Judicial Independence – Moral Autonomy – Professionalism

Abstract

In the present study, the author argues that a necessary condition for the proper, thus professional, exercise of the judicial profession is the independence of a judge which is
conditioned by his or her moral autonomy. In other words, moral autonomy is conditio sine qua non of independence of a judge and thus is also a necessary condition for the professional exercise of the judicial profession. Therefore, the moral autonomy of a judge is a desirable and indispensable feature of a person exercising the judicial profession, as without having moral autonomy the independence of a judge is impossible at all, regardless of the number of systemic safeguards provided in the legal order. Such safeguards are certainly necessary, however, on the one hand, they do not per se ensure judicial independence and, on the other hand, they do not have the power to make that judge’s independence suddenly disappear due to any interference with them. In the context of judicial independence, the concept of moral autonomy has not been applied to date. The jurisprudence and literature on the subject indicate types, components, or guarantees of the judge’s independence, as well as the threats to it, however, there is no concept that encompasses the whole issue and that conditions the said independence. According to the author, the concept of moral autonomy is such a notion.