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While a constitutional democracy requires an independent judiciary, the same cannot be elected by popular vote. One possible way is that the Executive head would appoint and promote the judges, but this can be misused to hamper the judiciary's independence.

India is facing a similar problem right now. Please point out how other democracies have worked out this problem of maintaining the judiciary's independence as well as to keep them under democratic check?

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    You can't have it be independent and also subject to a popular vote. The compromise is that the judiciary are appointed by democratic representatives, and thereafter left to their own devices, unless subject to disciplinary actions and removed from the role.
    – Nij
    Oct 9 '17 at 3:28
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    In fact the USA does elect some judges by popular vote. The UK uses an independent commission. But the question as written is too broad, every country has its own distinct way of choosing judges. Oct 9 '17 at 8:48
  • @Nij, it depends on what the judiciary is supposed to be independent of. Oct 9 '17 at 10:27
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Each country has its own mechanisms to enforce judicial independence but there are at least three common themes:

  1. You cannot remove judges from office on a whim, nor can you withhold a judge's salary or make their decisions dependent on being reelected/renominated. That is, you cannot bully them into submission by stripping them of their livelihood. In some places judges get a life tenure; in others (h/t Chirlu) like Germany, judges can't get re-elected.

  2. You cannot influence what a judge investigates. That is, you can't boss them around so they investigate a pet case nor can you prevent them from investigating anyone. (This comes with a few caveats in some countries, to shield elected officials from distractions while in office. And as noted by Peter, this only applies in countries with an inquisitorial system. Things are murkier in adversarial systems, in the sense that a prosecutor may or may not get similar protection.)

  3. You can grant some or all judges the power of judicial review. That is, you give judges the power to strike down parts or all of a law for not being constitutional.

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  • Though I now see that this was not explicit in my question - I am rather focused on selection and appraisal of the judiciary. It would help if you answer this specific part of the question.
    – SMJoe
    Oct 9 '17 at 10:19
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    Point 2, of course, is only relevant in countries where the system places investigation in the hands of judges. That would typically include countries whose legal system descends from the Napoleonic Code, and exclude countries whose legal system descends from Common Law. I'm not sure how it works in countries which fall into neither category. Oct 9 '17 at 10:25
  • @PeterTaylor: Interesting. So I can complete the answer if needed, is that to say a US politician could theoretically stop an investigation in its tracks by firing someone like e.g. Robert Mueller? Oct 9 '17 at 11:01
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    In principle it seems that the answer to that question is yes, although the political fallout may not be manageable. Oct 9 '17 at 11:11
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    One important point is to make judges not dependent on being reelected/renominated (otherwise “We’ll only support your renomination if you do what we want during your first term”). You mention one special case of this, life tenure (e.g. SCOTUS); the other option is to forbid reelection altogether (e.g. the German FCC: judges serve for a maximum of twelve years).
    – chirlu
    Oct 9 '17 at 11:26
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Firstly we should take into consideration that having an independent judiciary is a relative idea and is therefore heavily subject to perception. While I'm not making a comment on the effectiveness of any particular approach this is still important.

Secondly we should consider who exactly the judiciary is supposed to be independent from, It can't be independent of everyone so this is an important question.

Using England (and perhaps other parts of the UK) as an example. The judiciary is appointed by the queen officially however the appointments are selected by the judicial appointments committee (JAC) which is it's self appointed by the Lord chancellor (who is a member of the cabinet) who may accept or reject candidates proposed by JAC hence there is a democratic check of sorts.

As you can see the appointments are relatively independent. However, they only remain so providing that the majority of JAC and the lord chancellor allow it to be even with his somewhat limited power the lord chancellor could appoint JAC member that align with his views and hence judges would then be more likely to align with his views. This could be said to be a democratic mechanism of sorts.

The point I'm making here is that appointments can only be independent up to a point and only if those making the appointments wish it to be. Too many democratic checks can also risk the judiciary losing some independence.

Additionally prior to 2005 judges were recommended to the Queen directly by the lord chancellor hence independence was somewhat limited.

There are many other options most of which are either dependent on a government body/Representative or the electorate including:

  • An elected committee to appoint judges - not sure if this happen anywhere currently
  • Elected judges with or without partisan system - various US states 1
  • Appointment by officials (e.g. governors) - various US states 1
  • Assisted appointment a board/committee assists the appointer - various US states 1
  • Appointment by committee this is rather vague but the committee could consist of anyone
  • Appointment by other judges

As you can see none of these approaches make the judiciary entirely independent they simply displace the dependency from one place to another. Although you have said that election will not produce an independent judiciary it might disperse the dependency the most and hence produce the most independent judiciary. Anything more independent than this and your potentially looking at internal appointment systems but this simply makes the judiciary dependent on itself which could have other issues e.g. lack of transparency, internal political self serving.

TL;DR: there are many different potential approaches to judicial appointments but only so much independence can be achieved before it is simply depending on another entity/person/the electorate and democratic check are at risk of eroding Independence.

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The judiciary as an independent entity from the government came first, democracies evolved later. When a government, even a democratic government, would operate in a way so as to make the judiciary not be independent, then that would undermine the government's authority. It only takes a small fraction of the population to start to have doubts about the legitimacy of the system to cause it to collapse. A democratic system is much more vulnerable to such pressures than a dictatorship, but even a dictator would rather have a population that accepts its rule than a population that constantly needs to be repressed.

What would happen if the government is able to influence judicial rulings, is that opposition supporters will start to have doubts about the entire system. The government will have a difficult time getting its legitimacy back, if there is a lack of independent oversight. If that leads to 10% of the population to decide that they are not going to pay their taxes because they think the entire system is rotten (e.g. if there is corruption but the government gets away with it), there is then nothing the government can do to enforce the law on these people; there would be way too many people who are violating the law. So even if, say, 70% of the population strongly support the government, that's not good enough to allow the government to stay in power.

The system would have to be changed to make sure any government gets enough consensus from the population to be able to rule, an independent judiciary is an essential part of making sure that this can work. Now, under a dictatorship, it's easier to deal with a lack of consensus. The judiciary as it exists today has evolved under such undemocratic systems for millenia. This allowed controversial decisions to usually get enough acceptance from the population, instead of such decisions always leading to revolts against the King. If questions were raised, the King could always point to the fact that he didn't make the decision himself. Later when democratic systems appeared, these systems could only work because of the existing judiciary.

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    Can you back up any of this? Right now it reads like your opinion, rather than a statement of fact. Being backed up might help that. Oct 9 '17 at 21:11
  • @indigochild I'll see if I can do that, but it's not in anything I've read so far. Most sources discuss how systems are designed by us, when it's clear to me that evolution due to trial and error over the very long term is a far more important driving force. Even if we've adopted a system according to the ideas of some scholar, then that can still mean that it works due to trial and error having eliminated many alternative systems that other scholars have advocated for. Oct 9 '17 at 22:02

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