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This book examines the legal principle of judicial independence in
comparative perspective with the goal of advancing a better
understanding of the idea of an independent judiciary more
generally. From an initial survey of judicial systems in different
countries, it is clear that the understanding and practice of
judicial independence take a variety of forms. Scholarly literature
likewise provides a range of views on what judicial independence
means, with scholars often advocating a preferred conception of a
model court for achieving 'true judicial independence' as part of a
rule of law system. This book seeks to reorient the prevailing
approach to the study of judicial independence by better
understanding how judicial independence operates within domestic
legal systems in its institutional and legal dimensions. It asks
how and why different conceptualisations of judicial independence
emerge over time by comparing detailed case studies of courts in
two legally pluralistic states, which share inheritances of British
rule and the common law. By tracing the development of judicial
independence in the legal systems of Malaysia and Pakistan from the
time of independence to the present, the book offers an insightful
comparison of how judicial independence took shape and developed in
these countries over time. From this comparison, it suggests a
number of contextual factors that can be seen to play a role in the
evolution of judicial independence. The study draws upon the
significant divergence observed in the case studies to propose a
refined understanding of the idea of an independent judiciary,
termed the 'pragmatic and context-sensitive theory', which may be
seen in contradistinction to a universal approach. While judicial
independence responds to the core need of judges to be perceived as
an impartial third party by constructing formal and informal
constraints on the judge and relationships between judges and
others, its meaning in a legal system is inevitably shaped by the
judicial role along with other features at the domestic level. The
book concludes that the adaptive and pragmatic qualities of
judicial independence supply it with relevance and legitimacy
within a domestic legal system.
This book examines the legal principle of judicial independence in
comparative perspective with the goal of advancing a better
understanding of the idea of an independent judiciary more
generally. From an initial survey of judicial systems in different
countries, it is clear that the understanding and practice of
judicial independence take a variety of forms. Scholarly literature
likewise provides a range of views on what judicial independence
means, with scholars often advocating a preferred conception of a
model court for achieving 'true judicial independence' as part of a
rule of law system. This book seeks to reorient the prevailing
approach to the study of judicial independence by better
understanding how judicial independence operates within domestic
legal systems in its institutional and legal dimensions. It asks
how and why different conceptualisations of judicial independence
emerge over time by comparing detailed case studies of courts in
two legally pluralistic states, which share inheritances of British
rule and the common law. By tracing the development of judicial
independence in the legal systems of Malaysia and Pakistan from the
time of independence to the present, the book offers an insightful
comparison of how judicial independence took shape and developed in
these countries over time. From this comparison, it suggests a
number of contextual factors that can be seen to play a role in the
evolution of judicial independence. The study draws upon the
significant divergence observed in the case studies to propose a
refined understanding of the idea of an independent judiciary,
termed the 'pragmatic and context-sensitive theory', which may be
seen in contradistinction to a universal approach. While judicial
independence responds to the core need of judges to be perceived as
an impartial third party by constructing formal and informal
constraints on the judge and relationships between judges and
others, its meaning in a legal system is inevitably shaped by the
judicial role along with other features at the domestic level. The
book concludes that the adaptive and pragmatic qualities of
judicial independence supply it with relevance and legitimacy
within a domestic legal system.
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