Abstract
This article focuses on conceptual issues regarding the new methodology of the European Network of Councils for the Judiciary (ENCJ) for measuring judicial independence and accountability. First, we argue that the proposal mixes up several concepts – judicial independence, judicial accountability, transparency of the judiciary, and public trust in the judiciary – which should be treated separately. Second, the proposal relies too much on conceptions of independence developed by the judicial community. As a result, it treats judicial administration with higher levels of involvement of judges as inherently better without empirical evidence, and does not sufficiently distinguish between de iure and de facto judicial independence. Moreover, the ENCJ’s indicators of judicial accountability are underinclusive as well as overinclusive and do not correspond to the traditional understanding of the concept. Finally, we argue that the ENCJ has to accept the possibility that (at least some types of) judicial councils (at least in some jurisdictions) might negatively affect (at least some facets of) judicial independence and judicial accountability. As a result, the ENCJ must adjust the relevant indicators accordingly.
Highlights
The European Network of Councils for the Judiciary launched its ambitious project to develop indicators for measuring the independence and accountability of the European judicial system in 2013
We argue that the current European Network of Councils for the Judiciary (ENCJ) report mixes up together too many concepts – judicial independence, judicial accountability, transparency of the judiciary, and public trust in the judiciary – that should be treated separately
Judicial Independence: connecting means and ends In this part we focus on two broader conceptual issues of van Dijk and Vos’s proposal4 to measure judicial independence that has been utilized by the ENCJ in its surveys
Summary
The European Network of Councils for the Judiciary (hereinafter “ENCJ”) launched its ambitious project to develop indicators for measuring the independence and accountability of the European judicial system in 2013 It published its first report in 2014 and soon initiated its survey among judges to study perceptions of judicial independence. During those years the ENCJ worked hard to improve its understanding of judicial independence and accountability and, in doing so, greatly advanced our knowledge of European judicial systems This short article zeroes in exclusively on the conceptual issues regarding the ENCJ’s methodology, as developed by van Dijk and Vos in their leading article to this special issue.. Van Dijk and Vos rely on data measuring public trust in the judiciary instead of judicial independence, which is the central concept of the proposed study
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