A Revised Theory of Judicial Independence

Although “judicial independence” is a much revered principle and there is much writing about the conditions needed to support it, the literature on judicial independence lacks a clear and coherent sense of what judicial independence is. In this chapter I apply the general account I gave of judicial independence in the introduction to a 2001 international book on judicial independence to the essays written for this volume which focuses on Canada. I find that most of the conditions that I submitted were essential ingredients of judicial independence are discussed in the contributions to this book. But I also find that there is a tendency to conflate judicial independence with judicial impartiality or with one particular condition for safeguarding judicial independence. The contents of the book indicate to me that the gravest threats to judicial independence in Canada stem from populist law and order conservatism and undue partisan political influence on the appointment and promotion of judges by the federal government.