Judicial independence: The judge as a third party to the dispute Neudorf, Lorne, McGill University, LLM Thesis 2009

Abstract

In this thesis, the author sets out a conceptual framework for judicial independence. From the starting point of adjudication as the basic function of the judiciary, the author embarks on an historical inquiry to shed light on the judicial determination of disputes. This inquiry reveals an ancient tradition of adjudicative impartiality stretching back to ancient Egypt. This tradition of impartiality is the unifying theme in Hobbes' theory of law. In the state of nature, each person possesses complete liberty. In order to enter into a peaceful society, persons must give up the right to decide their own disputes. Since persons can no longer act as their own judges, a third party must resolve legal conflict. Given this understanding, the author proposes the perception of impartiality as the fundamental rationale of judicial independence. Judicial independence creates the necessary space between judges and potential sources of undue influence to preserve the status of the judge as an impartial third party to the dispute. Finally, the author critiques the doctrine of judicial independence in Canadian law from the perspective of this conceptual framework.