When I was admitted as a graduate solicitor to the Supreme Court of the State I had studied in, the Judge said:

Treasure Judicial Independence. You can count on one hand the countries that have it!

He was referring to India, Canada, USA, UK and Australia.

Interestingly enough, many European countries developed democracies around the same time as these countries - but don't have this attribute.

(The European Court of Human Rights is in an exceptional category).

My question is: What is the reason that European Democracies developed without judicial independence?

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    Can you elaborate by what criteria those five countries count as having "judicial independence" but not every other country? – user69715 Dec 30 '17 at 5:04
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    can you be more specific? I mean, even in the US, federal judges are selected by the president and approved by the Senate – user69715 Dec 30 '17 at 7:42
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    Separation of powers (especially trias politica) is a core principle in many modern-day democracies. Of course in practice there's varying level of judicial independence in different countries, but I'm interested if there's any obvious criteria which separates those 5 countries exclusively. Can you be more specific with the criteria, or maybe illustrate by contrasting comparable countries like USA/UK vs France/Germany? – user69715 Dec 30 '17 at 7:45
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    Those five identified countries all derive their legal structure form Magna Carta and English Common Law, while very little of the rest of the world does, and yet you are surprised that those five countries would have a different legal structure. Why? Note that most of Western Europe other than Britain derives its legal structure from the Code Napoleon. – Pieter Geerkens Dec 30 '17 at 14:43
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    I think your list of five countries is totally arbitrary. What about Ireland or New Zealand? Just for a start. – fdb Dec 30 '17 at 18:20

Both separation of powers and checks and balances are important and in a way these two concepts contradict each other. The judiciary has to be independent to check the executive, but it must itself be balanced.

There is no country with true or complete judicial independence, not even the five you named. For instance, the judges of the United States Supreme Court are nominated by the President and confirmed by the Senate. No matter how independent they may be afterwards, the two other branches of government have control about who becomes a judge to start with. As recent history shows, this can be a highly partisan process.

There is the habit to see advantages, disadvantages, and justifications of the own legal and political system quite clearly, while getting only distorted views of the rest of the world. That's a reputation many Americans have, fairly or unfairly.

  • A snarky comment would be that you need a jury separate from the judge only if you don't quite trust the king's judges, but you didn't manage to get rid of them completely, either.
  • Would you say that a city like Ferguson should be allowed to organize independent courts, or wouldn't the citizens benefit if there was a bit more supervision of the municipal court procedures?
  • Is a freely elected judge in a U.S. state court who is coming up for reelection in a couple of months truly more independent than a career judge under the European system who will serve until retirement age?

So, to get to your question:

The European states developed as modern democracies because they had the rule of law, administered by a professional civil service and a professional judiciary. Such a judiciary comes in different forms and traditions.

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