A behavioural approach to judicial independence

This article develops a behavioural approach to the principle of judicial independence. It argues that implementing the proposed approach can help to safeguard judicial independence more effectively. It addresses the question of what a behaviour-related concept of judicial independence should look like and what state obligations arise from this. It takes into account empirical findings which were not yet available when the legal principle was initially shaped by constitutional and regional human rights jurisprudence. First, the article outlines certain basic premises of a behavioural concept of judicial independence. It then takes a closer look at the factors that determine the behaviour of judges and of such third actors that might attempt to unduly influence judges. In addition, the article engages with the objective of the principle of judicial independence to inspire trust in the judiciary and outlines potential behavioural effects relevant for this trust dimension. Finally, it discusses whether certain behavioural effects that can shape judicial decision-making should be regarded as normatively undesirable in the context of judicial independence.