The autonomy of legal institutions is put on the most severe test when they are under attack by other organs of the state. The article discusses the Western legal tradition from an institutional perspective and the concepts of ‘institutions’, ‘path dependence’ and ‘rule of law’. Under this perspective, legal institutions have an autonomous development with characteristics that must be explained by their evolutionary origins. The article seeks to demonstrate that institutional theory deserves closer attention when studying law and political power and to place more the refined notions of the Western legal tradition and the Rule of law from legal research into the theoretical approach of institutional theory. Based on the example of judicial independence in Nazi Germany it seeks to test the explanatory power of institutional theory to legal phenomena.
This is a post-peer-review, pre-copyedit version of an article published in Hague Journal on the Rule of Law. The final authenticated version is available online at: http://dx.doi.org/10.1007/s40803-018-0071-8