An additional wrinkle in the consideration of judicial independence as a
scheme for implementing RL is the issue of judicial philosophy. In a
contribution to a recent anthology on judicial independence, Lewis Kornhauser makes the wise point that judicial independence is seldom valued for its own
sake. 137 What we really want to know, in assessing the connection between
judicial performance and RL (and other values), is the judge's normative
theory of adjudication. 138 Does the judge-or, if you prefer the bird's eye
view, the judiciary-pay adequate fidelity to enacted law? 139 Does the judge
follow precedent? 140 Does the judge act assiduously, and on his own initiative,
to protect and promote the rule of law? If the answer to this is yes, then we
might well consider judicial independence as less essential to RL. If, instead,
judges aggrandize to themselves the lawmaking power, thereby replacing RL
values of consistency and (to bring in one of Joseph Raz's requirements) the
value of legislative lawmaking with judicial fiat,141 then we might worry that
judicial independence provides judges with an unacceptably wide domain of
discretion. In such a system, we may prefer a non-independent judiciary, that
is, a judiciary under the influence and even control of the legislative and
executive branches-or, as with the elected judiciary in the American states,
the direct control of the voters. For it is only where these mechanisms are in
place that judges will be obedient to RL