Theorizing Judicial Councils as Fourth Branch Institutions: The Best Defence Against Capture?

Many countries have transferred powers concerning judicial careers and court administration to judicial councils. These independent bodies were supposed to depoliticize the judiciary, maintain a balance between judicial independence and accountability, and ideally increase the quality and efficiency of the judicial branch. However, recent scholarship shows that judicial councils often fail to fulfil these expectations and, instead, become and easy target of various extra and intra-judicial pressures. This paper argues that that independence of judicial councils needs to be institutionally secured both towards the political branches of power, and towards the judiciary itself. It is thus necessary to protect the judicial council against the Scylla of politicization and the Charybdis of corporativism. We argue that redesigning the judicial council as a fourth branch institution has the best potential to secure this balance.

Institutional relationships in the separation of powers

This paper is concerned with the dynamics of institutional relationships in a separation of powers system. It argues that the efficacy of a given system may be shaped by both legal and social understandings of that system’s normative values. It seeks to identify the institutional values that are critical to a minimum account of a functioning separation of powers.

Triple Understanding of Judicial Councils

Despite a burgeoning literature on judicial councils, little attention has been so far paid to the question how they impact the dynamics between the three branches of power. This paper aims to fill this gap and theorize about the place and role of judicial councils in the separation of powers. It shows that judicial councils do not neatly fit within any of the three traditional branches of the state. Instead, there are 3 different understandings of judicial councils: (A) judicial council as a representative of the judicial branch (judge-centred judicial council), (B) judicial council as a coordinating institution representing all three traditional branches of power (interbranch judicial council), and (C) judicial council as a post-branch body (impartial judicial council). We argue that all judicial councils gravitate to one of those models, while only the post-branch type secures sufficient checks and balances and prevents the capture of the judiciary by political or internal forces.

Separation of Powers: The internationalisation of a domestic concept

The separation of powers is seen as one of the hallmarks of a constitutional legal order. Each country rests on some form of division between the three branches of government. Traditionally, it is seen as a fundamentally national concept, with each state deciding for itself how to model the relationships between these branches. However, a recent evolution can be discerned, where the domestic separation of powers is directly influenced by international legal orders.
This paper addresses the impact that two international courts, the ECtHR and the ECJ, have on the domestic separation of powers and its checks and balances. It gives examples of what kind of separation-of-powers issues are brought before these courts and addresses what their impact is. It further explores whether the Courts impose a certain view of the separation of powers on the European states. Finally, it asks the question if it is still tenable to perceive the separation of powers as an exclusively domestic doctrine.