Autonomy and heteronomy of the judiciary - a historical approach

Abstract

In the paper, I will discuss about historical dimensions of heteronomy and autonomy of the judiciary. As an introduction, historical narratives (histories) of main legal actors (the legislator, the judiciary, and legal scholarship) will be discussed. In Section 2 characteristics of “pre modern” conflict resolution and the legitimacy of judicial decision making will be studied. I will argue that during the era of non state law and in circumstances without an authoritative judiciary (like in rural areas in the Nordic Countries) the participation of the conflicting parties and the local community played an important role for guaranteeing legitimacy and acceptance of conflict resolution and judicial decision making in local courts. In addition, various - and historically determined - justifications of lay participation will be analyzed. Hence, questions of public / democratic control over the judiciary, and those of social background of judges will be enlightened. In Section 3 the interplay between and interdependence of various legal actors will be in focus. I will argue for the importance of historical-comparative studies on legal scholarship, through which one can better understand variations in functions and roles of the judiciary, and particularities of judicial argumentation in certain times and geographical/ cultural areas, as well.