Key Ingredients in the Rule of Law Recipe: The Role of Judicial Independence in the Effective Establishment of the Rule of Law.

摘要

In recent decades, countries around the globe have engaged in rule of law and judicial reform initiatives, with such efforts being most prominent in transitional democracies, postconflict and post-communist countries. Despite the fact that the concepts of judicial independence and the rule of law continue to be contested among political and legal scholars, popular wisdom and belief in the international community suggests that an independent judiciary is the cornerstone of a democratic, market-based society based on the rule of law. However, the disagreement over the extent to which an independent judiciary effects the establishment of the rule of law has resulted in the failure to determine whether an independent judiciary is necessary for the establishment of the rule of law, and thereby a stable and peaceful society where human rights and civil liberties prevail.;This paper examines the effect of judicial independence on the establishment of the rule of law, and analyzes whether the type of political regime and legal system of a country affects judicial independence and the rule of law. I use data available from the most recent years of 2007 through 2012 that are comprised of a set of indicators of judicial independence and the rule of law covering 51 different countries in the global system. OLS multiple regression is used to analyze the effect of three independent variables (legal system, type of political regime, and judicial independence) on two dependent variables (judicial independence and the rule of law). It is expected that higher levels of judicial independence will be strongly associated with an established rule of law, and that the type of political regime and legal system will affect the presence of a highly independent judiciary.;Additionally, I employ qualitative case studies of Serbia and Moldova in order to examine justice sector reforms taking place and assess their impact. The cases of Serbia and Moldova provide an example of the global effort to reform the rule of law and establish an independent judiciary and demonstrates the need to enshrine judicial independence not only within the content of legal documents, but also in practice.;The results of the comparative quantitative analysis demonstrate the importance of judicial independence, particularly de facto judicial independence, in establishing the rule of law. Furthermore, the qualitative studies of Serbia and Moldova show how the lack of judicial independence in both countries can be linked to human rights violations adjudicated by the European Court of Human Rights (ECHR). The goal of this research is to add to the growing field of transitional justice, and contribute to comparative law and politics literature concerning judicial independence and the rule of law.