Judicial Independence in Authoritarian Regimes : Lessons from Continental Europe

Some degree of institutional independence is a necessary but not sufficient condition of judicial impartiality. Institutional independence is only one of several determinants of judicial behavior. This is one reason why it is not always easy to single out the “right” degree of (institutional) judicial independence. In fact, even in non-democratic countries, where institutional independence is often limited, judges can exhibit a variable degree of impartiality in deciding specific cases. Of particular importance is the reference group of judges, which varies depending on the nature of the political regime (democratic, authoritarian or totalitarian) and the nature of the legal system (common or civil law). Part I discusses the evolution of judicial independence in Western Europe, emphasizing the importance of reference groups within these different political and legal systems. Part II then applies the experiences of Western Europe to China.