Shimon Shetreet and Christopher Forsyth (eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, Leiden: Martinus Nijhoff, 2012, 662 pp, hb €155.
| Date | 01 January 2013 |
| Author | Lorne Neudorf |
| Published date | 01 January 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12009_2 |
Shimon Shetreet and Christopher Forsyth (eds),The Culture of Judicial Independ-
ence: Conceptual Foundations and Practical Challenges, Leiden: Martinus
Nijhoff, 2012, 662 pp, hb €155.
It has now been more than 25 years since Shimon Shetreet and the late
Canadian judge Jules Deschênes produced the volume Judicial Independence:The
Contemporary Debate, a ground-breaking collection of scholarship on the inde-
pendence of the judiciary (also published by Martinus Nijhoff). In their new
book The Culture of Judicial Independence: Conceptual Foundations and Practical
Challenges, Shetreet and Christopher Forsyth have sought to build upon this
legacy by putting together an ambitious range of contributions on judicial
independence. In seven parts, the book features 33 chapters written by academ-
ics, judges, and lawyers who originally presented their work at a series of
conferences organised by Shetreet over the past five years. In the introduction,
the editors state that the book provides an analysis of a culture of judicial
independence by looking to the experiences of domestic and international
judiciaries. This review is necessarily selective given the large number of con-
tributions: it highlights one piece from each of the first three parts,catalogues the
judicial systems studied in the fourth and fifth parts in order to assist comparative
researchers in locating relevant work, and concludes by offer ing an analysis of
the book as a whole.
Chapters in the first part of the book examine the meaning of an independent
judiciary. In Chapter 2, Shetreet discusses the concept of a ‘culture of judicial
independence’. From the starting point that an independent judiciary is necessary
to the proper administration of justice, Shetreet argues that governments are
responsible for developing a culture to support independent courts. Shetreet
identifies and describes five essential ingredients of this culture: institutional
structures, constitutional infrastructure, legislative provisions and constitutional
safeguards, adjudicative arrangements and jurisprudence, and ethical traditions
and codes of conduct.While Shetreet’s focus on culture is a welcome approach
to the scholarship on judicial independence, his prescription of what is required
to achieve a culture of judicial independence tends to focus on the enactment
of formal rules shielding courts from interference. However, the relationship
between formal rules and a culture of independence may not be so straight-
forward. At the very best, rules work in a bidirectional manner with culture:
while rules are capable of normative influence, they are typically enacted to give
expression to a social consensus of appropriate standards in the first place.Thus,
depending on the context, the enactment of rules to protect judges may not
create the culture of independence that Shetreet expects, particularly in the
absence of underlying support for the value of independence embodied in the
rules.As obser ved by the economist Douglass North, informal practices are often
much more important than rules and make up a larger proportion of the total
number of institutional constraints. It would have been interesting for Shetreet to
have further explored the relationship between formal rules and informal prac-
tices, such as conventions, which regulate many of the interactions between the
judiciary and the other branches of government even in highly developed
western democracies.
bs_bs_banner
Reviews
© 2013 TheAuthors. The Modern Law Review © 2013The Modern Law Review Limited. 181
(2013) 76(1) MLR 178–190
To continue reading
Request your trial