Abstract
>The idea that democracy and human rights are best safeguarded by judicial review of legislation under Constitutional instruments has now become dominant in Constitutional discourse.
The preparation of this paper was made possible by SSHRC and FQRSC grants. Thanks go to Mr. Jason Phelan for research assistance and to my colleague Roderick Macdonald for penetrating observations.
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Notes
- 1.
For a description and criticism of this idea, see Richard Bellamy, Political Constitutionalism: A Defence of the Constitutionality of Democracy (Cambridge, CUP, 2007).
- 2.
Carlo Guarnieri & Patrizia Pederzoli, The Power of Judge: A Comparative Study of Courts and Democracy (Oxford: Oxford University Press, 2002), p. 135.
- 3.
Ran Hirschl, Toward Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004), at p. 1. In this comparison, one should bear in mind that the numbers are affected by the post-war de-colonization movement and concentrate on the formal powers of courts.
- 4.
On the proliferation of international tribunals, see Cesare P.R. Romano, “The Proliferation of International Judicial Bodies: The Pieces of the Puzzle,” (1999) 31 N.Y.U. J. Int’l L. & Pol. 709, 710, 711–23.
- 5.
See, for example, Jan Klabbers, Anne Peters, and Geir Ulfstein, The Constitutionalization of International Law (Oxford: OUP, 2009).
- 6.
On the relative dearth of scholarly attention dedicated to the independence and impartiality of international tribunals, see Ruth Mackenzie and Philippe Sands, “International Courts and Tribunals and the Independence of the International Judge,” (2003) 44 Harvard International Law Journal 271.
- 7.
Universal Declaration of Human Rights (Paris: 1948). See article 10. [hereinafter Universal Declaration]
- 8.
International Covenant on Civil and Political Rights (New York: Adopted: 1966 – Effective: 1976) See article 14. [hereinafter International Convenant]
- 9.
The most comprehensive survey of judicial independence remains, Shimon Shetreet and Jules Deschênes (eds), Judicial Independence: The Contemporary Debate (Dodrecht/Boston/ Lancaster: Martinus Nijhoff Publishers, 1985). See also András Sajó (ed.), Judicial Integrity (The Hague, Martinus Nijhoff Publishers, 2004). A number of national reports on judicial independence were presented at the congress of the International Academy of Comparative Law in July 2006 but these have not been the object of systematic publication. For a recent collection of essays focusing on accountability vis-à-vis independence, see Guy Canivet, Mads Andenas & Duncan Fairgrieve (eds), Independence, Accountability, and the Judiciary (London: British Institute of International and Comparative Law, 2006). For an interdisciplinary collection of essays from a US American perspective, see Stephen B. Burbank and Barry Friedman (eds), Judicial Independence at the Crossroads: An Interdisciplinary Approach (Thousand Oaks, CA: Sage Publications, 2002). A survey of judicial independence was recently conducted under the aegis of the Organization for Security and Cooperation in Europe and will be published in 2011: Anja Seibert-Fohr, ed., Judicial Independence in Transition (New York: Springer, 2010).
- 10.
The following is a list of instruments that were considered in the preparation of this paper: the Syracuse Draft Principles on the Independence of the Judiciary, 1981 (International Association of Penal Law and International Commission of Jurists); the Tokyo Principles on the Independence of the Judiciary in the Lawasia Region, 1982 (LAWASIA Human Rights Standing Committee); the International Bar Association Code of Minimum Standards of Judicial Independence, New Delhi 1982 (International Bar Association) [IBA Code]; the Montreal Universal Declaration on the Independence of Justice, 1983 (World Conference on the Independence of Justice); the UN Basic Principles on the Independence of the Judiciary, 1985 (General Assembly endorsement) [UN Basic Principles], the Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region, 1995 (Conference of Chief Justices of Asia and the Pacific Region) [Beijing Statement], the Latimer House Guidelines on Parliamentary Supremacy and Judicial Independence, 1998 (Commonwealth Parliamentary Association, Commonwealth Magistrates’ and Judges’ Association, Commonwealth Lawyers’ Association and Commonwealth Legal Education Association) [Latimer House Guidelines]; the European Charter on the statute for judges, 1998 (Council of Europe) [European Charter]; the Beirut Declaration 1999 (First Arab Justice Conference, Arab Center for the Independence of the Judiciary and the Legal Profession, in cooperation with the Center for the Independence of Judges and Lawyers) [Beirut Declaration]; and the Cairo Declaration on Judicial Independence 2003 (Second Arab Justice Conference, Arab Center for the Independence of the Judiciary and the Legal Profession, in cooperation with the United Nations High Commissioner for Human Rights and the United Nations Development Program).
- 11.
See, generally, Leon Trakman, “The Impartiality and Independence of Arbitrators Reconsidered” (2007) 10 International Arbitration Law Review 999.
- 12.
See, for example, Langborger v. Sweden, 22 June 1989, § 32, Series A no. 155.
- 13.
See, for example, Morel v. France, 6 June 2000, no. 34130/96, ECHR 2000-VI. Objective impartiality overlaps with the concept of institutional independence introduced below.
- 14.
American Law Institute/Unidroit Principles of Transnational Civil Procedure, P-1A.
- 15.
Summary Report of the 7th meeting of Committee IV/1, UNCIO XIII, p. 174. A more recent internationally influential statement of the distinction can be found in United Nations Sub-Commission of the Human Rights Commission focusing on judicial administrations, The Administration of Justice and the Human Rights of Detainees: Study on the Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers, U.N. ESCOR, 38th Sess., Agenda Item 9(c), U.N. Doc. E/CN.4/Sub.2/1985/18 & Add.1-6 (1985), §§ 76–79.
- 16.
See, for example, Andrew T. Guzman, “International Tribunals: A Rational Choice Analysis,” U. Penn. L. R., (forthcoming), available on SSRN, abstract 1117613, text accompanying notes 100–02 (“All commentators agree that rules governing selection and tenure, financial and human resources, and perhaps even the trappings of the institution and the judicial role are relevant”).
- 17.
See Peter H. Russell, “Toward a General Theory of Judicial Independence” in Russell & David M. O’Brien (eds), Judicial Independence in the Age of Democracy (Charlottesville/London: University Press of Georgia, 2001) 1, 2–3.
- 18.
See UN Basic Principles, art. 10; Beijing Statement, art. 12; Beirut Declaration, art. 11; European Charter, art. 2.1; Latimer House Guidelines, art. II.1.
- 19.
See Beijing Statement, art. 15; European Charter, art. 1.3; IBA Code, art. 3(a). Note that this requirement is particularly recent, if at all recognized in systems which share British heritage.
- 20.
See UN Basic Principles, arts 12 and 18; Beijing Statement, arts 18, 21, and 22; IBA Code, art. 22.
- 21.
See UN Basic Principles, art. 5 (providing that “Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals”); Beijing Statement, art. 29; IBA Code, arts 18(b), 21.
- 22.
Roosevelt’s well-known court-packing plan of 1937, whereby he threatened to increase the number of Supreme Court judges to secure the majority he thought was needed to get his reform plan through Constitutional review, is probably the best example of the kind of vulnerability that this addresses. The story and its consequences are related in Henry J. Abraham, “The Pillars and Politics of Judicial Independence in the United States” in Peter H. Russell & David M. O’Brien (eds), Judicial Independence in the Age of Democracy (Charlottesville/London: University Press of Georgia, 2001) 25, 32–33; see also Beijing Statement, arts 38–40; Beirut Declaration, art. 3; IBA Code, arts 2, 16, and 24 (providing that “The number of the members of the highest court should be rigid and should not be subject to change except by legislation”).
- 23.
See UN Basic Principles, art. 11; European Charter, art. 6.1; IBA Code, art. 15; Latimer House Guidelines, art. II.2.
- 24.
See Beijing Statement, art. 31; Beirut Declaration, art. 2; IBA Code, art. 14; Latimer House Guidelines, art. II.2.
- 25.
The institutional dimension of administrative autonomy writ large is an evolving concept. A recent report commissioned by the Canadian Judicial Council defines administrative autonomy, after a review of case law, as a Constitutional requirement: Carl Baar, Karim Benyekhlef, Fabien Gélinas, Robert Hann & Lorne Sossin, Alternative Models of Court Administration, Ottawa: Canadian Judicial Council, 2006, available at: <http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_other_Alternative_en.pdf>. One of the oldest cases dealing with administrative autonomy is Bridgman v. Holt (1693), Shower P.C. 111, where the question at issue was whether the right to appoint to the office of chief clerk belonged to the Crown or to the Chief Justice. Chief Justice Holt is said to have sat as one of the litigants in his own court and to have refused to participate in the decision. See Paul Jackson, Natural Justice (London: Sweet & Maxwell, 1979), at p. 27–28.
- 26.
See Beijing Statement, art. 37.
- 27.
See also UN Basic Principles, art. 14; Beijing Statement, arts. 35 and 36; Beirut Declaration, art. 9; IBA Code, arts. 9, 11.
- 28.
Edward L. Rubin, “Independence as a governance machine” in Stephen B. Burbank; Barry Friedman (eds.), Judicial Independence at the Crossroads: an Interdisciplinary Approach (Thousand Oaks, CA: Sage Productions, 2002) 69, at p. 77.
- 29.
Matthew Stephenson, Brief: “Judicial Independence: What It is, How It Can Be Measured, Why It Occurs”, online: World Bank <http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/JudicialIndependence.pdf>.
- 30.
Joseph Raz, The Authority of Law: Essays on Law and Morality (New York: Oxford University Press, 1979), at p. 217.
- 31.
Lon L. Fuller, “The Forms and Limits of Adjudication” (1978) 92 Harvard Law Review 353, at p. 365. [hereinafter Fuller, Forms and Limits]
- 32.
Eli M. Salzberger, “A Positive Analysis of the Doctrine of the Separation of Powers, or: Why Do We Have an Independent Judiciary?” (1993) 13 International Review of Law and Economics 349, at p. 349.
- 33.
Monitoring the EU Accession Process: Judicial Independence (Budapest, Hungary; New York: Central European University Press, 2001), at p. 18.
- 34.
“Instructions addressed to Merikere” in James Henry Breasted, The Dawn of Conscience (New York; London: Charles Scribner’s Sons, 1934), at p. 155.
- 35.
James Henry Breasted, Ancient Records of Egypt, vol. 2 (London: Histories & Mysteries of Man Ltd., 1988 (Reprinted – 1907)), at p. 269, section 668.
- 36.
Wilfred G. Lambert, Babylonian Wisdom Literature (Oxford: Clarendon Press, 1960). pp. 130–133, verses 92–99.
- 37.
On the circulation of legal information from Egypt to Europe, see generally Pier Giuseppe Monateri, “Black Gaius: A Quest for the Multicultural Origins of the Western Legal Tradition” (2000) 51 Hastings L. J. 479.
- 38.
Justinian Codex 3.5,1 imperial decree of year 376. English translation of the Justinian Codex from Fred H. Blume, “Annotated Justinian Code”, edited by Timothy Kearley, 2nd edition, online: University of Wyoming <https://uwacadweb.uwyo.edu/blume%26justinian/> [hereinafter Blume]. The title is ne quis in sua causa judicet vel jus sibi dicat (no one shall be judge in his own cause). Note that the older Codex Theodosianus appears to derive this principle from the rule that no one should be allowed to testify for oneself (II.2.1): Promiscua generalitate decernimus neminem sibi esse iudicem debere. Cum enim omnibus in re propria dicendi testimonii facultatem iura submoriverint, iniquum ammodum est licentiam tribuere sententiae (We decree as a general law that no one ought to be his own judge. As the law denies everyone the right to testify for oneself, it is very unjust to give one the liberty to give judgment [for oneself]).
- 39.
Digest 5.1.17. Unless otherwise indicated, Digest references are from: The Digest of Justinian, Latin text edited by Theodor Mommsen with the aid of Paul Krueger; English translation edited by Alan Watson, V.I (Philadelphia, Penn.: University of Pennsylvania Press, 1985), at pp. 166–167. [hereinafter Digest]
- 40.
In is unclear whether recusation was available in respect of ordinary judges, as opposed to delegated judges. On the controversy opposing Bulgarus and Martinus at the University of Bologna, see Boris Bernabé, La récusation des juges: étude médiévale, moderne et contemporaine (Paris: LGDJ – Montchrestien, 2009), at p. 39. [hereinafter Bernabé]
- 41.
Ibid at p. 14.
- 42.
Justinian’s Institutes, 4.3.
- 43.
Olivia Robinson, “The ‘iudex qui litem suam fecerit’ explained” in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (rom. Abt.), vol. 116, 195, 197. For a comprehensive analysis of the scope of this quasi-delict, see Eric Descheemaeker, “Obligationsquasi ex delicto and Strict Liability in Roman Law” (2010) 31 Journal of Legal History 1.
- 44.
See Justinian Codex, 3.1.16. English translation from Blume, supra note 138.
- 45.
The imperative may be said to have formed part of public consciousness before forming part of juridical science: Georges Del Vecchio, La Justice – La Vérité (Paris: Dalloz, 1955), at p. 129. For biblical references, see Exodus 23, 3–8; Levit 19, 15; Deuteronomy 16, 19.
- 46.
The relevant canons in the 1917 codification were 1613 and 1614: Codex Iuris Canonici. For the relevant canons in the codification of 1983, see: Codex Iuris Canonici (Auctoritatae Ioannis Pauli PP. II Promulgatus Datum Romae: 1983). Book VII – Processes; Part 1 – Trials in general; Title III – The discipline to be observed in tribunals; Chapter 1 – The duty of judges and ministers of the tribunal. Can. 1448–1451.
- 47.
Bernabé, supra note 40, at p. 164. Note that it took another two centuries before royal judges could be challenged. Id., pp. 139–148.
- 48.
On Bracton’s reproduction of canon law sources, see D. E. C. Yale, “Iudex in propria causa: an historical excursus” (1974) 33 Cambridge Law Journal 80, at p. 81, note 6. [hereinafter Yale]. See also S.A. de Smith, Judicial Review of Administrative Action, 3d ed. (London: Stevens & Sons Ltd, 1973) p. 216 [hereinafter de Smith]. For an English translation of Bracton’s De Legibus Et Consuetudinibus Angliae (written between 1250 and 1258), refer to Henry de Bracton (1210–1268), Bracton on the laws and costums of England., vol. 4 (Cambridge, Mass.: Belknap, in association with the Selden Society, 1968–1977) at p. 281. Also, note that the grounds of recusation in canon law today are the same as in Bracton’s days: “Can.1448 §1. A judge is not to undertake the adjudication of a case in which the judge is involved by reason of consanguinity or affinity in any degree of the direct line and up to the fourth degree of the collateral line or by reason of trusteeship, guardianship, close acquaintance, great animosity, the making of a profit, or the avoidance of a loss.”
- 49.
Ordonnance de Louis XIV du mois d’avril 1667, Titre XXIV, in Marc-Antoine Rodier, Questions sur l’Ordonnance de Louis XIV, du mois d’avril 1667, relatives aux usages des cours de Parlement, et principalement de celui de Toulouse (Paris: Birosse, 1761), p. 475ff.
- 50.
de Smith, supra note 48, at p. 216.
- 51.
Id., at p. 217. The reluctance may be attributed in part to the medieval system of grants of jurisdictional franchise, wherein the grantee often found himself judge and party. See Yale, supra note 48, at p. 84.
- 52.
Sir Nicholas Bacon’s Case (1563) 2 Dyer 220b. See also Earl of Derby’s Case (1613) 12 Co. Rep. 114 and Day v. Savadge (1614) Hob. 85.
- 53.
(1610) 8 Co Rep. 113b, 118.
- 54.
On this issue, see Theodore F. T. Plucknett, “Bonham’s Case and Judicial Review” (1926–1927) 40 Harvard Law Review 30.
- 55.
Digest, supra note 39, Digest 5.1.17., at pp. 166–167.
- 56.
The formulation is attributed to Coke by Yale, supra note 48, at p. 80.
- 57.
Sir Edward Coke, The First part of the Institutes of the Laws of England: or, A Commentary upon Littleton (Philadelphia: R.H. Small, 1853 (First published 1628–1644)), 141a [hereinafter Coke’s Institutes]
- 58.
See Bin Cheng, General Principles of Law as applied by International Courts and Tribunals (Cambridge: Grotius, 1987), relating the cases in a chapter entitled “Nemo debet judex in propria sua causa”, pp. 279–289.
- 59.
Id. See also Bardo Fassbinder, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (The Hague: Martinus Nijhoff Publishers, 1998), at p. 329 (tracing the sources of the principle for the purpose of international law).
- 60.
Report on the Project concerning the establishment of an international Court of Arbitral Justice, in James Brown Scott, The Proceedings of the Hague Peace Conferences: Translation of the Official Texts (Buffalo, New York: William S. Hein & Co., Inc., 2000). Originally published by Oxford University Press, 1899–1907. See Volume I (Plenary Conference), at p. 362.
- 61.
Universal Declaration, supra note 7. See Article 10.
- 62.
International Covenant, supra note 8. See Article 14.
- 63.
Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No.14 (Rome: 1950). See generally: Zaim M. Nedjati, Human Rights under the European Convention (Amsterdam – New York – Oxford: North-Holland Publishing Company, 1978); Council of Europe, Collected Edition of the “Travaux Préparatoires”, vol. I (The Hague: Martinus Nijhoff, 1975).
- 64.
A startling example of this is the decision of the Première chambre civile of the Cour de cassation of 28 April 1998 (Civ. 1ère, 28 avril 1998, Rapport de la Cour de Cassation, Section Avril, N° 155), which allowed recusation on the sole basis of the Convention even in cases where the ground invoked lies outside the formally exhaustive grounds of recusation provided by the Code of civil procedure (art. 341).
- 65.
Henry Gerald Richardson and George Osbourne Sayles, Fleta: Edited with a Translation by H.G. Richardson and G.O. Sayles (London: Selden Society, 1953). Book I, c.17, at p. 35: “Moreover, a judgment is a threefold act of three persons at least, the plaintiff, the judge, and the defendant, without which it cannot in law exist.” Fleta was originally published in London, in Latin, circa 1290.
- 66.
Thomas Hobbes, Leviathan (New York: Touchstone, 2008 (first published in 1651)), at p. 117. [hereinafter Leviathan]
- 67.
Fuller, Forms and Limits, pp. 365–66.
- 68.
Digest, supra note 39, Digest 2.1.10., at p. 41–42.
- 69.
Leviathan, supra note 66, at p. 118. This aspect of Hobbes’ treatment is reflected in the celebrated formula put forth by Alexandre Kojève: “C is impartial in respect of A and B if his interaction is not altered and cannot be altered solely by the interchange of A and B” (author’s translation), in Esquisse d’une phénoménologie du droit (Paris: Éditions Gallimard, 1981), at p. 75.
- 70.
Coke’s Institutes, supra note 57, at 141a (“‘It is against reason, that if wrong be done any man, that he thereof should be his own judge.’ For it is a maxime in law, aliquis non debet esse judex in propriâ causâ.”); 294a (“[…] that the foure knights electors of the grand assise are not to be challenged, for that in law they be judges to that purpose, and judges or justices cannot bee challenged.”). See also de Smith at p. 217 (“The reluctance of the common lawyers to recognize the concept of disqualification of judges for interest or bias is illustrated by Coke’s bald assertion that judges and justices, unlike jurors, could not be challenged […] And it was Coke himself who had elevated to a fundamental principle of the common law the proposition that no man should be a judge in his own cause”).
- 71.
Sir William Blackstone, Commentaries on the laws of England, vol. 3 (Oxford: Clarendon Press, [1765]–1969) at p. 361.
- 72.
Bernabé, supra note 40, at p. 39.
- 73.
This is said to have been unequivocally established in R. v. Rand (1868) L.R. 1 Q.B. 230. See de Smith, supra note 48, at p. 216, n. 14.
- 74.
For example, Delcourt v. Belgium, 17 January 1970, §31, Series A no. 11; Campbell & Fell v. United Kingdom, 28 June 1984, Series A no. 80.
- 75.
Lord Hewart C.J. in R. v. Sussex JJ., ex parte McCarthy [1924] 1 K.B. 256, 259.
- 76.
R. v. Byles (1912) 77 J.P. 40: per Avory J; emphasis added.
- 77.
R. v. Camborne JJ., ex parte Pearce [1955] 1 K.B. 41, 52.
- 78.
De Smith, supra note 48, at p. 218.
- 79.
Ibid.
- 80.
See notably Sarjeant v. Dale (1877) 2 Q.B.D. 558, 567. “One important object, at all events, is to clear away everything which might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice, which is so essential to social order and security.”
- 81.
See generally Bernabé, supra note 40, for example, 158, 160, 162, 183, 186, 210, 222, 231, 304–305.
- 82.
See Yale, supra note 48, at p. 83 (“In Coke’s hands the principle was used for something more than keeping subordinate judges to the proprieties of judicature. He employed it to tell the king to his face that the sovereign could not personally judge a cause between himself and his subjects.”). The common law had been wrestling for some time with a similar problem arising out of grants of jurisdictional franchise, where the grantee, like the king, could find himself in the position of both judge and party. Jurisdiction could then be exercised, depending on the grant, by the grantee’s “steward,” “judge,” or “court”: Day v. Savadge, (1615) Hob. 85, 87 (“there the steward is Judge himself and not the grantee, as the King’s judges are between him and the parties…”).
- 83.
Though it is said that he may sit with his lords in the upper house of Parliament and reverse a court decision with the assent of the Lords.
- 84.
Henry De Bracton, De Legibus Et Consuetudinibus Angliae f. 5 b (c1250) (“Ipse autem rex, non debet esse sub homine sed sub Deo et sub lege, quia lex facit regem.”). Coke went on to become Chief Justice of the King’s Bench (which was formally a promotion but actually represented a setback in terms of income) but was eventually sacked after refusing to allow for consultation of the king before proceeding in cases affecting the crown or its prerogatives. See Allen D. Boyer, Coke, Sir Edward (1552–1634) ((Online edition of) Oxford Dictionary of National Biography: Oxford University Press, 2004) under “King’s bench and chancery”, paragraphs 1, 5.
- 85.
Many of Coke’s views prevailed with the Petition of Rights of 1628 (which he was instrumental in getting through Parliament), the Bill of Rights of 1688, and the Act of Settlement of 1701.
- 86.
Luc Heuschling, État de droit, Rechtsstaat, Rule of Law (Paris: Dalloz, 2002). See also Rainer Grote, “Rule of Law, Etat de droit and Rechtsstaat – The Origins of the Different National Traditions and the Prospects for their Convergence in the Light of Recent Constitutional Developments”, starting at p. 271 in Christian Starck (dir.) Constitutionalism, Universalism and Democacy (Baden-Baden: Nomos Verlagsgesellschaft, 1999).
- 87.
James Harrington, The Commonwealth of Oceana (first published in 1656) “the art whereby civil society is instituted and preserved upon the foundations of common rights and interest [… is], to follow Aristotle and Livy, the empire of laws and not of men” (p. 35 of the 1771 edition). John Adams famously took this up in Novanglus Paper No 7 (February 1775), available from the Online Library of Liberty : http://oll.libertyfund.org.
- 88.
Voltaire, Pensées sur l’administration publique, 1756, chap. XX (originally published in 1752 as Pensées sur le gouvernement). English translation from Voltaire, Political Writings (Edited and Translated by David Williams: Cambridge University Press, 1994), at p. 216.
- 89.
The Constitution of Massachusetts of 1780, art. XXX, provides the best evidence in revolutionary thinking of the link between the Rule of Law and the separation of powers: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.” The separation of powers principle was also spelt out in art. 16 of the 1789 French Declaration of the Rights of Man and Citizen: “Every society in which the guarantee of rights is not assured or the separation of powers not determined has no Constitution at all.” See Sean C. Goodlett, “The On-Line SourceBook”, online: Fitchburg State College <http://sourcebook.fsc.edu/history/declaration.html>.
- 90.
Baron de Montesquieu, The Spirit of the Laws, Translated by Thomas Nugent (New York; London: Hafner Press, 1949 (first published 1748)), Book XI, Chapter 6, Paragraphs 4, 5, at p. 152.
- 91.
Id., Book XI, Chapter 4, Paragraph 2, at p. 150. “To prevent this abuse, it is necessary from the very nature of things that power should be a check to power.”
- 92.
“Article 3. The courts may not interfere with the exercise of the legislative power, suspend the execution of laws, encroach upon administrative functions, or summon administrators before them for reasons connected with their duties.” See English translation of Article 3 of the French Constitution of 1791 in Sean C. Goodlett, “The On-Line SourceBook”, online: Fitchburg State College <http://sourcebook.fsc.edu/history/Constitutionof1791.html>.
- 93.
James Madison, The Federalist No. 51. online: Constitution Society <http://www.Constitution.org/fed/federa51.htm>. See also: The Federalist Nos 48 & 49 <http://www.Constitution.org/fed/>. For another reading of the relevant materials, drawing notably on Madison’s correspondence, see Larry Kramer, ‘The Interest of the Man’: James Madison, Popular Constitutionalism, and the Theory of Deliberative Democracy, 41 Valparaiso University Law Review 697 (“Madison … had essentially nothing to say about the third branch” (p. 705) … “and saw the need for [judicial] independence chiefly through the lens of British and colonial experience, which had no doctrine of judicial review, but which taught that judges needed tenure and salary protection to immunize them from being influenced by the more powerful political branches in ordinary civil and criminal cases” (p. 739). The British colonial experience did, of course, know the practice of judicial review of legislation, a practice which was eventually codified by the Colonial Laws Validity Act of 1865 (UK 28 & 29 Vict. C. 63).
- 94.
When performed by the courts ordinarily responsible for private adjudication, public law adjudication may be viewed as using a capital of legitimacy and integrity which it would be difficult for bodies responsible solely for public law adjudication to accumulate.
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Gélinas, F. (2011). The Dual Rationale of Judicial Independence. In: Marciano, A. (eds) Constitutional Mythologies. Studies in Public Choice, vol 23. Springer, New York, NY. https://doi.org/10.1007/978-1-4419-6784-8_10
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