William & Mary Bill of Rights Journal
Abstract
Judicial independence, which first developed in the Anglo-American legal system, is valued by many countries as an important condition for the rule of law. Its existence in any legal system, however, depends on concrete institutional arrangements. In this Article, Professor Plank identifies four institutional elements necessary to establish and maintain an independent judiciary: fixed tenure (with limited exceptions), fixed and adequate compensation, minimum qualifications, and limited civil immunity. The presence of these elements ensures an independent judiciary in many countries. The lack of permanent tenure for judges in most American states, however, raises serious questions about their independence.
To test the extent to which these elements may be universally applicable, Professor Plank analyzes the viability of judicial independence in nineteenth-century Russia. In 1864, Russia first created an independent judiciary when it radically transformed its legal system by incorporating and adapting a Western-style civil law system that purposely established an independent judiciary. The Judicial Reform contained all the institutional elements necessary to ensure the independence of Russian judges, and their independence endured during the remaining half-century of the Russian Empire despite attacks from the government and significant members of society. The successful implementation and operation of an independent judiciary even in the autocratic state of Russia demonstrates that any society desiring to implement a government based on the rule of law may establish and maintain an independent judiciary by incorporating these four institutional elements.