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25 U. Miami Inter-Am. L. Rev. 57 (1993-1994)
The Limits of Judicial Independence

handle is hein.journals/unmialr25 and id is 65 raw text is: PERSPECTIVE THE LIMITS OF JUDICIAL INDEPENDENCE OWEN M. FIss* Two assumptions frequently underlie discussions concerning the transitions from dictatorship to democracy that occurred in Latin America in the 1980s. The first is that the judiciary will have an important role to play in the new democratic regimes, and the second is that every effort must be made to assure the judiciary's independence. I can readily embrace both assumptions, but hesi- tate because I believe that the concept of judicial independence is far more complex than first appears. The term independence is generally used to characterize the relationship of the judiciary to other institutions or agencies.1 An independent judge is one who is not under the influence or control of someone else. An element of ambiguity arises, however, because * Sterling Professor of Law, Yale University. I wish to thank Terence Anderson, Eric Beckman, Eric Bentley, Jr., Marcel Bryar, Rodrigo P. Correa, Steve Diamond, Kenneth Held, Elizabeth Iglesias, Stanley Katz, Jonathan Miller, Maxwell Peltz, Keith Rosenn, Pablo Ruiz-Tagle, Kevin Russell, Irwin Stotzky, and Olivier Sultan for commenting on this paper and giving me the benefit of their thoughts. An earlier version of this paper was presented at a conference held at the University of Miami in March 1992, and later published in TRANSITION TO DEMOCRACY IN LATIN AMERICA: THE ROLE OF THE JUDICIARY (Irwin P. Stotzky ed., 1993). 1. Independence is an essential attribute of good judging, but it is not the only one, and nothing is gained by letting it stand for all the judicial virtues. I therefore take exception to Professor Kahn's broadening of the notion of judicial independence to include indepen- dence from ideology. Paul W. Kahn, Independence and Responsibility in the Judicial Role, in TRANSITION TO DEMOCRACY IN LATIN AMERICA: THE ROLE OF THE JUDICIARY 73 (Irwin P. Stotzky ed., 1993); see also Jorge Correa Sutil, The Judiciary and Political System in Chile: The Dilemmas of Judicial Independence During the Transition, in TRANSITION TO DEMOCRACY IN LATIN AMERICA: THE ROLE OF THE JUDICIARY, supra, at 89. Judges can be independent, yet fail in discharging their most elemental duties because they do not under- stand the issues before them, lack courage, or are captured by an outworn and antiquated philosophy.

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