Judicial Independence as Key Ingredient of Freedom

I’m in Beirut, where I’ve been meeting with Arabic newspaper and book publishers for Cato’s Arabic publishing venture and where I led a seminar today at the American University of Beirut.

One hot topic of discussion here has been the ongoing protests in Egypt over the independence of the judiciary. Democracy is often identified only with elections, but a lasting democracy has to involve a lot more than the ballot box. A liberal democracy isn’t just about free elections, but about the constitutional context – securing the rights of the people to freedom under law, rather than subjugation to arbitrary power – within which free elections serve an important but limited role.

As the Egyptian demonstrators have realized, free elections are not possible without an independent judiciary to ensure that the law is followed. That very same independent judiciary, in turn, is a central feature of the predictability of law that is necessary for a social order to flourish. Mancur Olson pointed out in 1993 in the American Political Science Review that ”the same court system, independent judiciary, and respect for law and individual rights that are needed for a lasting democracy are also required for security of property and contract rights.”

Let’s hope that as the Egyptians struggle for an independent judiciary that can monitor and check the executive power, we in the U.S. manage to keep our judiciary from submitting to domination by an executive branch that is hell-bent on sacrificing the separation of powers in pursuit of its claims of unlimited power. As James Madison noted in Federalist 78, the independence of the judiciary should be regarded as “the citadel of the public justice and the public security.”