On The Establishment Of The British And American Principle Of Judicial Independence

The United Kingdom and the United States of America are two representatives of modern Western legal system. The forming and establishment of legal independence are closely related to the long-time legal tradition in Western Society with the evolvement from ideology to political theories, then to regulatory system. The legal independence theory and its system have been adopted for years by most of the countries in the world.The paper first explains the concepts of justice, the power of justice as well as the judicial departments. According to Montesquieu's power decentralization theory, which is widely accepted in Western countries, the nation's power is divided into three parts, and the judicial power is one of it. Judicial power is jurisdiction or the responsibility of court and the judicial departments refer to the courts. Adjudgement is the judgment made by the court to deal with the criminal, civil and administrative cases. The narrow understanding for the concept of judicial power is that it is the power of judgement. Then the paper explains the concept of integrity of legal independence. It is divided into three levels, i.e. the independent judicial power, the independent judicial departments and the independent judges. The three levels have different positions in the concept of legal independence. Independent judicial power is the logic beginning of it and the courts are in the mid level while the udges constitute the ultimate basis of the concept. In order to further understand the concept of legal independence, the paper introduces the forming process of legal independence in England. In 1701, England established the system of lifelong judges and legal salary. It was not until that year, England set up the legal independence system.The paper also introduces the forming of the system in the U.S. from the theory of legal independence before the making of the nation till its practice and then to complete establishment of the system at the early years of the nation. It is the Frenchman Montesquieu who first systematically explained the theory of legal independence and designed the theory of power decentralization. Later Hamilton developed the theory by saying that the courts not only have the independent power of trial but also have the right to verify whether the laws made by the legislative departments conforming to the Constitution. It was not until 1803 when the Federal Supreme Court implemented the right of "jurisdiction review" did the legal independence truly come into reality. After the judicial departments got the legal independence power from the Constitution, they were strengthened and became the independent institutes that can restrict the legislative and administrative departments to some extent. From then on the legal independence turned from theory to reality.The conclusion of the paper points out that the legal independence is different between the England and America in guiding theory of forming, the process and the altitude of the judges towards the system. I hold the point that the egal independence is the basic requirements of the society ruled by law. As the principle of the Constitute, it regulates the relations between the legislative and administrative departments. It will guarantee the fairness of the justice, prevent the outside influence to the judicial process and its sentences and makes the court the last and the most important shield from inhuman administration so that to protect the human rights. Legal independence is a question not only of theory but also of practice. It needs some prerequisites and atmosphere to support it. The historic contribution of legal independence is that it provides the important safeguarding for the modern democratic political system which has the typical characteristic of power decentralization.