Practices of Judicial Independence

The figure of the judge in democracy has again become the focus of attention. Whether one considers Donald Trump’s questioning the neutrality of any judge with a Muslim or Latin American background, the Turkish AK Parti’s (Justice and Development Party) interfering with the country’s judiciary system, or the debate about efficiency in court proceedings in the case of German judge Thomas Schulte-Kellinghaus: all of these examples underscore the fact that an analysis of judges’ independence is an essential element of the sociology of the judiciary. Independent judges are the foundation of the separation of powers.

In this constitutional description of society’s various responsibilities, judicial power functions as a “buffer” (Christoph Möllers) against the political enforcement of power. Judges are at the center of this power and as supervisory authorities monitor the legality of the activities of the other branches, the legislature and the executive.

The key question is therefore how this control function is implemented. The standards for determining when a judge is independent have become substantially more rigorous in the past ten to fifteen years. Procedures for ensuring judicial independence have undergone fundamental structural change, ranging from debates about self-organization, obligatory training, and professional codes of conduct to the trend towards a single judge.

The project aims to investigate these transformations in the practice of judicial independence and their effects on judicial authority. The concept of judicial authority combines the sociological question of “authority as a social form” (Wolfgang Sofsky) in organizing a court, between personal charisma and positional power, with the socio-theoretical question of the basis of its legitimacy under the rule of law. In terms of practical research, the focus of the study will be on changing procedures of judicial independence and the actors involved and on their socio-theoretical significance for the separation of powers in a democracy. If the idea of the judiciary’s buffer function is taken seriously, socio-theoretical analysis must take two directions.

(1) To what extent are the possibilities and limits of the “autonomy of the legal system” (Niklas Luhmann) changing? Beyond the much-discussed constitutional question of how increasing demands for strengthening the independence of judges can be transformed into legal forms, the sociological question is what becomes of the legal construct of judicial independence in the everyday practice of the courts. The conditions and procedures for guaranteeing judicial independence have been readjusted in the past three decades. These transformations will be examined in an analysis of the various procedures, their consequences for the office of judge, and the resilience mechanisms that counter change.

(2) Conversely, what does the administration of justice do within this buffer, if it is taken seriously as a force that shapes society? With blanket norms on the one hand and a “judicialization of politics” (Ran Hirschl) on the other hand, the trust and scope for action granted to courts and judicial negotiation are of major importance in the context of political decision-making processes. These insights from recent work in political science and political sociology are particularly relevant for an empirical and theoretical exploration of the legal system, as they elucidate the extent to which the institutional decision-making core of the legal system wields political decision-making power that goes beyond its control function.