This is the second in a series of articles arising from the recent conference of the International Association of Judicial Independence and World Peace in Moscow.
Most countries with reasonably developed legal systems recognize the importance of judicial independence to the rule of law. Judicial independence often can be more than a just an academic theory or empty slogan. Nonetheless the independent judiciary is under assault today, including in the United States.
This is not new.
As Doris Kearns Goodwin points out in her recent book: The Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism, Theodore Roosevelt's efforts to run for a third term as President of the United States in 1912, and to unseat his friend and former political protege President William Howard Taft, were seriously undermined among potential supporters in his own party by his advocacy of allowing voters to overrule by referendum any "close" unpopular decisions of the U.S. Supreme Court Even many people in the Progressive wing of the Republican Party, who supported referenda and recalls to enact or repeal unpopular legislation at the state and local levels, backed away from what they considered to be an overt assault on the constitutional protection of an independent judiciary.
Speakers at the recent conference of the International Association of Judicial Independence and World Peace in Moscow offered perspectives on the challenges to the independence of the judiciary as an institution (as distinguished from the lack of independence of individual corrupt judges).
In his presentation on "Legal Certainty as One of Most Important Guarantees for Judicial Independence," Professor V.V. Ershov underlined the problems regarding the sources of law, and advocated a system of clear, consistent principles that judges should follow in deciding issues and cases that come before them. Ambiguities in the judicial process and the role of the judiciary in a political system can create environments in which judicial independence is easily compromised.
Dmitry Magonya, the Managing Partner of the Moscow law firm ART DE LEX spoke about the essential role of judicial independence in ensuring access for socially disadvantaged people. The conflicts in the social status or relative economic power of the litigants can create subtle influences even in systems that prize access to justice and equality before the law.
Other participants in the conference included notable international authorities on judicial independence such as Professor Shimon Shetreet (Hebrew University of Jerusalem), Dr. Sophie Turenne (University of Cambridge), and Prof. Marcel Storme (University of Ghent). Delegates from leading universities and institutes in the United States, Australia, and western Europe also contributed their experiences, research, and views.
The goal of the conference was to continue the work of the IAJIWP in developing standards to protect and promote judicial independence throughout the world, which the Association views as essential to the rule of law and the promotion of world peace. Click here for a current edition of the "Mt. Scopus" International Standards of Judicial Independence.
Norman Clark
