Independent institutions including courts, central banks and other supervisory agencies have been at the centre of controversy and contestation in contemporary democracies. This is not least due to the fact that, complexities of our modern societies along with the transnationalization of social conflicts have come to reconstitute the delicate balance between expert authority and democratic control. While it is generally agreed that independent institutions are necessary, if not constitutive of genuine democratic regimes, these institutions also place severe limits on democratic politics. These contradictions have only become more prominent in the light of rising authoritarian populism and democratic backsliding in different parts of the world.
This formed the overall theme of the workshop broadly titled ‘Independence in Contemporary Democracies’ organized as part of the interdisciplinary research group on ‘Independence and Democracy in the European Union: A Historical and Socio-legal Approach’ led by Antoine Vauchez, in cooperation with Armin von Bogdandy and Stefan Vogenauer. The workshop brought together eight speakers and seventeen engaged listeners, from not only different jurisdictions, but also different areas of expertise to unpack the concept of independent and what it means for democracy and governance today. Given that the speakers were drawn from very different disciplinary backgrounds, including, law, history, political science and economics, the discussion provided for wide ranging and sometimes remarkably contrasting notions and institutional frameworks of what independence is, who should be granted it and how it should be exercised. In this sense, the collaboration between the Max Planck Institute for Comparative Public Law and International law and the Max Planck Institute for Legal History and Legal Theory provided a unique opportunity for institutional cooperation, but also cross methodological explorations.
The role of independent central banks and constitutional courts occupied much of the discussions in the two days of the workshop. Admittedly, these two institutions have not only shown the tremendous extent of their powers, but also have not shied away from exercising them. Consequently, the backlash against them have been the most severe. Many of the presentations illustrated how central banks have been accused of going beyond their mandates, deciding questions of fiscal policy all while maintain a veil of monetary neutrality. Courts on the other hand, have been accused of partisanship, double standards and even an abdication of accountability checks. Is the concept of independence then, still useful? Should scholarship and practice reorient themselves from independence to perhaps, interdependence? Can the law play a role in rebalancing the scales between independence and democratic accountability? There are no easy answers to these questions. What is important though, is that these questions are raised and further problematized.
What centrally emerged from the several contributions is that independence is an essentially contested concept and bears no straightforward definition. Instead, there is not only ‘varieties of independence’ but also ideas and practices of independent institutions is contextually dependent and relationally structured. The question then is not so much whether an institution is independent or not, but how such independence is negotiated, legitimized and made accountable through the political, social and legal processes. Who gets to decide which institutions are independent, what the limits of that independence are, against which actors is such independence granted and finally, for what purpose(s) are institutions made independent in the first place. Each of these questions demand careful analysis, deeper interrogation and perhaps even a complete re-think of conventional wisdom.
The workshop showed that the tools of historical research and biographical experience, data mining, political economy and legal doctrinal constructivism can all be brought meaningfully together to ask different questions about the very same problem. The concept of independence and independent institutions are here to stay—it is unreasonable to suggest that democracies will be able to fulfil their functions without these institutions. The central task that this workshop set in motion was to explore how the conceptual, historical and legal boundaries of independence needs to be revisited in the light of greater democratic demands.
