Judicial Autonomy as Tempering Power

This paper introduces judicial autonomy as a distinct concept in the study of constitutional design and the separation of powers. Unlike judicial independence, which typically describes protection of judges from external interferences, internal pressures, as well as their ideational, decisional freedom, judicial autonomy captures the distribution and concentration of authority both within the judiciary and in relation to other branches of government. It operates horizontally—between the judiciary and other state organs—and vertically—within judicial hierarchies. Judicial autonomy functions as a tempering power in the separation of powers, shaping how judicial authority is exercised and constrained by the number of veto players controlling the de facto functioning of courts and prosecutors. The paper draws on critical works of Voigt, Gutmann, Pozas-Loyo, Ríos-Figueroa and many others who demonstrate how formal guarantees often fail to translate into practice due to informal practices, organizational culture, or internal hierarchies. By focusing on the concentration, centralization, and internal distribution of powers, judicial autonomy provides a framework for understanding when and why independence is realized—or undermined. The empirical part of the paper concentrates on two key actors, courts and prosecutorial offices. The paper develops a methodology to measure and study judicial autonomy across these horizontal and vertical dimensions and applies it comparatively to Germany, Italy, Slovakia, and Czechia. The analysis of courts and prosecutorial offices illustrates how organizational design, internal hierarchies, and allocation of decision-making authority shape the capacity of judicial institutions to act independently. By conceptualizing and operationalizing judicial autonomy, the paper provides a more nuanced understanding of the interplay between formal rules, institutional design, and the actual exercise of judicial power, offering insights into the structural and cultural factors that mediate judicial performance in European systems.