International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Summer 2012 Issue

In Review:
New Publications on International and Comparative Law


A Distinct Judicial Power: The Origins of an Independent Judiciary: 1606 -1787
By Scott Douglas Gerber
Oxford University Press. 2011

A Distinct Judicial Power: The Origins of an Independent Judiciary: 1606 -1787Reviewed By: James G. Apple, Editor-in-Chief, International Judicial Monitor, and President, International Judicial Academy

One of the major international developments in the post World War II years relates to the nature of the judiciary in individual nations and in international tribunals. Slowly being recognized as a fundamental characteristic of a functioning judiciary in a modern nation and in international tribunals is its independence from political interference and its independence from cultural, social, and commercial forces that have or might have an interest in its proceedings and their outcomes.  An independent judiciary is now even recognized as a human right – citizens who appear in court to answer criminal charges against them or to have their civil controversies adjudicated have a fundamental human right to an independent judge in the hearing and deciding of the case.

One example of this relatively new emphasis on the necessity of an independent judicial officer for hearing and resolving disputes extends even to arbitral courts and arbitration proceedings. One of the issues that arose soon after the creation, in 1981, of the Court of Arbitration for Sport (CAS) was its independence from its creator, the International Olympic Committee (IOC) (see International Tribunal Spotlight, International Judicial Monitor, this issue). The original CAS was criticized by a national tribunal as being too closely tied to the IOC and thus its organic statute had to be revised to make it clearly independent of the IOC.

The question of whether a particular judiciary, national or international, is truly independent is an important one. Thus knowledge of the origins of the idea for it, its development and the expressions of it in government structures has also become important for appraising existing structures and answering critics when the subject is being debated in political and other fora.

Professor Scott Douglas Gerber of Ohio Northern University Law School, in his new book, offers a detailed and profound examination of both the origins of the idea of an independent judiciary and how that idea has developed over many centuries, and how it was expressed in government structures of the 13 American colonies before the U.S. Constitution came into existence in the late 18th Century. And, despite the book’s title, Professor Gerber does not limit his discussion to what happened in the United States between the years 1606, the year of the signing of the charter creating the first English colony in Jamestown in the “new world” and 1787, the year the U.S. Constitution was drafted. He includes in his discussion, in the initial parts of the book, a look back into antiquity for the origins of the idea.

Two important facts are revealed in Professor Gerber’s effort. First, the idea of an independent judiciary has its origins in the distance past, reaching back even to antiquity, and second, the first establishment of an independent judiciary as part of a specific government architecture is very much an early American experience.

Professor Gerber has divided his book into Three Parts. Part I is devoted to “The Political Theory of an Independent Judiciary” and is perhaps the most interesting part, in that he establishes the origins of it in the writings of Aristotle, particularly in Book 6 of his Politics, and then traces it through the Middle Ages and the European Enlightenment until it arrives on the shores of North America after the founding of the Jamestown colony in 1607. An independent judiciary, Gerber argues, grew out of political theory that developed over many centuries and postulated three other ideas – the idea of separation of powers in the functioning of different parts of a government, the idea of three parts or three “branches” of government, and the idea that all political  power is derived from "the people."

Following an analysis of Artistotle’s ideas about politics and political architecture, Gerber takes up the contributions of another figure from antiquity, Polybius (203-123 BCE) a Greco-Roman historian who “applies Aristotelian theory of mixed government in his analysis of the Roman constitution.” Other historical figures who are included in his tracing of the history of the idea of an independent judiciary are Marsilius of Padua, law professor and political theorist; an English judge, Sir John Fortescue; the Italian diplomat and political theorist Gasparo Contorina; the English king Charles I (a surprising inclusion, considering that he was beheaded because of his imperial views and actions); the French philosopher Montesquieu; and finally American lawyer, politician, and political theorist John Adams, the second president of the United States. It was perhaps Adams’ pamphlet Thoughts on Government that Gerber credits with “the final step in political theory of an independent judiciary eventually embodied in Article III of the Constitution of the United States.” That particular constitutional article marked the first time in history that the idea of an independent judiciary was actually expressed and embodied in the structure of a national government (although, as will be seen, it had appeared in some of the governments of the American colonies).

Part II of the book is a very comprehensive review of how judicial power had been expressed in the original thirteen colonies that eventually made up the first states of the United States. Gerber examines carefully the political structures of each colony, from Virginia to Massachusetts, through the Carolinas to Delaware and Georgia, concentrating on how each colony treated the judiciary before the creation of a national government and who were the major individuals who had the most impact on the government structures of the colonies. He places special emphasis on the power of judicial review, the ultimate consequence and characteristic of a truly independent judiciary. Some of the colonies had strong, independent judiciaries, and other colonies had weak, dependent judiciaries. But each in its own way, with the possible exception of Rhode Island, birthplace of an extreme form of religious liberty, contributed to the experience on which the framers of the U.S. Constitution relied when debating and drafting the final version of it. Gerber comments on the sophistication of the framers of the U.S. Constitution:

[I]n their ability to pick and choose which of the preexisting practices [among the several colonies] to embrace and which to reject, including with respect to the judiciary. As will be seen, I credit their sophistication about political architecture to their fluency in the history of ideas.

The third and last section of the book, titled “Judicial Independence, Judicial Review and Individual Rights,” provides a summary of the views in the first two parts. The book concludes, most importantly, with a discussion of the relationship between an independent judiciary; one of its consequences, judicial review; and the protection of individual rights. The author states, in one of his closing paragraphs, that:

[T]he original understanding of judicial review was on all fours with the traditional understanding; the primary purpose of judicial review is to protect individual rights from – for want of a better phrase – “the people themselves".

This observation is confirmed by a personal experience of this reviewer. I was several years ago in the company of a senior member of the U.S. State Department. In a meeting during which we were discussing plans for judicial education programs for judges from the New Independent States of the former Soviet Union, this State Department official, who was concerned about human rights and their abuses in that particular part of the world, commented that “I recently realized, in promoting human rights around the world, that there could be no true protection of human rights without an independent judiciary.”

As noted at the beginning of this review, judicial independence is now a key ingredient of a modern, fair and effective judiciary. For those who promote it and who must answer those critics in a particular society who argue against it, there must be an understanding of where and how the concept was born, how it developed and matured, how it has been expressed in political theory stretching back over two thousand years, and how it has actually been put into practice in government structures. A book that provides all of this knowledge and analysis has never appeared before in one volume. Thus the publication of Scott Gerber’s book is very much a landmark. It should be on the bookshelves of political scientists around the world.

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© 2012 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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