The Case for Judicial Councils as Fourth-Branch Institutions

J 2024

The Case for Judicial Councils as Fourth-Branch Institutions

KOSAŘ, David, Katarína ŠIPULOVÁ and Ondřej KADLEC

Basic information

Original name

The Case for Judicial Councils as Fourth-Branch Institutions

Authors

KOSAŘ, David (203 Czech Republic, belonging to the institution), Katarína ŠIPULOVÁ (703 Slovakia, belonging to the institution) and Ondřej KADLEC (203 Czech Republic, belonging to the institution)

Edition

European constitutional law review, Cambridge, Cambridge Univ. Press, 2024, 1574-0196

Other information

Language

English

Type of outcome

Článek v odborném periodiku

Field of Study

50501 Law

Country of publisher

United Kingdom of Great Britain and Northern Ireland

Confidentiality degree

není předmětem státního či obchodního tajemství

References:

Open access článku

Impact factor

Impact factor: 2.100 in 2022

Organization unit

Faculty of Law

DOI

http://dx.doi.org/10.1017/S1574019624000038

UT WoS

001174005900001

Keywords in English

Judicial councils; separation of powers; fourth-branch institutions; judicial independence; four ideal types of judicial councils; a judge-controlled

Abstract

V originále

Many European countries have transferred powers concerning judicial careers and court administration to judicial councils. These independent bodies were intended to depoliticise the judiciary, maintain a balance between judicial independence and accountability, and ideally increase the quality and efficiency of the judicial branch. Supranational organisations, judges, policymakers, lawyers and political scientists argue vehemently whether judicial councils delivered the goods they promised. Constitutional theorists lag behind. They either skipped the debate on where to place judicial councils within the separation of powers, assuming that they belonged to the judicial branch, or lament that judicial councils violate the classical tripartite separation of powers without addressing new advancement in the separation of powers scholarship. This article aims to fill this gap and theorises about the place and role of judicial councils in the separation of powers. It argues that all judicial councils gravitate towards one of four ideal types – judge-controlled, politician-controlled, inter-branch and fourth-branch – each placing the judicial council in a different position vis-à-vis the three classical branches. Based on the experience with judicial councils so far, we argue that conceptualising judicial councils as fourth-branch institutions provides the best protection against the two greatest dangers judicial councils face – corporativism and politicisation.

Links

101002660, interní kód MU

Name: Informal Judicial Institutions: Invisible Determinants of Democratic Decay (Acronym: INFINITY)

Investor: European Union, ERC (Excellent Science)

Files attached

KOSAR_SIPULOVA_KADLEC_The_Case_for_Judicial_Councils_as_Fourth-Branch_Institutions__2024_.pdf

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Citovat

KOSAŘ, David, Katarína ŠIPULOVÁ and Ondřej KADLEC. The Case for Judicial Councils as Fourth-Branch Institutions. European constitutional law review. Cambridge: Cambridge Univ. Press, 2024, vol. 20, No 1, p. 82-119. ISSN 1574-0196. Available from: https://dx.doi.org/10.1017/S1574019624000038.

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   article_location = {Cambridge},
   article_number = {1},
   doi = {http://dx.doi.org/10.1017/S1574019624000038},
   keywords = {Judicial councils; separation of powers; fourth-branch institutions; judicial independence; four ideal types of judicial councils; a judge-controlled},
   language = {eng},
   issn = {1574-0196},
   journal = {European constitutional law review},
   title = {The Case for Judicial Councils as Fourth-Branch Institutions},
   url = {https://www.cambridge.org/core/journals/european-constitutional-law-review/article/case-for-judicial-councils-as-fourthbranch-institutions/9C1A6DBEC87D90D64546EB133BFF6F73},
   volume = {20},
   year = {2024}
}

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SN  - 15740196
KW  - Judicial councils
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KW  - fourth-branch institutions
KW  - judicial independence
KW  - four ideal types of judicial councils
KW  - a judge-controlled
UR  - https://www.cambridge.org/core/journals/european-constitutional-law-review/article/case-for-judicial-councils-as-fourthbranch-institutions/9C1A6DBEC87D90D64546EB133BFF6F73
N2  - Many European countries have transferred powers concerning judicial careers and court administration to judicial councils. These independent bodies were intended to depoliticise the judiciary, maintain a balance between judicial independence and accountability, and ideally increase the quality and efficiency of the judicial branch. Supranational organisations, judges, policymakers, lawyers and political scientists argue vehemently whether judicial councils delivered the goods they promised. Constitutional theorists lag behind. They either skipped the debate on where to place judicial councils within the separation of powers, assuming that they belonged to the judicial branch, or lament that judicial councils violate the classical tripartite separation of powers without addressing new advancement in the separation of powers scholarship. This article aims to fill this gap and theorises about the place and role of judicial councils in the separation of powers. It argues that all judicial councils gravitate towards one of four ideal types – judge-controlled, politician-controlled, inter-branch and fourth-branch – each placing the judicial council in a different position vis-à-vis the three classical branches. Based on the experience with judicial councils so far, we argue that conceptualising judicial councils as fourth-branch institutions provides the best protection against the two greatest dangers judicial councils face – corporativism and politicisation.
ER  -

KOSAŘ, David, Katarína ŠIPULOVÁ and Ondřej KADLEC. The Case for Judicial Councils as Fourth-Branch Institutions. \textit{European constitutional law review}. Cambridge: Cambridge Univ. Press, 2024, vol.~20, No~1, p.~82-119. ISSN~1574-0196. Available from: https://dx.doi.org/10.1017/S1574019624000038.

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