Abstract
This Part recognises that, if the inherent limits of the judicial function are to be complied with, more is required than the goodwill of judges. Even where only very few of judges are tempted to depart from those limits, whether through corruption, incompetence or incapacity, the structural consequences can be severe – particularly given the dependence of the function upon reputation of the institution. A range of active mechanisms are required to motivate the judge to adhere to the requisite standards and to perform the judicial function with excellence. These processes help to ensure the vitality of, and adherence to, the principles of method and impartiality, and – just as critically – help maintain the broad reputation for such fidelity.
This Chapter, the first of Part V, develops a range of principles that deals with the issues of compliance with method and the attainment of excellence in the performance of function. In doing so, it reframes much of the extensive yet largely fragmented literature described by such terms as ‘judicial accountability’, ‘judicial responsibility’ and ‘judicial ethics’ as part of a synthesised whole. It argues that, ultimately, the purpose of various mechanisms of ‘judicial accountability’ is the active and demonstrable promotion of adherence to the higher order principles of contemporary judging. Judicial accountability, therefore, takes on a twofold nature, promoting the judicial function by maintaining both the actuality of, and reputation for, integrity. These ‘internal’ and ‘external’ elements of accountability respond to different aspects of the concept, and justify different mechanisms. The internal ‘subjective’ or ‘personal’ aspect of judicial accountability is directed towards the individual judge, developing a personal and professional imperative to actually ‘do the right thing’. In contrast, the external ‘objective’ or ‘structural’ aspect of judicial accountability is directed to the institutional reputation for integrity, utilising public structures to maintain institutional legitimacy.
This instrumental conception of judicial accountability through this analysis of basic principles reveals its inherent limitations. Its functional nature means that while every mechanism may directly promote either internal or external aspects of judicial accountability, it must ultimately be assessed by reference to its impact on the performance of the judicial function. Accountability does not operate for its own end, and its instrumental nature requires a critical assessment of the ‘costs’ involved in the operation of accountability mechanisms (including the impact on competing values, time, and financial considerations). This Chapter argues that, ultimately, well-designed accountability mechanisms support judges, and drive them towards a responsive excellence.
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Notes
- 1.
For example, Cappelletti quotes an ancient Greek democrat who proclaimed that: ‘in our city no one of those who, in any way, exercises a public function is exempt from the duty to be accountable for his action’: Cappelletti (1989), p. 65. Similarly, Jayawickrama quotes Edmund Burke’s observation that ‘[a]ll persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust and that they are to account for their conduct in that trust’: Jayawickrama (2002b), p. 1091.
- 2.
Mahoney (2008), p. 320.
- 3.
- 4.
- 5.
Handsley (2001b), p. 181.
- 6.
Spigelman (2002), p. 18.
- 7.
Geyh (2006), p. 912.
- 8.
Drummond (2001a), pp. 304–5.
- 9.
The American Bar Association notes that ‘the phrase “judicial accountability” is subject to misuse... [and] … can be employed... [to]... obliterate judicial independence and the rule of law to reach results that are popular’: American Bar Association (2003), p. 15.
- 10.
Cappelletti (1989), p. 58.
- 11.
Seidman observes that it is a subject on which ‘almost everyone is of two minds’: Seidman (1988), p. 1571. This controversial nature is evident in the extraordinary cautionary tale of Riddel, Hausegger and Hennigar who were forced to twice abandon well-conceived empirical studies into judicial performance evaluation following a sustained outcry and refusal to cooperate from both the judiciary and the profession: Riddel et al. (2012). See also: McIntyre (2014), p. 901.
- 12.
Bandes (2006), p. 947.
- 13.
Handsley (2001a), p. 62.
- 14.
Cappelletti (1989), p. 60.
- 15.
Ibid., pp. 59–60.
- 16.
As Handsley notes, this objective is largely left unexpressed in the literature: Handsley (2001a), pp. 62–3.
- 17.
As Geyh notes, attacks on judges ‘have come and gone at generational intervals’: Geyh (2006), p. 911.
- 18.
- 19.
- 20.
In discussing this point, Cappelletti quotes from Professor Merryman, who argues: ‘Judges exercise power. With power comes responsibility. In a rationally organized society there will be a proportion between the two. The question of judicial responsibility accordingly becomes more or less significant, depending on the power of the judge in question’: Cappelletti (1983), p. 4.
- 21.
I borrow here the classification system developed by Le Sueur (2004), p. 75.
- 22.
- 23.
As Beatson observes, some writers ‘consider that a judge cannot be both independent and externally accountable’: Beatson (2008), p. 14.
- 24.
Le Sueur (2004), p. 76. Le Sueur argues that, like Molière’s Monsieur Jourdain who talked prose without knowing it, to the re-conceptualists the judiciary has long had accountability practices without explicitly labelling them as such.
- 25.
See Denham (2001), p. 49.
- 26.
Handsley (2001b), p. 190.
- 27.
- 28.
See Denham (2001), p. 51.
- 29.
Contini and Mohr (2007), p. 30.
- 30.
Many of these arguments are advanced by ‘counter-radicals’, who resist and attack proposed reforms: Handsley (2001a), Spigelman (2002), Drummond (2001a, 2001b). However, as such counter-radicals tend to collapse back to one of the earlier positions I do not label them as a distinct school of thought.
- 31.
Bandes (2006).
- 32.
Geyh (2006), p. 916.
- 33.
Gleeson (1995), p. 121.
- 34.
Bandes (2006), p. 947.
- 35.
See Le Sueur (2004), pp. 80–8.
- 36.
That third party may be, for example, the legislative or executive, society at large, the disputants or the judicial institution itself.
- 37.
Le Sueur (2004), p. 73.
- 38.
Geyh (2006), p. 914.
- 39.
- 40.
- 41.
Le Sueur (2004), p. 73.
- 42.
Pimentel (2009), p. 14.
- 43.
Handsley (2001b), p. 181.
- 44.
Seidman (1988), p. 1574 (emphasis added).
- 45.
As Seidman observes, the two meanings of the term are interrelated, so that one way people are made accountable is ‘by forcing them to give an account of themselves’: ibid.
- 46.
This model is, for example, utilised in the financial world to ensure that proper ‘accounting’ processes are followed.
- 47.
This is particularly apparent when contrasted with the unfettered supervisorial power of traditional ‘command-and-control’.
- 48.
Handsley (2001a), p. 68.
- 49.
- 50.
Handsley (2001b), p. 218.
- 51.
As Handsley argues, accountability is directed to ensuring that the judge is ‘doing the right thing’: Handsley (2001b), p. 181.
- 52.
- 53.
Disputants are unlikely to consider themselves bound by a decision that fundamentally abandons the inherent limits of the judicial paradigm.
- 54.
While an institution sustained by state force may be able to exercise a degree of social control, such a ‘might-based’ institution abandons any pretension of ‘judicial’ resolution.
- 55.
This ongoing conversation takes place between judges, the profession, academics, and the public at large.
- 56.
In using this division I build upon and expand the division of Pimentel (2009), pp. 16–7.
- 57.
Ibid., p. 16.
- 58.
As Pimentel notes, such internalised accountability emboldens the judge to resist the self-interested action to instead act with commitment to the highest principles of judicial decision-making: Pimentel (2009), pp. 22–3.
- 59.
- 60.
Critically, such habitulisation promotes the flourishing of that desired attribute: Soeharno (2009), p. 52.
- 61.
Pimentel (2009), p. 25.
- 62.
As Pimentel argues we should expect judges to act with integrity ‘not merely because they fear detection and punishment... but because it is the right thing to do’: Pimentel (2009) pp. 16–7.
- 63.
Ibid., p. 17.
- 64.
R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256, 259 (Lord Hewart). For discussion of this oft cited aphorism: see Spigelman (2000a), pp. 290–2.
- 65.
As Jayawickrama observes, ‘the real source of judicial power is the public acceptance of the moral authority and integrity of the judiciary’: Jayawickrama (2002a), p. 563.
- 66.
Canadian Judicial Council, Commentaries on Judicial Conduct (1991), p. 55.
- 67.
- 68.
Handsley (2001b), p. 184.
- 69.
As Bandes notes, ‘public reaction to decisions is an extremely poor measure of whether those decisions follow or deserve censure’: Bandes (2006), p. 954.
- 70.
Drummond (2001a), p. 321.
- 71.
Mann v O’Neil (1996–7) 191 CLR 204, 245 (Gummow J).
- 72.
- 73.
Canadian Judicial Council, Commentaries on Judicial Conduct (1991), p. 55.
- 74.
As Megarry observes, perhaps the most important person in any courtroom is ‘the litigant who is going to lose’: Megarry (1978), p. 410.
- 75.
As McLelland concludes, the ‘maintenance of public confidence in the judiciary requires that a judge be liable to removal for misconduct of a kind inconsistent with his holding judicial office’: McLelland (1990), p. 393.
- 76.
Pimentel (2009), p. 16.
- 77.
See Fordham (1998), p. 158.
- 78.
See American Bar Association, Model Code of Judicial Conduct (2011); Courts and Tribunal Judiciary (UK), Guide to Judicial Conduct (March 2018); Canadian Judicial Council, Ethical Principles for Judges (1998); Council of Chief Justices of Australia and New Zealand, Guide to Judicial Conduct (3rd ed, Australasian Institute of Judicial Administration, 2017).
For critique of such codes: see Marshall (1995), p. 3.
- 79.
Lafon (1996) gives an intriguing insight by reference to an ancient form of accountability utilised under the French Ancien Régime. ‘In a speech given twice a year (the Mercuriales), the first president of courts of parliament or the head of the Prosecution Department would proclaim the virtues that a magistrate should possess under the Ancien Régime. They would portray an ideal figure even though they were fully aware that they were addressing mere mortals. In this fashion, they intended to remind both judges and prosecutors of their proper roles’: p. 22.
- 80.
For example, an over-reliance on external mechanisms may promote a ‘check-list’ culture whereby judges disclaim personal responsibility by deferring to such mechanisms.
- 81.
For example, a maladjusted accountability mechanisms may create feedback loops that improperly influence the judge to decide in a ‘safe’ manner: see Handsley (2001b), p. 182.
- 82.
Leeson v General Medical Council (1889) 59 LJ Ch NS 233, 241.
- 83.
Gallagher v Durack (1983) 152 CLR 238, 243. As the Court noted in that case, the ‘authority of the law rests on public confidence’.
- 84.
O’Neil (2002), p. 6.
- 85.
- 86.
Kirby (2003), p. 44.
- 87.
See Shetreet (1985), p. 593.
- 88.
Shetreet (1987), p. 4.
- 89.
Contini and Mohr (2007), p. 28.
- 90.
Russell (2001), p 2.
- 91.
Nicholson (1993), p. 414.
- 92.
Contini and Mohr (2007), p. 28.
- 93.
See Mason (2005), p. 131.
- 94.
White (2002), p. 1060. As White notes, impartiality does not demand that the judge is removed from ‘accountability’, but rather removed from accountability to the wrong source or to the wrong end: p. 1059.
- 95.
Sands et al. (2005), p. 250.
- 96.
- 97.
- 98.
As Shetreet notes, striking this balance between the potentially conflicting conceptions and mechanisms can be a particularly difficult task: Shetreet (1987), p. 7.
- 99.
Ibid., p. 4. For discussion of the factors in this balance: see Pimentel (2009), pp. 27–33.
- 100.
Wallace (1998), p. 344.
- 101.
For example, a strong conflict between accountability and impartiality will indicate that the mechanism is flawed and is not promoting its functional objectives.
- 102.
This burden of responsibility is heavy enough with regards to dispute-resolution and can become overbearing for social governance.
- 103.
Arguably, even disciplinary measures can protect the judge, securing them in the knowledge that should they fail or become seriously impaired, the potential for them causing substantial damage to society is limited.
- 104.
Personal conversation of the author with Professor the Honourable Justice Paul Finn, then a Judge of the Federal Court of Australia, in Cambridge, May 2011.
- 105.
As Brennan (1979) notes, the ‘modern judiciary, hearing the divine warning “Judge not that ye be not judged” not only accept the inevitability of judgment upon them; they welcome it as the essential stimulus to discharging their duty and as the essential protection of the office which they hold’: p. 767.
- 106.
As Handsley (2001b) notes, the challenges of manifestation would disappear if we could be confident that accountability mechanisms could be utilised ‘only when they were deserved’: p. 189.
- 107.
Harris (2008), p. 486.
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McIntyre, J. (2019). Principles of Judicial Integrity and Accountability. In: The Judicial Function. Springer, Singapore. https://doi.org/10.1007/978-981-32-9115-7_13
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