A case for the judicial enforcement of principles

Around the world, autocrats use law to undermine constitutionalism, subordinating judiciaries while maintaining a facade of legality. Judicial independence—vital to constitutional governance—is challenging to define, often balancing institutional autonomy with adherence to legal norms. When laws threaten judicial independence, judges must resort to higher principles embedded in constitutions and transnational commitments to assess these laws critically. This chapter argues that judicial independence requires refusing to enforce laws designed to curtail it. Judges, bound by principles rather than merely statutes, must ensure coherence within the legal order by relying on higher norms. Such principles, drawn from constitutions, treaties, or established human rights frameworks, provide a counterweight to political overreach. In autocratic times, courts must not passively follow laws that compromise democratic values but instead protect constitutional integrity. True judicial independence is achieved through principled resistance to authoritarian encroachments while remaining within the broader legal framework.