we believe also that we will be better off in obeying her if we really think the doctor knows what she is doing.A sophisticated version of this type of argument was fi rst spelled out by the judge Sir Edward Coke in the confl ict between King James I and the English courts of common law, of which Coke was the chief justice.In a remarkable text he argued against James that the knowledge of the laws of England "requires long study and experience before that a man can attain to the cognizance of it".This argument was made to persuade the King that he might have the constitutional power to be the fi nal judge of a confl ict, but he had not the "artifi cial reason" in order to correctly exercise it.So, King James would have to leave that power/ competence to his competent judges.
To understand better this type of argument we may turn briefl y to the contemporary historical context.The English 17 th century was characterized by a confl ict of arms and words among different segments of the ruling elite.The best-known aspects of this confl ict are those between the crown and the aristocracy and the clash between the King and the Parliament concerning the question of the prerogative, when the Stuarts tried to break the mixed government in favor of an absolutist version of the monarchy (this at least is the parliamentary version of the confl ict).The focus here will be on a different aspect, probably less well known, but of great interest to the present topic: the confl ict between James I and the courts of common law.
Sir Edward Coke is famous in the history of legal doctrine as the champion of the judiciary independence vis-à-vis the political power of the King. 23The victory in 1688, thanks to the Glorious Revolution, of a strong parliamentary version of the ancient doctrine of King in Parliament puts this event into perspective. 24The reason why it is also addressed here is that it contains the matrix of one of the important ideologies of a legitimate judicial power, the ideology that in a particular taxonomy can be called "legitimacy through expertise".In 1607, in connection with a dispute between the High Commission, an ecclesiastical court of which the chief justice was the Archbishop Bancroft, and the Court of Common Pleas, its chief justice, Coke, issued an opinion that may be considered as the manifesto of that ideology.In the opinion known as Prohibitions del Roy (12 Coke's Reports 63) we read: [Bancroft claimed that] the King himself may decide [= judge] in his royal person; and that the Judges are but delegates of the King, and that the King may take what causes he shall please to determine, from the determination of the Judges, and may determine them himself.And the Archbishop said, that this was clear in divinity, that such authority belongs to the King by the words of God in the Scripture.To which it was answered by me, in the presence, and with the clear consent of all the Judges of England, and Barons of the Exchequer, that the King in his own person cannot adjudge any case, either criminal, as treason, felony, etc., or betwixt party and party, con-Revista de Estudos Constitucionais, Hermenêutica e Teoria do Direito (RECHTD), 2(2):193-200 cerning his inheritance, chattels, or goods, etc., but this ought to be determined and adjudged in some court of justice, according to the law and the custom of England […] Then the King said, that he thought that the law was founded upon reason, and that he and others had reason, as well as the Judges; to which it was answered by me, that true it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the law of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artifi cial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it; and that the law was the golden met-ward and measure to try the causes of the subjects; and which protected his Majesty in safety and peace; with which the King was greatly offended, and said, that then he should be under the law, which was treason to affi rm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege. 25 have to bear in mind that, since the 13 th century, England was one of the fi rst countries in western society where an elite group of law specialists existed, 26 exercising, by the King's delegation, the judicial power.Coke was the ideologue and spokesman of those judges of common law.To follow the traces of this ideology in the American continent would be an interesting inquiry, but it is certainly not possible here.
The direction shall turn instead to the third element of the taxonomy directly connected with Coke's doctrine.Indeed, his defense of the independence of judicial power and its foundation on the judges' expertise became the polemical target of a radical criticism by one of the strongest and least-listened to supporters of the King's power: Thomas Hobbes.

Impartiality. The moral foundation of Judicial Power
During the 1760s, Hobbes wrote a book, The Dialogue between a philosopher and a student of common law of England, 27 entirely devoted to the criticism of Coke (who died much earlier, in 1633 or 1634).But the essential core of his argument was presented in chapter 26 of his Leviathan devoted to "civil laws". 28It is important to analyze this text in some detail, since it incorporates the essential core of what might be called the ideology of impartiality as a foundation of the judicial function. 29obbes (Hobbes and Curley, 1994, p. 197-198) starts by distinguishing the role of judge [the good Interpreter of the Law] from the fi gure of the attorney [Advocate].Only the latter, he claims, needs to study the law of the land.As to the former, he is only supposed to know facts from the witnesses and statutes with the help of competent individuals authorized by political authority.Intuitively, it appears that Hobbes is opposing Coke herein on the Roman republican division of competencies between the praetor and the iudex!In any event, his argumentative strategy consists of separating expertise from judgment/adjudication.In order to support his point, he puts forward examples drawn from English institutions: the House of Lords as a court of justice ("few of them were much versed in the study of the Laws, and fewer had made profession of them") and the popular jury ("Twelve men of the common People are the Judges, and give Sentence not only of the Fact, but of the Right").Now, says Hobbes, since these "judges" are not supposed to know the law, there is somebody "that hath the Authority to inform them of it" [of its content].
Having established this distinction between the two functions of judging and knowing the law -exactly the contrary of what Coke argued -Hobbes goes on to explain the (moral) qualities that are "required in a Judge".In opposition to competence and expertise, he puts at the bottom of judicial power the moral quality of impartiality, which in his own language is called, surprisingly enough, equity.
not on the reading of other men Writings, but on the goodness of a man own natural Reason, 30 and Meditation, is presumed to be in those most, that have had most leisure, and had the most inclination to meditate thereon.Secondly, contempt of unnecessary Riches, and Preferments.Thirdly, To be able in judgment to divest himself of all fear, anger, hatred, love, and compassion.Fourthly, and lastly, Patience to hear; diligent attention in hearing; and memory to retain, digest and apply what he hath heard.
"Equity" in the language of contemporary English jurisprudence meant "the recourse to general principles of [natural] justice to correct or supplement the provision of a law" (Oxford English Dictionary).According to Grotius: "the correction of that, wherein the law (by reason of its universality) is defi cient" (in Blackstone, Commentaries of the Laws of England, vol.I, p. 14). 31Hobbes, as he often does, modifi es the sense of a word -remember his sovereign defi nes the meaning of words!Equity is according to him a law of nature, exactly the 11th.Here is the defi nition from chapter 15: If a man be trusted to judge between man and man, it is a precept of the law of nature, that he deal equally between them.For without that, the controversies of men cannot be determined but by war.He therefore that is partial in judgment, doth what in him lies, to deter men from the use of judges, and arbitrators; and consequently, against the fundamental law of nature, is the cause of war.The observance of this law, from the equal distribution to each man, of that which in reason belongeth to him, is called EQUITY, and, as I have said before, distributive justice: the violation, acception of persons, προσωποληψíα [partiality]. 32do not want to offer here a conclusion to this fi rst genealogical exploration, but perhaps only stress that independence of the judicial power has always to be understood as an instrument to achieve the goal of impartiality; and that independence has to be conceived of as neutrality, and absence of the subordination of the judge to (a) the parties to the confl ict, (b) to any other power interested in a given resolution of the confl ict, and as far as possible (c) to the bias of passions and partiality of the judge himself or herself.