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The Myth of Secular Judicial Independence

In principle, the concept of judicial independence is a Christian concept. Without a God to whom the judge is answerable and in whose place the judge rules, there is nothing to stop the judge from simply following the ruling elite’s direction. You could argue that in a secular system popular election would provide the potential for some independence. However, notice how the ruling elite complains about all the “problems” surrounding popular election – the people are ignorant, campaign contributions corrupt the judges, it’s “unseemly.” These are the ostensible reasons for prohibiting the people from choosing their own judges, but the real reason is that when the people choose their own judges, the unions of legal professionals (bar associations) and the ruling judges and politicians have little or no control over who becomes a judge, and this they cannot tolerate.

The concept of judicial independence is critical to a biblical system. However, from what are the judges independent? Moses instructed: “And I charged your judges at that time, saying, ‘Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him. Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God’s: and the cause that is too hard for you, bring it unto me, and I will hear it.'” Deuteronomy 1:16-7. The judges would have to be dependent upon God and His law, not independent, in order to properly judge. There’s only one other alternative – dependence upon man. It might be the ruling elite, who can pay them with money or with advancement in the political system. Or it might be the judge himself. If the judge has no god to whom he’s loyal, and the judge doesn’t care about the ruling elite, by what standard does the judge issue rulings? What if the judge is loyal to another religion, another god? How can such a judge rule over a Christian people, who worship the Christian God?

You might argue that the judge should rule according to the law, no matter what the judge’s personal beliefs, but this is a naive view. Interpretation is the constant focus of study in all law schools. Interpretation is the lever used by judges to change the law. A judge’s personal beliefs, religious beliefs even, will inform that judge as to how to interpret laws.  There is no neutrality.

In his 17th century magnum opus about the biblical concept of king and civil government and the people, Lex Rex.  When he refers to inferior judges, he’s speaking of human judges, who are inferior to the true & ultimateJudge, God Himself.  Samuel Rutherford wrote:

“Inferior judges appointed by king Jehoshaphat have this place, 2 Chron. xix. 6, “The king said to the judges, Take heed what ye do, כילא†לאדם†תשפטו†כי†ליחוה†, for ye judge not for man, but for the Lord.” Then, they were deputies in the place of the Lord, and not the king’s deputies in the formal and official acts of judging. Ver. 7, “Wherefore, now, let the fear of the Lord be upon you, take heed and do it; for there is no iniquity with the Lord our God, nor respect of persons, or taking of gifts.

“Hence I argue, 1. If the Holy Ghost, in this good king, forbid inferior judges, wresting of judgment, respecting of persons, and taking of gifts, because the judgment is the Lord’s, and if the Lord himself were on the bench, he would not respect persons, nor take gifts, then he presumeth, that inferior judges are in the stead and place of Jehovah, and that when these inferior judges should take gifts, they make, as it were, the Lord, whose place they represent, to take gifts, and to do iniquity, and to respect persons; but that the Holy Lord cannot do. 2. If the inferior judges, in the act of judging, were the vicars and deputies of king Jehoshaphat, he would have said, judge righteous judgment. Why? For the judgment is mine, and if I, the king, were on the bench, I would not respect persons, nor take gifts; and you judge for me, the Supreme Judge, as my deputies. But the king saith, They judge not for man, but for the Lord. 3. If, by this, they were not God’s immediate vicars, but the vicars and deputies of the king, then, being mere servants, the king might command them to pronounce such a sentence, and not such a sentence as I may command my servant and deputy, in so far as he is a servant and deputy, to say this, and say not that; but the king cannot limit the conscience of the inferior judge, because the judgment is not the king’s, but the Lord’s. 4. The king cannot command any other to do that as king, for the doing whereof he hath no power from God himself; but the king hath no power from God to pronounce what sentence he pleaseth, because the judgment is not his own but God’s. And though inferior judges be sent of the king, and appointed by him to be judges, and so have their external call from God’s deputy the king, yet, because judging is an act of conscience, as one man’s conscience cannot properly be a deputy for another man’s conscience, so neither can an inferior judge, as a judge, be a deputy for a king. Therefore, the inferior judges have designation to their office from the king; but if they have from the king that they are judges, and be not God’s deputies, but the king’s, they could not be commanded to execute judgment for God, but for the king: (Deut. i. 17,) Moses appointed judges, but not as his deputies to judge and give sentence, as subordinate to him; for the judgment (saith he) is the Lord’s, not mine. 5. If all the inferior judges in Israel were but the deputies of the king, and not immediately subordinate to God as his deputies, then could neither inferior judges be admonished nor condemned in God’s word for unjust judgment, because their sentence should be neither righteous nor unrighteous judgment, but in so far as the king should approve it or disapprove it; . . . .”

Rutherford wrote to oppose the statist position of many that the judge is the mere arm of the king who appoints the judge. Such a position denies the judge’s duty to fear God not man. Thereby, the judge acts independently of man and king, but not of God. Notice that many of the most vociferous advocates of judicial independence today are secular humanist lawyers, judges, and politicians. The politicians love it when a judge defies God and the people and decides to rule in favor of some progressive cause. The people criticize the judge, but the politicians, pretending neutrality, call for the critics’ heads for opposing “judicial independence.” The judge’s ruling may defy God’s law, common sense, and be perfectly in line with the appointing public official’s viewpoint of what the law should be, yet instead of calling it what it is – sycophancy by the judge toward the political masters who appointed the judge – they call it judicial independence. This is a perversion of the doctrine of judicial independence. In defying God’s law and agreeing with the partisan political masters, the judge has advanced his political prospects within the system. He has acted loyally for his appointing masters and defied God and the people; thus in the name of judicial independence, the judge has denied judicial independence.