Year: 2025
Type: article
Abstract: Independence is commonly underscored as a key characteristic of courts and the judiciary. The independence of a court refers to its separation from other branches of state power that do not have commanding or supervisory powers over courts. Judicial independence implies the absence of influence by other entities (particularly state authorities) on judicial conduct, running the legal process and outcomes of judicial proceedings. In addition to independence, another important feature is the impartiality of judges, which implies that a judge's must act without prejudice in judicial proceedings. It means that a judge must treat the participants in the process (the plaintiff, the defendant, witnesses) equally, without bias or without favouring any participant. Without diminishing the importance of the independence and impartiality of judges, neutrality is an equally valuable judicial characteristic. Judicial neutrality refers to a judge's attitude toward the positive law. In the legal reasoning process, a judge is obliged to consider the applicable (positive) law as the exclusive reason for deciding and justifying the judicial decision. The institutional role of a court is not to evaluate the substantive validity of the positive law but to apply it to the specific case. Thus, it is not up to a judge to correct the substantive errors of the legislator or another lawmaker. If a judge evaluates the positive law and departs from it due to his/her substantive or moral views, it is not considered legal reasoning. Yet, it does not mean that a judge should ignore the values contained in the positive law but, rather, that a judge must not replace the lawmaker's value judgments with one's own value judgments because the judge's duty is to resolve legal disputes from a legal point of view.
DOI: 10.5937/zrpfn1-57108
Author: Stević Hadži
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: diamond
OpenAlex ID: W4410433958