Conceptualizing and measuring judicial independence

Measures of judicial independence play an important role in a variety of cross-national models in political science and economics. Measurement serves also to assess the functioning of judiciaries. This chapter examines cross-national measurement of independence, whether as a single metric or multi-dimensional profile. Measuring starts with definition, and the analysis of the definitions used show different conceptualizations. While in law and judicial governance, independence is interpreted as, put simply, the judge being only led by the law, from which follow requirements for the judiciary, other sciences add dimensions such as the authority of judges and access to justice. It is concluded that stretching the meaning of independence leads to conceptual overlap and confusion. The chapter systematizes the available measurements, starting with the classic distinction between de jure and de facto independence. On the core of de jure independence, agreement exists. As to de facto independence, there is heavy reliance on perceptions, whether expert opinion or surveys among groups in society. More and better data is becoming available, superseding ad hoc data. While perceptions are essential, it is suggested that systematic analysis of judicial decisions as to their controversiality and to their implementation would provide deeper insight into independence.