The Integrity of the Judge

A Philosophical Inquiry

Jonathan Soeharno

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317027393
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

There is no consensus among legal scholars on the meaning of judicial integrity, nor has legal scholarship yet seen a well-articulated discussion about the normative concept of judicial integrity. This book makes an analysis of the discourses on judicial integrity in judiciaries in both established and developing democracies. In the former, the rule of law is well-developed and trust in the judges is high, yet new demands for accountability emerge. In the latter, traditional integrity problems such as fraud and corruption take centre stage. The author argues that integrity must be understood both as professional virtue -discussed here through the lens of virtue ethical theory - and as the safeguarding of public trust, as understood through institutional theory. The Integrity of the Judge is a significant new work for legal theorists and philosophers, as well as scholars of legal and judicial ethics.

Chapter 1
Is Judicial Integrity a Norm?

1. Introduction

This chapter aims at providing an inventory of the discourse on the integrity of judges1 and at providing an analysis of the role of integrity as norm in the context of a democratic rule of law.

In section 2 I explore the scope of judicial integrity: its violations, its safeguarding and the developments which explain its upsurge. First, the debates about violations of judicial integrity are outlined. I will look at both established democracies, where ‘traditional’ integrity violations such as fraud or corruption are practically absent, and developing democracies, where several forms of judicial corruption infringe the rule of law. I will then look at safeguarding activity with respect to judicial integrity on both international and national levels. Lastly, I will look at factors that contribute to the upsurge of the concept of integrity. Why is it a buzz word now, but was hardly mentioned a few decades ago?

In section 3 the concept of integrity is placed in a broader normative framework of rule of law and democracy. The question is asked if integrity can be reduced to this normative framework or if it is a norm in its own right. I will defend the latter position. Integrity is a norm that serves the legitimacy of public functions. I conclude that there is a need for a philosophical theory of what integrity as norm entails.

2. The Rise of the Concept of the Integrity of the Judge

2.1 Judges on Trial: Debates on Judicial Integrity

Although there is hardly a consensus about the nature of the concept of integrity or about its practice, this does not seem to hinder people from complaining about violations of judicial integrity. Let us therefore look at some discussions in which explicit reference to judicial integrity is made. The selection below is by no means exhaustive and the question whether these discussions have actually to do with judicial integrity will not be asked at this point. The purpose is to give the reader an impression of some of the issues that are often referred to as a violation of judicial integrity.

I distinguish between established democracies and developing democracies. In established democracies there are debates about miscarriages of justice, the ancillary functions of judges, corporate bias, misbehaviour of judges, the independence of judges and neo-managerialism within the judicial organization. In developing democracies there is also the difficult issue of corruption: bribery, political interference and organizational corruption within judicial organizations have a grave impact on the rule of law.

2.1.1 Integrity issues in established democracies

‘Established democracies’ and ‘developing democracies’ are types,2 whereby ‘established’ and ‘developing’ refer to the quality of public institutions. In established democracies, traditional integrity problems such as fraud and corruption are practically absent and trust in the judiciary is relatively high. Developing democracies are democracies with developing institutions. Here traditional integrity problems take centre stage in the discourse on integrity. Of course, as these are mere types, exceptions confirm the rule.

Miscarriages of justice Due to higher media scrutiny, investigative journalism and new evidence science such as DNA analysis, judicial miscarriages are more likely to be detected. These miscarriages have a severe impact on the trust in the judiciary.

For example, in two high profile cases in the Netherlands, a case concerning the murder of a 23-year-old stewardess in Putten in 19943 and a case concerning the murder and rape of a 10-year-old girl and the sexual abuse of an 11-year-old boy in a public park in Schiedam in 2000,4 the suspects were convicted of murder in all instances up to the highest appeal court, the Hoge Raad.5 During both cases it was journalists who questioned the judgments and in particular the evidence on which the judgments were based. Their doubts were dismissed at the time but in the end the journalists proved to be right and the cases still make headlines today. The problem of miscarriages of justice is not confined to the Netherlands. For instance, in England a number of miscarriages, the Birmingham Six, Guildford Four and the Maguire Seven, caused a great stir.6 It is fair but unfortunate to say that every country has its own landmark miscarriages.

Increasing interest in the personalities of judges and their ancillary functions In common law countries, interest in the personality of judges is traditionally high, which gives rise to intimate curiosities. These curiosities are nurtured by the notably personalized completion of the judicial role. Not only does the style of judgments bear the touch of the judge’s individuality,7 but also the performance at trial is unique to every single judge. It must be observed that these are not eo ipso benign to the trust that the parties or the public have in the judiciary.8 Although in the civil law tradition the personality of judges is traditionally seen as subsidiary to their office,9 there is an increasing interest in their personal profile that is concerned with their ancillary functions.10 Sometimes it is initiated by a group of perturbed citizens who publish a ‘revealing’ account.11 Some judiciaries publish their own list.12

Extra-judicial activities are often seen as a societal responsibility. For example, in common law countries judges are frequently called upon to chair Royal Commissions, Committees or ‘independent’ inquiries.13 This is interesting in respect of the separation of powers, for in this capacity they cannot always avoid giving overt opinions on the investigated, who are sometimes politicians.14 These opinions may arouse suspicions of bias when they return to act as judges.15 Interesting in respect of natural justice are cases in which personal impartiality is challenged on an objective level, such as in the Pinochet case, where Lord Hoffmann failed to declare his links with Amnesty International. This led to the unprecedented setting aside of a judgment of the House of Lords.16

Another issue concerning extra-judicial activities is membership of the Freemasonry or like organizations. The secrecy of these organizations has been viewed in many countries as incompatible with the trust that one needs to have in the judges. For example, after the ‘clean hands’ operation in Italy, all memberships of secretive organizations were forbidden for judges.17

Corporate bias Corporate bias concerns worries about the over- or under-representation on the basis of gender, minority, social class, region, political preference or religious background.

In some countries, there is a serious lack of women in the judiciary. In many countries, this has led to active policy. For example, vacancies in Germany state that with equal qualifications women are privileged.18 Sometimes there is no under-representation in the judiciary as a whole, but merely at the higher court levels, such as in the Netherlands.19

Another corporate bias issue concerns minority groups. For example, in France there are questions about the under-representation of Muslims. Even though they comprise about 8 per cent of the population, they have been for a long time ‘practically invisible’ in the judiciary.20 In Canada under-representation has led to affirmative action whereby a policy of active encouragement rather than quotas was used.21

Sometimes political bias can be experienced as a problem. In France there are debates about the role of judges in political scandals22 and in the United States political preference of judges form a constant point of discussion.23

Misbehaviour of judges Every now and then there are incidents involving the misbehaviour of judges in private or in court. A rather horrific example is that of a district court judge for the Oklahoma 10th circuit (USA). In July 2006 he was accused of using a penis pump, while hearing a murder trial, after a ‘wooshing’ sound was heard by members of the jury. Police found semen on the chair and floor behind the bench and on his robe. The jury found him guilty and recommended a one-year imprisonment, which was raised to four years by the presiding judge.24

Debates may also concern the behaviour of the judge in private. A Belgian judge, KA, who frequented sadomasochistic (SM) clubs and participated in SM practices with his wife and others, was found guilty in 1997 of assault which led to bodily harm and of incitement to immorality and prostitution, as he suggested to the management of an SM club that his wife be employed there as a ‘slave’ to indulge in extremely violent practices.25 His defence, that it was a private matter and consensual, was rejected up to the European Court of Human Rights due to the severe gravity of the acts. The Court remarked for example that KA, as a judge, must have been aware of the principle that the victim’s consent had no bearing on the unlawfulness of the acts committed or on the perpetrator’s guilt.26

Such misbehaviour raises questions as to a disciplinary system for judges. Due to judicial independence, supervision and discipline are – to a large extent – internal matters. The public simply has to trust that judges behave well. This situation is justified by strict selection procedures or by a tradition where one has to have a well-established reputation prior to becoming a judge.27 A growing question is, however, whether this situation is fitting in an open democracy. Can suspicions be dealt with adequately when things go wrong?

Neo-managerialism Recent reforms in the judiciary have put more emphasis on the issue of efficiency. This is seen as part of rendering external accountability: to heighten accountabi...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• Preface
• Acknowledgements
• Abbreviations
• 1 Is Judicial Integrity a Norm?
• 2 A Theory of Professional Integrity
• 3 Integrity in Judicial Decision-Making
• 4 Integrity in the Conduct of Judges
• 5 Safeguarding Judicial Integrity – Parameters
• Conclusion The Integrity of the Judge: A Philosophical Inquiry
• References
• Index