Institutional Irresponsability of Judges : Between Independence and Servility

The political conflict that exists between the judiciary and the politicians about their independence and respective responsibilities is a subject of debate not only among jurists but also among economists. The judges want to be independent of the politicians and the politicians want to that the judges shall apply the conceptions of justice for which they have been elected. The underlying problem is simple: who must say the Law: the politicians as the voice of the fraction of voters who have brought them to power or the judges as professional of the Law? It is a conflict of authority, very classic to the remaining, between "bureaucrats" or judges as agents, who should obey, and those who ordered, the politicians as principals. The latter must finally arbitrate, at the extreme, between independent and irresponsible judges and responsible ones under the control of their hierarchy appointed by politicians. The comparison between Europe and the United States is very instructive. The conditions of recruitment and control of the career of these judges are varied and allows us to evaluate this arbitration between independence and servility. To measure and compare the impact of these various way of controlling the judges, we have taken for the United States the number of sentences of death penalty pronounced and for the European States the probability of sanction the magistrates for professional or ethical misconduct