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Guarnieri, Carlo --- "Judges, their Careers, and Independence" [2012] ELECD 767; in Clark, S. David (ed), "Comparative Law and Society" (Edward Elgar Publishing, 2012)

Book Title: Comparative Law and Society

Editor(s): Clark, S. David

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849803618

Section: Chapter 10

Section Title: Judges, their Careers, and Independence

Author(s): Guarnieri, Carlo

Number of pages: 23

Extract:

10 Judges, their careers, and independence
Carlo Guarnieri*


Modern political systems entrust judges with the function of adjudicating disputes
arising from the application of recognized legal norms. In constitutional democracies,
judges enjoy strong guarantees, regulated by ordinary statutes, organic laws, constitu-
tional norms and often supported by settled practices. However, although within a set of
common principles, comparatists can single out different legal traditions--with signifi-
cant implications for the status of judges.


1 JUDICIAL IMPARTIALITY AND INDEPENDENCE

One cannot analyze the status of the judge without taking into consideration its insti-
tutional function: adjudication. Adjudication is a type of dispute resolution that relies
on an independent, third-party facilitator: an externally appointed judge.1 Therefore,
the freedom of action of the parties to the dispute is limited. They must comply with
the judge's decision, even though they have no control over the choice of judge, whom
the state imposes. In general, judicial proceedings are much more effective than other
proceedings--such as mediation or arbitration--because they do not need the consent
of both parties to achieve a resolution of the dispute. However, one should weigh this
effectiveness against the risks for the disputing parties who must relinquish much more
control over the proceeding. Judicial proceedings are usually initiated without mutual
consent, as legal disputes are triggered by the action of one party against another. In some
cases, for example in criminal proceedings, a public prosecutor acting on behalf of the
state can initiate proceedings, not only against ...