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Regulating Judges
Beyond Independence and Accountability
Edited by
Richard Devlin
Schulich School of Law, Dalhousie University, Canada
Adam Dodek
Faculty of Law, University of Ottawa, Canada
Cheltenham, UK • Northampton, MA, USA


© The editors and contributors severally 2016
All rights reserved. No part of this publication may be reproduced, stored

in a retrieval system or transmitted in any form or by any means, electronic,
mechanical or photocopying, recording, or otherwise without the prior
permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.

William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book

is available from the British Library
Library of Congress Control Number: 2016944291
This book is available electronically in the

Law subject collection
DOI 10.4337/9781786430793
ISBN 978 1 78643 078 6 (cased)

ISBN 978 1 78643 079 3 (eBook)
Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

01

Contents
List of contributorsvii
Foreword by Justice Richard Goldstoneix
Acknowledgementsxi
1 Regulating judges: challenges, controversies and choices 1

Richard Devlin and Adam Dodek
2 The Australian judiciary: resistant to reform? 35
Gabrielle Appleby and Suzanne Le Mire
3 Beyond independence and accountability: balancing judicial
regulation in Brazil 55
Maria Angela Jardim de Santa Cruz Oliveira
4 ‘Fighting words’: regulating judges in Canada 76
Adam Dodek and Richard Devlin
5 Moving target: the regulation of judges in China’s rapidly
evolving legal system 105
Ray Worthy Campbell and Fu Yulin
6 Regulatory reform in Croatia: an uphill battle to enhance
public confidence 128
Dubravka Akšamović
7 Judicial policy in England and Wales: a new regulatory space
Graham Gee 145
8 Just ‘the mouth’ of statutory law or more? The theory and
practice of judicial regulation in Germany 163
Christian Wolf and Fabienne Klass
9 Balancing the scales of justice in India: from parliamentary
supremacy to judicial supremacy and back? 189
Tony George Puthucherril
10 Reluctant reformers? Formalizing judicial regulation in
Ireland209
David Fennelly


vi Regulating judges
11 Decentralized regulation: reconciling inter-branch tensions in

Israel227
Limor Zer-Gutman
12 Clash of visions: regulating judges and prosecutors in Italy 245
Marco Fabri
13 Regulating judges, Japanese-style: the prevalence of informal
mechanisms262
Kay-Wah Chan
14 A judicial code of ethics: regulating judges and restoring
public confidence in Malaysia 279
Jaclyn L Neo and Helena Whalen-Bridge
15 Discipline and modernize: regulating New Zealand judges 293
Tim Dare
16 The Portuguese judiciary amid old and new crises 313
Fernando Dias Simões
17 An internal code of ethics: regulating judges in Singapore 331
Helena Whalen-Bridge and Jaclyn L Neo
18 Regulating judges in Russia’s dual state: between
constitutional and administrative regimes 349
Alexei Trochev
19 Struggling to adapt: regulating judges in South Africa 372
Hugh Corder
20 Regulating judges in the United States: concerns for public
confidence390
Sarah MR Cravens
Index409


Contributors
Dubravka Akšamović is an Associate Professor at the Faculty of Law
Osijek, University of JJ Strossmayer, Croatia.
Gabrielle Appleby is an Associate Professor at the University of New
South Wales and Co-Director of The Judiciary Project at the Gilbert +
Tobin Centre of Public Law, Australia.
Ray Worthy Campbell is Professor of Law at Peking University of
International Law, China.
Kay-Wah Chan is Senior Lecturer in Law at the Faculty of Business and
Economics, Macquarie University, Australia.
Hugh Corder is Professor of Public Law at the University of Cape Town,
South Africa.
Sarah MR Cravens is an Associate Professor at the University of Akron
School of Law, United States.
Tim Dare is an Associate Professor of Philosophy at the University of
Auckland, New Zealand.
Richard Devlin, FRSC, is a Professor at the Schulich School of Law,
Dalhousie University, Canada.
Fernando Dias Simões is an Assistant Professor at the Faculty of Law of
the University of Macau (China).
Adam Dodek, LSM, is a Full Professor at the Faculty of Law, University
of Ottawa, Canada.
Marco Fabri is Senior Researcher at the Research Institute on Judicial
Systems of the National Research Council of Italy (IRSIG-CNR).
David Fennelly is an Assistant Professor in the School of Law, Trinity
College Dublin, and a practising barrister at the Bar of Ireland.
Graham Gee is Professor of Public Law at the University of Sheffield,
England.
Justice Richard Goldstone served on the Constitutional Court of South Africa
vii


viii Regulating judges
from its creation in 1994 until 2003. He was also the first Chief Prosecutor for
the International Criminal Tribunal for the former Yugoslavia and Rwanda.
Fabienne Klass is research assistant at the Chair for Civil Law, German,
European and International Civil Procedure at the Leibniz University,
Hannover, Germany.
Suzanne Le Mire is an Associate Professor and Dean of Law at the
University of Adelaide Law School, Australia.
Jaclyn L Neo is an Assistant Professor at the National University of
Singapore, Faculty of Law.
Maria Angela Jardim de Santa Cruz Oliveira is a Judicial Analyst at the
Supreme Federal Court, Brazil.
Tony George Puthucherril is a Teaching and Research Associate at the
Marine & Environmental Law Institute, Dalhousie University, Canada.
Alexei Trochev is an Associate Professor of Political Science at the School
of Humanities and Social Sciences, Nazarbayev University, Kazakhstan.
Helena Whalen-Bridge is an Associate Professor at the National University
of Singapore, Faculty of Law.
Christian Wolf is University Professor at the Leibniz University, Hannover,
Germany and holds the Chair for Civil Law, German, European and
International Civil Procedure.
Fu Yulin is a Professor at the School of Law, Peking University, China.
Limor Zer-Gutman is a faculty member and the head of the David Weiner
Center for Lawyers’ Ethics and Professional Responsibility at COMAS
Law School, Israel.


Foreword
The role of judges and of the judiciary is central to the relationship
between the state and its citizenry. This is true both in democratic and
authoritarian societies. In the former, the rule of law is the dominant force
that protects the ruled from the rulers. In the latter, it is a more tenuous
relationship in which the judiciary is an arm of the executive. Crucial to
all systems of government is the manner in which the judiciary is regulated
either by outside bodies or by self-regulation. There are as many systems
for the regulation of judges as there are states and, indeed, in federal
systems there are many different systems that operate within the same
country.
It is too infrequently recognized that to appreciate and understand one’s
own system of laws one needs to examine and study others. That is the
value of comparative jurisprudence. In this book, Devlin and Dodek have
succeeded admirably in developing a tool that facilitates a comparison of
the ways in which different states across continents and legal systems seek
to regulate judges and the judiciary. That tool is a ‘pyramid’, the sides of
which consist of a number of variables. As they state in their Introduction,
they ‘provide for possible descriptions, analyses, assessments, critiques
and even potential reforms of discrete judiciaries’. This pyramid has four
sides, namely values, processes, resources and outcomes. As the editors
correctly point out, the consideration of these elements provides for a
more meaningful analysis than the more traditional reliance on independ-
ence and accountability.
The excellent chapters cover 19 jurisdictions that include the principal
legal systems – the common law, civil law and socialist law. Sensibly,
the editors did not oblige the authors to adhere strictly to the ‘pyramid’
approach. Some certainly have done so. However, the analysis of all of
them has clearly been influenced by the approach embraced by Devlin and
Dodek.
As far back at 1788, Alexander Hamilton in Federalist No. 78 said that
the judicial branch of the proposed government would be the weakest of
the three because it had ‘no influence over either the sword or the purse’.
That remains true to this day. It is the principal reason that the judiciary
has to rely for its efficacy upon its fulfilling the public trust placed in it.
ix


x Regulating judges
To that end, the judiciary in every nation requires forms of regulation that
do not detract from the independence of the institution or its individual
members. The many forms of regulation appear from the chapters that
make up this book. Some overlap and some are contradictory. The com-
parison is both a revelation and a guide to the many improvements that
might be of benefit to all systems of law.
The thesis put forward in this book is that regulation of judges and the
judiciary is a given. The debate should be about forms of regulation that
enable judges to provide the outcomes that are most conducive to a society
ruled by laws and not by men and women. In establishing that thesis and
in furthering that debate Devlin and Dodek succeed admirably.
Justice Richard Goldstone

Former Justice of the Constitutional Court of South Africa


Acknowledgements
This project has greatly benefited from the encouragement, critical
engagement and support of numerous friends and colleagues. We espe-
cially wish to thank: Justice Rosalie Abella, Emily Alderson, Jillian Boyd,
Christina Cameron, Justice Thomas Cromwell, Brettel Dawson, David
Dzidzornu, Kim Economides, Susan Fortney, Justice Stephen Goudge,
Jessica Habet, Nhi Huynh, Joseph Jamil, Justice Adèle Kent, Michelle
Kirkwood, Justice Brian Lennox, Susan Lightstone, Reid Mortensen,
Christine Parker, Stephen Pitel, Molly Ross, Amy Salyzyn, Lindsey
Wareham and Sheila Wildeman. Alex Pettiger and Laura Mann of
Edward Elgar have been extremely enthusiastic proponents of the project.
Versions of the project were workshopped at: the Atlantic Political
Science Association, Mount Saint Vincent University, Halifax, Canada;
the Canadian Association for Legal Ethics, Université de Montréal,
Canada; the Department of Law, Carleton University, Ottawa, Canada;
the Faculty of Law, Haifa University, Israel; the Faculty of Law,
Thompson Rivers University, Kamloops, Canada; the Faculty of Law,
University of Calgary, Canada; the International Association for Legal
Ethics, London, England; the International Congress of Public Policy,
Milan, Italy; the National Law School of India, Bangalore, India; the
North American Consortium on Legal Education, Monterrey, Mexico;
and Schulich School of Law, Dalhousie University, Canada.
Finally, as has been true for decades, we owe special debts of gratitude to
Alexandra and Nicky, whose patience and support have been invaluable.
xi



1. Regulating judges: challenges,
controversies and choices
Richard Devlin and Adam Dodek
INTRODUCTION: THE CHALLENGE OF

EMPOWERED JUDICIARIES
Judges are critical actors in justice systems around the world. Despite
important differences between the various legal families (civil law, common
law, socialist law and religious law), the judiciary is frequently viewed as
an institution of considerable significance across such legal families.
Judges preside over criminal trials where the liberty and, in some jurisdic-
tions, the lives of individuals are at stake. They interpret laws and adjudi-
cate disputes between individuals and the state. Judges review the legality
of administrative action. In some jurisdictions, they have the power to
strike down laws as inconsistent with the country’s Constitution. In civil
cases, they may make determinations across a panorama of disputes,
from divorce and child custody to personal injury and class actions to
multi-billion-dollar commercial disputes. As an institution, the judiciary
is often considered ‘the third branch’ of government alongside the legisla-
tive and executive branches. In short, judges exercise enormous power in
society both as individuals and as an institution.1 We can therefore speak
of judges collectively as ‘empowered judiciaries’.
Broadly speaking there have been three types of responses to the
emergence of empowered judiciaries. First, there are the boosters. They
emphasize several key points: empowered judiciaries tend to promote
development because they provide enhanced stability and predictability
in the economic sphere;2 empowered judiciaries promote human and
civil rights thereby enhancing human autonomy and the possibilities of
improved democracy;3 and empowered judiciaries support the develop-
ment of cultures of legality.4
Next, there are the sceptics. They argue that the connection between
development and empowered judiciaries is much more contingent and
complex than the boosters suggest.5 In addition, sceptics are concerned
that empowered judiciaries are a threat to autonomy, human flourishing


2 Regulating judges
and democracy because they are unaccountable, elitist and susceptible to

hubris.6
The third group consists of the pragmatists. Pragmatists accept that,
for better or worse (but usually for the better), empowered judiciaries
are a key institution in many societies and the challenge is to ensure that
they are designed in a way that maximizes the public good. Pragmatists
tend to be functionalist in their approach. While they recognize that
there are important insights to be gleaned from the normative claims of
both the boosters and the sceptics, pragmatists focus on the structures,
institutions and processes that either are (or should be) in place to ensure
that a judiciary can fulfil, but not go beyond, its proper place in the body
politic. Pragmatists have produced a very rich conceptual and empirical
literature7 and this book seeks to contribute to, and build upon, this work
by developing and deploying a new analytical paradigm that is informed
by the insights of contemporary regulation theory.8
Traditionally, most pragmatists have adopted what can be described as
a dyadic paradigm to inform their analyses. That is to say, most pragma-
tists either explicitly argue (or implicitly suggest) that there are two key
variables to be considered in any interrogation of the roles and responsi-
bilities of a judiciary. On one side is the ideal of judicial independence and
on the other is the ideal of judicial accountability. These ideals are usually
constructed as being in tension, if not conflict, and most pragmatists frame
their work as an attempt to find the right balance on a continuum between
these two desiderata:
INDEPENDENCE ACCOUNTABILITY
This framework has generated an enormously rich, sophisticated and

engaging scholarship that has been descriptive, analytical, critical and
reformist. It has advanced our collective understanding of the opportuni-
ties and challenges of designing an appropriate judicial regime.9
However, despite its analytical strength, this conventional paradigm
has at least three weaknesses. First, it suggests that there are only two
pre-eminent normative values at stake in discussions of the judiciary.
This leads many scholars to either subordinate other values to, or shoe-
horn them into, either independence or accountability. This has the
consequence of underestimating the normative complexity of proper
institutional design for a judiciary. Secondly, the conventional paradigm’s
embrace of a continuum tends to be a little too static and suggests a zero-
sum game between independence and accountability.10 This can lead to an
ideological polarization in which one is forced (or perceived) to be either
for or against judicial independence or accountability. Such a polarization


Regulating judges: challenges, controversies and choices 3
can lead to unnecessary and analytically unhelpful defensiveness and

intransigence. Third, the conventional continuum potentially stifles the
analytical conversation when the complex nature of the design of appro-
priate judicial regimes requires an open dialogue.
To remedy these defects, we propose an alternative analytical paradigm
that incorporates, but goes beyond, the conventional view. Hence our title,
Regulating Judges: Beyond Independence and Accountability. Drawing
on the insights of contemporary regulation theory, we argue that the
continuum should be replaced by a regulatory pyramid that simultane-
ously highlights the normative and conceptual difficulties of designing
and assessing an appropriate judicial regime. In the next three sections
we will: (a) highlight several key themes informing contemporary regula-
tion theory and practice; (b) propose a ‘meta-level’ regulatory pyramid
and populate that pyramid with a number of key elements that can be
used to describe, analyse and assess how any particular judiciary may be
functioning; and (c) present an overview and synthesis of the contributions
to this collection utilizing the pyramid.
I. CONTEMPORARY REGULATION THEORY AND

PRACTICE
In the last three decades there has been an explosion of theoretical analy-
ses and empirical research on regulation. This work has been driven by the
insights and interactions of multiple disciplines including (but not limited
to) economics, sociology, psychology, political science, law, public policy,
anthropology, criminology, political economy, philosophy, history, math-
ematics and international relations.11 There have been regulatory investi-
gations of almost every realm of human interaction: political, economic,
social, cultural, bureaucratic, ‘public’ and ‘private’.12 Regulatory research
has been focused on micro-,13 meso-,14 and macro-level15 relationships and
has targeted local,16 national17 and international dynamics.18
As a result of this diversity and richness, it is not possible to provide
a definition of regulation that would command the agreement of all of
its interlocutors. In this sense, regulation is an ‘essentially contested’
concept19 and practice. However, for the purposes of this book, we adopt
a working definition and suggest that there are five key themes that are
particularly significant. By way of a working definition, Black et al have
suggested that:
Regulation is a dynamic exercise in collective problem-solving . . . the sustained

and focused attempt to alter the behaviour of others according to standards or


4 Regulating judges
goals with the intention of producing a broadly defined outcome or outcomes

which may involve mechanisms of standard setting, information-gathering and
behaviour modification.20
Building upon this skeleton, a review of the literature suggests a number

of key themes.
Regulation is an inherently normative and programmatic exercise. While
there are undoubtedly difficult technical and practical aspects to every
regulatory initiative, at bottom all regulation is driven by a desire
to improve the public good.21 Inevitably, there are different – even
competing – conceptions of what is meant by ‘the public good’, but
there can be no avoiding the normativity of any regulatory enterprise.22
Importantly, even if there is no dispute as to the ideal values, there is
usually more than one value at stake in the pursuit of the public good
and these various values may be in tension or even in conflict. Regulatory
interventions need to be aware of, and responsive to, these normative
challenges and dilemmas.
Regulation is complex. Once upon a time ‘regulation’ was conceived of
as an essentially prescriptive, pseudo-Austinian, phenomenon: it was the
command and control model whereby one party would mandate rules and
enforce compliance through sanctions.23 Regulation in this model was
hierarchical, monological, deterrent- driven and ‘hard’. Contemporary
conceptions of regulation acknowledge that command and control pre-
scriptions are one form of regulation, but argue that descriptively and nor-
matively regulation is more encompassing. Because command and control
approaches have their weaknesses and limitations – ineffectiveness, expen-
siveness, bluntness and inflexibility – the realm of regulation has been
expanded to identify and endorse other forms of regulation that are
more collaborative, more persuasive, more co-operative, more accom-
modative, more dialogical, and ‘soft’. These have been variously described
as ‘responsive’,24 ‘smart’,25 ‘meta’,26 ‘really responsive’,27 ‘risk-based’,28
‘principles-based’29 or ‘outcomes-focused’.30 Such approaches, in turn,
generate an additional set of inquiries into the meaning, nature and
dynamics of (non-)compliance.31
Regulatory analysis is highly contextual. Because the realms of social
interaction are so diverse, and because the regulatory objectives, goals and
values can be so distinct, it is neither possible nor desirable to seek uni-
versalizable regulatory analyses.32 Rather it is preferable to identify a par-
ticular realm of inquiry, articulate appropriate guiding values, and then
interrogate and assess whether those values are being achieved through the
prevailing structures, institutions, processes, actors and dynamics.33 Such
contextualism requires us to pay attention not only to what regulators


try to do, but also how the regulatees respond.34 Viewed in this light,
regulation is a craft, a problem-solving art.35
Hybridity is the leitmotif of regulation. Because of the desire to pursue
more than one value, and of the inevitable complexity and contextualism
of regulation, it is often argued that hybridity is a key characteristic of
contemporary regulatory practices.36 In order to appropriately respond to
the interests, identities, competencies and capacities of the multiple stake-
holders (both the regulators and the regulatees) the design of a regulatory
architecture must be sensitive to both ends and means, outcomes and pro-
cesses, and be willing to deploy a mix of regulatory approaches, mecha-
nisms and instruments. Many regulation theorists therefore embrace and
endorse regulatory frameworks which combine elements of self-regulation
with prescriptive and/or accommodative regulation. The weight and
prominence to be given to each form of regulation within the framework
tends to be highly specific to each regulatory domain.37 This leads many
analysts to propose models, heuristics and metaphors to guide their
inquiries and evaluations. Matrices,38 flow-charts,39 pyramids,40 rowing
boats41 and even Russian dolls42 are often deployed to facilitate analysis.
Change, Flux and Innovation. Many analysts of regulation argue that
because of the inevitability (and rapidity) of social, economic, political,
cultural and technological changes, regulatory norms, processes and
instruments must also be dynamic.43 Regulation is, therefore, always a
work in progress.44 To be effective, regulatory thinking cannot be frozen
in time, and regulators must be open to innovation, revision, recalibration,
reconstruction and experimentation. Reflexivity and imagination are core
capabilities for both regulatory actors and institutions.45
It is important to emphasize, however, that regulatory imagination
and innovation are not to be understood as ends in themselves. Rather,
any assessment of such changes must be directly related to the norms and
values initially identified, and the outcomes desired. This is simply a reit-
eration of our initial observation that regulation always has an irrepress-
ible normative underbelly.
II. REGULATING JUDGES: A PYRAMID
The foregoing working definition of regulation, supported by the themes

of normativity, complexity, contextualism, hybridity and flux, suggest to
us that the conventional dyadic framework for analysing and assessing the
functioning of judiciaries could benefit from renovation and moderniza-
tion. In lieu of the continuum, we propose a regulatory pyramid that is
comprised of four key elements, a floor and three walls. The discussion in


6 Regulating judges
this section will develop in two stages: first we will present the regulatory
pyramid at the meta level in order to demonstrate how it differs from,
and is more comprehensive than, the conventional paradigm. Second we
will populate the pyramid with a number of key variables that provide for
possible descriptions, analyses, assessments, critiques and even potential
reforms of discrete judiciaries. The following, and penultimate, section of
this Introduction will then demonstrate the utility of this pyramid through
synthesis of the various contributions to the book.
A. The Regulatory Pyramid: A Meta-Level Analysis
As we have indicated, we propose that an analysis of a judiciary can be

helpfully constructed upon four key elements: a floor and three walls.
First, we suggest that there must be a normative foundation, a floor,
for any judicial system. Without such a foundation the judicial edifice will
inevitably collapse. Sometimes the components of this floor are explicit;
often they are implicit. We call the foundation Values (see Figure 1.1).
VALUES
Figure 1.1 Values
At this stage of the discussion we do not specify what these values might
be; we simply suggest that both normatively and analytically, they need to
be there.
Second, there is the first of the three walls. We will call this Processes
(see Figure 1.2).
PROCESSES
VALUES
Figure 1.2 Processes


Processes are the institutional mechanisms and procedures that are put
in place to establish, maintain, channel or restrain a judiciary. They are
both intimately connected with, yet distinct from, the values that lay the
foundation. They are connected in that they give institutional form to the
core values. They are distinct in that they are bureaucratic and, maybe,
even formalistic in nature.
Raising the spectre of bureaucracy leads to the third of our pyramidal
elements, and the second of our walls: Resources (see Figure 1.3).
PROCESSES RESOURCES
VALUES
Figure 1.3 Resources
The instantiation of foundational values through the creation of

bureaucracies and processes is not simply an imaginary exercise; it is a
construction project and as such it requires material resources. Again,
at this point, it is not necessary to identify what these resources are, or
where they will come from. Rather, we simply propose that these must be
factored into any analysis or assessment of how judges might be regulated.
Finally, we come to the third wall of the pyramid, Outcomes (see Figure 1.4).
PROCESSES RESOURCES
VALUES
OUTCOMES
Figure 1.4 Outcomes


8 Regulating judges
The combination of values, processes and resources is designed to achieve

some social good, some desirable outcome; they are the means to an end,
or perhaps several ends. To the extent that a well-functioning judiciary is
perceived to be a key element of a well-functioning polity, it is essential to
contemplate outcomes.
Again, it is not necessary at this stage to stipulate what those outcomes
might be, and they may vary from country to country, jurisdiction to
jurisdiction, and legal tradition to legal tradition. However, it is important
to emphasize that the outcomes must align with each of the previous
elements – the foundational values, the preferred processes and the alloca-
tion of resources.
The challenge then is to bring these four meta-elements together to
construct the regulatory pyramid (Figure 1.5).
PROCESSES RESOURCES
OUTCOMES
VALUES
Figure 1.5 The regulatory pyramid
Now, of course, this regulatory pyramid is an ideal-type, a heuristic, a

conceptual abstraction. But this abstraction is also its analytical strength.
Its generality provides four variables that are potentially helpful for a
description, or analysis, or assessment, or critique of all the multiple actors
involved in the operationalization of a judicial system. Moreover, it is
highly unlikely that any judiciary anywhere in the world would align so
elegantly, or dovetail so neatly, with this model. But again such an insight
can help foster analyses, inform assessments, engender critiques or initiate
potential reforms. However, such engagement anticipates the second stage
of our framing exercise, and it is to this that we can now turn.


B. Adding Substance/Getting Contextual: The Meso-Level Analysis
In this subsection we go beyond the abstraction of the previous discus-

sion to suggest some possible content for each of the four elements of the
pyramid. As we begin this discussion, it is important to emphasize that
we are not endorsing any particular content; we are simply suggesting
potential content which various jurisdictions may seek to pursue in their
regulatory regime for the judiciary. They are also likely to vary with time,
space, culture and context. But if we can identify such content, then it
becomes a benchmark for assessment and evaluation, which is the aspira-
tion for all of those who have an interest in this field.
i. Values
At this stage it is important to identify the values that a community might
expect to guide and govern a judiciary.46 This is potentially quite difficult
because values are often implicit, intuitive and taken for granted. Then,
when they are articulated, values are open to contestation. Even worse,
they may reveal contradictory aspirations and normative visions. But it is
hard work that must be done – if we do not know what we value, how can
we know what we are regulating for?
Thus, at this point, we hypothesize that the following six values might
lay the foundation for a regulatory regime for judges:
(1) Impartiality: decision making that is free from personal, social,

cultural, economic or institutional bias, and which fairly assesses the
rights and interests of the parties involved.
(2) Independence: personal and institutional freedom from state and
non-state actors in order to make autonomous judgment possible.
(3) Accountability: the commitment to ensure that the values of inde-
pendence and impartiality are appropriately deployed in the public
interest, rather than the interest of judges themselves.
(4) Representativeness: the composition of the judiciary is broadly
inclusive of the diversity of the larger population, particularly on the
variables of gender, race, class and disability.
(5) Transparency: the commitment to openness and candour.
(6) Efficiency: the aspiration that social and personal investments in the
judiciary and judicial processes are cost-effective.
We recognize that there are other elements or variables that are deserving
of further consideration. In the penultimate section of this Introduction,
we reflect upon these variables in light of each of the 19 case studies that
this book offers.


10 Regulating judges
ii. Processes
If values are the floor, then processes are one of the walls of the pyramid
and, as such, are intimately connected with values. As we have suggested,
they are the institutional mechanisms and procedures put in place to
establish, maintain, channel or corral a judiciary. The processes are likely
to include:
(1) institutional relations (eg constitutional, conventional or statutory)

with the other state institutions (eg executive, legislature, Crown,
political and religious authorities, etc);
(2) recruitment and appointment processes;
(3) training and continuing education;
(4) appellate mechanisms;
(5) ethical assistance programmes and networks;
(6) complaints and discipline processes;
(7) relations with the public;
(8) relations with media;
(9) judicial immunity/liability; and
(10) performance evaluation.
iii. Resources
Because the judiciary is an institution, a bureaucracy, it inevitably requires
resources, and the nature and extent of those resources is closely tied to
the values we espouse, the processes we endorse and the outcomes we
anticipate. Consequently some of the issues that merit attention include:
(1) court budgets;

(2) numbers of judges, part-time and full-time, per capita;
(3) salaries and pensions of judges;
(4) physical infrastructure;
(5) support staff;
(6) technological needs/supports; and
(7) security.
iv. Outcomes
Values, processes and resources are all designed to achieve desired out-
comes. Although these might vary from jurisdiction to jurisdiction, we
suggest that one potentially generalizable outcome would be public confi-
dence in the judiciary.
In sum, our regulatory pyramid is as shown in Figure 1.6.


RESOURCES
• Court budgets
• Numbers of judges, part-time
PROCESSES
and full-time, per capita
• Institutional relations
• Salaries and pensions of judges
• Recruitment and appointment
• Physical infrastructure
processes
• Support staff
• Training and continuing
• Technological needs/supports
education
• Security
• Appellate mechanisms
• Ethical assistance
programmes and networks
VALUES
• Complaints and discipline
• Impartiality
processes
• Independence
• Relations with the public
• Accountability
• Relations with media
• Representativeness OUTCOMES
• Judicial immunity/liability
• Transparency • Public confidence in the
• Performance evaluation
• Efficiency judiciary
Figure 1.6 The regulatory pyramid and its components
III. DEPLOYING THE PYRAMID: THE CASE

STUDIES
A. The Contributors – Overview
In conceptualizing this book, we invited scholars from 19 jurisdictions to

reflect upon what have been, or currently are, some of the most salient
issues in their chosen jurisdiction when it comes to the challenges of regu-
lating judges. We intentionally selected a mix of scholars from a variety
of jurisdictions in order to determine if the pyramid had any analytic
resonance. Readers may inevitably ask why a particular country was not
included. The aim of this project was not to create an encyclopedia but
rather a manageable collection of essays from diverse jurisdictions. All
continents are represented in this collection and all major legal systems.
We are common law scholars and this collection has a heavy dose of
common law jurisdictions. We have endeavoured to include representa-
tive civil law jurisdictions (Brazil, Croatia, Germany, Italy, Portugal and
Russia), mixed systems (India, Israel, Japan, Malaysia, Singapore and
South Africa) and other systems (ie China: socialist).47 We also deliberately


selected a diversity of scholars in terms of seniority, gender and race in

order to bring as many voices to the conversation as might be manageable
within the confines of a single edited collection.48 Furthermore, in order
to ensure diversity, creativity and freshness of voice, we did not insist
that contributors adopt our pyramid as some sort of scientific formula
to be single-mindedly applied. Rather, we encouraged them to use it as
potential scaffolding, or as a point of departure, for their own narratives
of judicial regulation. As a consequence, some authors have embraced the
pyramid wholeheartedly and applied its components broadly (Campbell
and Fu, Corder, Dodek and Devlin, Gee, Oliviera, Trochev). Others
have focused on selected aspects of the pyramid (Appleby and Le Mire,
Akšamović, Fabri, Fennelly, Puthucherril, Simões, Chan, Wolf and Klass,
Zer-Gutman), and yet others have chosen to undertake in-depth analyses
of several issues that can be located within the pyramid (Cravens, Dare,
Neo and Whalen-Bridge, Whalen-Bridge and Neo). While some readers
might find that this openness to diversity undercuts the scientific rigour
of the project, we believe it enhances the authenticity of the contributions
and the particularity of the challenges of judicial regulation. Moreover,
this approach has enabled country experts to focus on the approach that
best suits their ability to present a story about their national judiciary.
As a result, we believe that this has facilitated the work of our contribu-
tors, rather than boxed them into our chosen paradigm. Indeed, some
contributors implicitly or explicitly challenge aspects of our regulatory
pyramid (Dare, Gee, Whalen-Bridge and Neo). Rather than undermining
the project, we believe that the expression of such scepticism is healthy and
promotes the goal of this project, which is to open up the conversation
about the regulation of judges.
B. The Contributors – Synthesis
In this section, we will locate some of the insights generated by the contrib-
utors in the context of the various components of the regulatory pyramid.
i. Values
All of the contributors agree that regulating judges, like all forms of
regulation,49 is an inescapably normative project. Each author has i dentified
how certain values – sometimes explicitly, sometimes implicitly – inform
the design and practice of the regulatory systems in their respective jurisdic-
tions. Collectively, they also indicate that such values are contested, deeply
contextual, in need of considered calibration, and in a continuous state of
flux. They also concur that no one value should trump all others.


Impartiality Somewhat surprisingly, our contributors do not give impar-

tiality as much explicit attention as we would have thought. There may be
several reasons for this. First, they may see independence and impartiality
as synonymous. Second, they may conceptualize impartiality as more
of an ‘outcome’ than a ‘value’ as some have suggested to us at various
times. Or third, they might assume that impartiality is so obvious that it
does not require explicit analysis. Having said this, several commenta-
tors do expressly identify concerns with the impartiality of their judges
(China, Croatia, India, Japan, Malaysia, Portugal, Russia, United States)
while others claim the opposite (England and Wales, Germany, Ireland,
New Zealand, Singapore).
Moreover, as we will discuss below under the rubric of processes, several
regulatory mechanisms are explicitly focused on enhancing impartiality
(appointment processes, educational programmes, appellate mechanisms,
ethical assistance initiatives, discipline mechanisms, performance assess-
ments and judicial liability) and some of these do garner extensive analysis
among the contributors.
However, there are several discussions where impartiality is identified as
not being a priority value and is subordinated to other political, social and
cultural norms (China, Italy, Japan, Russia, United States).
Independence Unsurprisingly, almost all of the contributors iden-

tify independence as a core judicial value. Whether we are discussing
well-established democracies (Australia, Canada, England and Wales,
Germany, India, Ireland, Israel, Italy, Japan, New Zealand, Portugal,
United States), emerging democracies (Brazil, Croatia, Malaysia,
Singapore, South Africa) or even non-democracies (China, Russia), inde-
pendence is recognized as a vital characteristic of any defensible judicial
regime. Even in jurisdictions where one would think that independence
is impossible, such as China, a ‘nuanced conception of independence’ is
still in play. Similarly in Russia, there are several significant indicators
of judicial independence, not only in constitutional theory, but also in
judicial practice.
The authors also make several other key points. First, independence
is identified as having multiple dimensions. The core, of course, is the
independence of the individual judge. Here the ideal is that each judge is
free to determine the outcome of a case uncontaminated by extraneous
influence, either from inside the judiciary or from without. Then there is
the independence of the judiciary as an institution. This tends to focus on
the separation of powers thesis, suggesting that the judiciary as a collective
be understood as a distinct and free-standing institution. Finally, there is
administrative independence, the idea that as a bureaucracy the judiciary


should be master of its own house, with the capacity and resources to
pursue its obligations in the manner in which it sees fit. The case studies
demonstrate that from jurisdiction to jurisdiction, the balance of these
three conceptions of independence varies enormously, and that they can
shift over time.
Second, the legal status or pedigree of the value of independence varies
considerably. In some jurisdictions it is given explicit constitutional status
(Brazil, Croatia, Germany, India, Ireland, Italy, Japan, Malaysia, Portugal,
Russia, Singapore, South Africa); in others it is more of a constitutional
convention or norm (Australia, Canada, England and Wales, New Zealand,
United States); in others it manifests in legislation (Israel); and in yet others
it is formally absent (China). Such divergences are significant for two
reasons: they illustrate once again the highly context-specific nature of our
values; and they also highlight that there is no necessary connection between
formal legal pedigree and the materialization of such values on the ground.
Third, the chapters demonstrate that without exception, judicial inde-
pendence is vulnerable to challenges by other social actors. In all juris-
dictions the judiciary is identified as a key political institution and this
inevitably tempts governments and other powerful actors in the commu-
nity, and even other judges, to seek to have influence over the judiciary.
We will elaborate further on this in our discussions of processes.
Fourth, while all the contributors concur that independence is crucial,
a significant number (Australia, Brazil, Canada, Croatia, India, Ireland,
Israel, Italy, New Zealand, Russia, United States) also provide examples
of how judges have deployed (or have sought to invoke) independence in
a manner that is resistant to reform and seems to be more in the interests
of themselves than the promotion of a public good. The result can be an
undermining of public confidence in the judiciary.
Accountability Once again it is not surprising to see accountability as an

important value, given that this has been one of the poles in the traditional
dyadic analytical framework. As a manifestation of the ‘who guards the
guardians?’ conundrum, the chapters in this book suggest that there are
several mechanisms available to ensure that judges do not arrogate to
themselves excessive authority and power.50 These might include constitu-
tional modifications, legislative/executive interventions, discipline mecha-
nisms, elections, educational initiatives, judicial liability, media scrutiny
and budgetary controls, among others. Some of these mechanisms are
‘hard’ regulation; others are ‘soft’. The acceptability, suitability and effec-
tiveness of such mechanisms are highly context dependent.
Furthermore, there are a number of regulatory failures where it seems
that accountability mechanisms have been less than effective (Canada,


Croatia, India, Italy, Russia, United States). However, one’s acknowl-

edgement and assessment of the degree of such failures will be dependent
on whether one is more of a booster, sceptic or pragmatist, and one’s own
judgment of how to balance the multiple values at stake in designing an
appropriate regulatory regime.
Representativeness Representativeness is a much more contested value

than impartiality, independence or accountability. For some, representa-
tiveness is a vital value in that it seeks to demonstrate that the judiciary
is broadly reflective of the larger community and that, in turn, enhances
its capacity for impartiality and fosters greater public confidence. Others,
however, believe that representativeness is antithetical to independence
and indeed an assault on impartiality.
Not all of the contributors have addressed the value of representative-
ness. Among those who do (England and Wales, Italy, Japan, Portugal)
representation refers to the professional diversity of the legal profession
(barristers, solicitors, academics); for others it may relate to the geo-
graphic diversity of a jurisdiction (Canada); for others it might relate to
gendered, racialized or other forms of identity (Australia, England and
Wales, Canada, Germany, Ireland, South Africa).
Transparency Transparency is closely connected to the values of account-

ability and efficiency, but in recent decades it has come to be identified as
a significant value for any system that aspires to good governance.51 Once
again, not all of the contributors address transparency directly. However,
for those who do, it is identified as a major issue for judicial regulation
(Australia, Canada, England and Wales, Germany, India, Ireland, Israel,
Italy, New Zealand, Russia, United States). In most jurisdictions the
judiciary is an elite and privileged group which exercises significant social
and political power. But in a number of key domains there seems to be
excessive secrecy, for example in appointments (Australia, Canada, China,
Germany, India, New Zealand, Russia, United States), complaints and
discipline (Australia, Russia), ethical guidance, education and evaluation.
However, in other jurisdictions, there have been significant moves towards
much greater transparency (England and Wales, Ireland and Italy).
One particularly interesting (and obviously controversial) development
is the recent innovation in two jurisdictions that judges be required to make
public their annual judicial household income (Russia, South Africa). In
India, judges are obliged to provide asset declarations under the Right to
Information Act. The United States has required annual financial disclo-
sure from all federal judges, including those on the Supreme Court, for
many years.52


Efficiency The value of efficiency attracts a great deal of interest from

the contributors. Traditionally, concerns about efficiency have been seen
to be a sub-element of accountability, but its prominence in this volume
suggests that it is important to consider it as a free-standing variable.
The epitome of the importance of this regulatory value is probably the
establishment in 2002 of the European Commission for the Efficiency of
Justice (CEPEJ).53 According to its founding statute, the functions of the
CEPEJ are to:
(a) examine the results achieved by the different judicial systems by using
among other things, common statistical criteria and means of evaluation, (b)
define problems and areas for possible improvements and exchange views on
the functioning of judicial systems, (c) identify concrete ways to improve the
measuring and functioning of the judicial systems of the member states having
regard to their specific needs.
The statute continues that the CEPEJ shall fulfil these tasks, for instance,
by:
(a) identifying and developing indicators, collecting and analyzing quantitative

and qualitative figures, and defining measures and means of evaluation, and
(b) drawing up reports, statistics, best practice surveys, guidelines, action plans,
opinions and general comments.54
While the mandate of the CEPEJ includes more than just judges, the
efficiency and effectiveness of judges lie at the core of a significant
number of the chapters of the biannual reports which are produced by
the CEPEJ.55
Efficiency has also been a core concern for many of the contributors
to this collection and collectively they suggest that this is a value that has
been assuming significantly greater prominence in the last few decades
(Canada, China, Croatia, England and Wales, Germany, India, Ireland,
Italy, Portugal, Russia, Singapore).56 In Brazil, ‘efficiency’ has even been
given constitutional status. The consensus seems to be that in every juris-
diction increased judicial efficiency is an uphill battle.
Other values While most of the contributors to this book concur that
the foregoing values are some of the more pertinent values that should
inform an assessment of the regulatory regime for judges, several contribu-
tors emphasize that it is important to pay close attention to other more
jurisdictionally specific values. In Canada it is federalism. In Israel they
are fairness, due process and access to justice. In India they are Dharma
and social justice. In China they include li, face and guanxi in the pursuit


of social harmony and economic growth. In Japan it is a deep-seated

commitment to conservatism. In Germany, it is a commitment to defen-
sive democracy and the protection of human rights in response to the
catastrophe of Nazism. In Singapore, it is national pride in its reputation
for transcending corruption. In Russia, it is loyalty to the relevant power
holders whether they be local, regional or national. In the United States,
they are the values of democratic accountability through the ballot box
and the constitutional protection of free speech. In South Africa, it is
‘transformative egalitarianism’.
ii. Processes
Processes are the focus of the vast majority of our contributors. This is
understandable because they are all lawyers, and lawyers are strongly
attracted to processes. But their discussions of the processes reveal the
values at stake, the outcomes sought and the resource issues involved.
Institutional relations All the contributors acknowledge that discussion

of the institutional relationships with other government (and in some cases
non-government) actors is essential to an understanding of how judges
are regulated. The key institutions tend to be the executive, the legislature
and the bureaucracy. Some authors focus on the constitutional nature of
the relationships (Brazil, Canada, Croatia, England and Wales, Germany,
India, Russia, South Africa); others (and even sometimes the same
authors) focus on the conventions that have developed to inform such
relationships (Canada, England and Wales, Ireland, Japan, New Zealand,
Russia); others discuss the statutory regimes governing the relationships
(Australia, Israel, Italy, Malaysia, United States); while others address
the policy-level dynamics of the relationships (China, England and Wales,
Russia, Singapore). Increasingly, international/regional organizations
also seem to be having a regulatory impact on some national judiciaries
(Croatia, Portugal, Russia, Singapore).
Collectively the chapters reveal that there is often tension – indeed
even outright conflict and hostility – between the judiciary and the other
institutions. Sometimes these challenges are structural (Australia, Brazil,
Croatia, India, Ireland, Israel, Italy, Portugal, Russia, South Africa,
United States), but on other occasions they seem to have a personal
dimension (Australia, Canada, China, India, Israel). Occasionally, these
relationships are relatively smooth (Germany, New Zealand) but only if
the judiciary is compliant (Japan).
Recruitment and appointment Those who are familiar with the civil-
ian tradition of ‘career judges’ intuitively recognize that appointment


processes are inherently regulatory in nature because of the openly

competitive and (supposedly) merit-based nature of the appointment and
promotion regimes (Brazil, China, Croatia, Italy, Germany, Portugal,
Russia). However, not all common lawyers who are familiar with a regime
of ‘recognition judges’ (ie those appointed from the ranks of lawyers) rec-
ognize the regulatory nature of the process. In fact, we would argue that
recruitment and appointment processes are perhaps the most powerful
regulatory instruments because they are ex ante in nature; they filter in and
they filter out. We will explain by way of analogy.
In many jurisdictions we talk about ‘admission to the practice of law’
and in so doing recognize that this is a privilege not a right, a privilege
that is conferred on only some people who are suitably qualified based
upon some specified criteria. This is hard regulation – regulation as gate-
keeping, regulation as command and control – and we recognize it as a
very powerful form of regulation.57 The recruitment and appointment of
judges is similar and can be conceptualized as ‘admission to the practice of
judging’. It too is a privilege and not a right, one that is conferred on a very
small number of people who are assessed to be suitably qualified based
on some very particular criteria. This too is hard regulation – command
and control, gatekeeping – a very powerful form of regulation. In fact, it
is the most significant form of regulation because all the others are only
potentially triggered after appointment. Therefore judicial appointment is
judicial regulation par excellence.
Several insights emerge from our contributors on the theme of recruit-
ment and appointments. First there are a variety of regulatory regimes:
career approaches (Brazil, China, Croatia, Germany, Italy, Japan,
Portugal, Russia); election approaches (Japan, United States); and recog-
nition approaches (Australia, Canada, England and Wales, India, Ireland,
Israel, New Zealand, Singapore, South Africa).
Second, in every jurisdiction and regardless of which appointment
process is adopted, there is controversy that politics (whether the everyday
politics that exist within any institution or partisan politics or both) con-
taminate the process, potentially challenging the values of independence,
impartiality, transparency, representativeness and even efficiency. Judicial
appointments are seen as a glittering political prize, and the power to
control such appointments is highly coveted by legislators, executives,
senior judges, bureaucrats and other powerful social actors. Even in
jurisdictions that have tried to eliminate political influences, for example
through the use of Judicial Appointments Commissions, problems remain.
Third, and closely connected, while there are formal processes in place
in most jurisdictions, informal considerations, connections, norms and
networks are pervasive. Fourth, similar concerns are reproduced, indeed


intensified, in the context of judicial promotions/elevations where often

there is even less transparency.
Training and continuing education The training and continuing education

of judges is a vitally important form of regulation because it is designed
to ensure that judges are competent, thereby enhancing public confidence.
Depending on their content, such educational programmes can also seek
to advance or reinforce the values of impartiality, independence, account-
ability and even efficiency.
Only a limited number of contributors address this important issue,58
but they suggest several key insights. First, just as with appointments,
diversity is the key motif. Broadly speaking, career judges get exten-
sive pre-appointment training (Brazil, China, Croatia, Germany, Italy,
Japan, Portugal, Russia) whereas in recognition judiciaries it is minimal
(Canada, England and Wales, India, Ireland, New Zealand, United
States), although there are signs that this might be changing (Australia,
England and Wales, Singapore). Second, and connected to the first point
and depending on the system, education and training can be considered
either as hard or soft regulation, and this in part will also depend upon
whether such programmes are mandatory or optional. Third, again
depending on the content (and also who is empowered to design and
deliver such programmes), there is the need to consider how political (both
institutional and partisan) considerations might be brought to bear and
how they implicate the values of impartiality, independence, transparency,
efficiency and accountability.
Finally, a number of systems have been attempting to improve their
continuing education programmes in recent years (Australia, China,
Croatia, England and Wales, India, Malaysia, Singapore, South Africa)
but the key question remains as to how to assess the effectiveness of such
initiatives.
Appellate mechanisms The power of an appellate court to either confirm

or reverse the decision of a lower court judge is a vitally important regula-
tory mechanism. It is an obvious example of hard regulation. It is also a
form of judicial self-regulation. Appellate overruling might be seen as an
infringement on the independence of an individual judge, but it is justified
on the basis of accountability, transparency and perhaps efficiency. In
some jurisdictions we hear of lower-level judges ‘appeal proofing’ their
decisions.
Only some of the contributors address appellate review as a regulatory
instrument. This is surprising because judges tend to point to appellate
mechanisms as the primary exemplar of accountability. However, as


emonstrated in this Introduction and by the contributions to this book, it

d
is not the only form of accountability, nor necessarily the strongest or most
efficient process to facilitate accountability. Appellate review is directly
related to public confidence; a mechanism needs to be in place to ensure
that an aggrieved party can seek a considered second opinion. However,
there is a manifest concern that appeal mechanisms can be abused, espe-
cially through delay tactics, and this can undermine public confidence in
the system, especially where there are concerns about inequality between
the parties (Brazil, Croatia, India).
Ethical assistance programmes and networks In most jurisdictions explicit

analysis and discussion of judicial ethics is a relatively recent phenom-
enon, perhaps because of the historic ideal/presumption that judges are
impartial and independent.59 However, with an expanding emphasis on
accountability and transparency, increasing attention has been paid to
this sphere. It is also closely connected to the enhancement of public con-
fidence in the integrity and impartiality of the judiciary. As such, it is an
important form of regulation.
Once again our contributors shed light on several key regulatory ques-
tions. The first is whether it is necessary for judges to be subject to a code
of conduct. In most jurisdictions covered in this book they are, but in some
they are not (Canada, Germany, United States). This in turn requires us
to consider the possible functions of a code of conduct – self-regulation,
assertion, public confidence, governmental control – and the relative
desirability of each of these (Malaysia). The third question is whether such
a code should be published and publicly available or only accessible to
the judges themselves (Singapore). The fourth is whether a code should
be binding (and therefore potentially part of a discipline mechanism) or
simply hortatory (and therefore only a guideline for suitable behaviour)
(Canada, Malaysia). The fifth is whether a code should only regulate
judicial behaviour, or whether it should also regulate extra- judicial/
private behaviour. A sixth is who should decide the content of such a code.
Should it be the judges themselves and/or others, and if so whom (Israel,
Malaysia, Russia, Singapore, United States)? All of these issues are really
a manifestation of a larger debate about whether a code of conduct should
be hard or soft regulation. They also inevitably implicate the various
values at stake, as well as public confidence concerns.
Furthermore, several contributors also discuss the regulatory significance
of ‘ethical assistance committees’. In most jurisdictions, judges usually
have informal conversations with judicial colleagues when they experience
an ethical dilemma. Often this will be with a senior colleague. This is an
example of soft/informal regulation. However, several jurisdictions have


created committees to which a judge can make an inquiry seeking advice on

how to respond to an ethical dilemma (Canada, Israel, United States). The
advice of such committees can be an important form of regulation because,
although it is not binding, it can have a very significant impact on the deci-
sion making of the judge in question. But this in turn raises the regulatory
questions of whether such advice should be made available to other judges
(and if so, under what conditions?) (Canada, United States) or even to the
general public (and again, if so, and under what conditions?) (Israel, United
States). Such debates are informed by the values of independence, account-
ability, transparency, efficiency, the challenge of resources, and the desire
to promote public confidence in the judiciary.
Complaints and discipline mechanisms Complaints and discipline mecha-

nisms are often the first thing that comes to mind when one couples
‘regulation’ with ‘judges’. This is mostly because complaints/discipline
dovetails very nicely with traditional command and control conceptions
of regulation. But at this point we want to reiterate that complaints and
discipline mechanisms are only one of the multiple forms of regulation
experienced by judges. While complaints/discipline may be high profile
and high drama, because it is an ex post form of regulation, its actual
impact on judicial behaviour may be less than other forms of regulation.
The authors offer a number of contributions to the understanding of
complaints and discipline processes for judges. First, once again they
suggest a multiplicity of possible systems. Some are self-regulatory in
nature (Australia, Brazil, Canada, Croatia, Ireland, Italy, New Zealand,
Russia), others manifest external regulation (China) while others are co-
regulatory in nature (India, Israel).
Second, and again connected to the first point, they illustrate that
complaints/discipline highlights the challenges of calibrating the values of
impartiality, independence, transparency, accountability and efficiency.
The case studies demonstrate that there is no necessary connection
between one form of regulation and any particular value; the connections
are contingent on a complex mix of variables.
Third, complaints/discipline is often a flashpoint between the judiciary
and the other branches of government or other powerful social actors. If
the politics of a particular disciplinary action are not always immediately
obvious, they are usually not far below the surface.
Fourth, the design and appropriate enforcement of complaints and
discipline mechanisms are vital aspects of promoting public confidence
in the judiciary. In this regard, there are significant concerns about both
the transparency (Australia, Canada, India, Ireland, Italy) and efficiency
(Canada, India, Italy) of such systems.


Fifth, given all the foregoing, complaints and discipline processes have
been a particularly fertile domain for reforms in a number of jurisdic-
tions (Canada, England and Wales, India, Ireland, Italy, South Africa),
although whether such initiatives are successful remains unresolved.
Relations with the public Traditionally in many societies judges have

been set apart from the general public. In both their public and private
lives they were often encouraged – or they chose or were required – to lead
a cloistered existence. Though rarely categorized as such, such culturally
constructed norms are in fact an extremely potent form of regulation,
constituting the identity and relations not only of the judge but also
potentially his or her family members. This construct was justified on the
basis of impartiality and independence, and the presumption that it would
contribute to public confidence.
However, as the contributors demonstrate, with increasing emphasis
on transparency and representativeness, judges in some jurisdictions have
been stepping out of their traditionally cloistered existence to engage more
actively with their communities (Australia, Canada, South Africa). It is
thought that demonstrating the human face of the judiciary is more effec-
tive in promoting public confidence than institutionalized aloofness.
Relations with the media In the modern world the media are essential
fora of social interaction. Traditionally, once again driven by the prioriti-
zation of independence, the preferred position has been media avoidance.
However, in many jurisdictions that is no longer a realistic option.60
The media might well be understood as a form of ‘soft regulation’.
While they have no direct authority over judges, the presence of media
is an important mechanism of transparency and accountability. In the
United States, for example, there has been extensive media coverage of
potential bias by members of the Supreme Court. In both Russia and
South Africa, there has been considerable media attention on the judici-
ary. The media may also influence judges’ decision making. In the United
States, there has been much discussion of the so-called ‘Greenhouse
effect’, named after Linda Greenhouse, the New York Times long-serving
Supreme Court reporter and analyst. The ‘Greenhouse effect’ refers to
the leftward shift of conservative justices in order to curry favour with the
liberal media.61
The importance of media relations is highlighted by the fact that in
several jurisdictions, courts have increasingly been resorting to the services
of ‘judicial liaison officers’ (Australia, Canada) and broadcasting (some
of) their proceedings (Brazil, Canada, Russia, United States).


Judicial immunity/liability Another potentially important regulatory

mechanism is to hold judges liable for wrong decisions. Although few
of our contributors directly address this question, it is important. Legal
liability for conduct that harms another is a key aspect of any legal system,
whether it relates to driving mistakes, medical mistakes, environmental
mistakes or whatever. It is a key instrument of accountability.
Traditionally, it has been argued that judicial liability is incompatible
with judicial independence, and that the better regime is one that embraces
absolute judicial immunity.62 This might be a persuasive argument if other
regulatory mechanisms – such as complaints and discipline – are effec-
tive. However, as many of the chapters in this collection demonstrate,
this is not the case. Therefore, it might well be worth asking whether it is
necessary to have a system of absolute judicial immunity. Might it not be
worthwhile considering a system of ‘qualified judicial immunity’, a system
that is in fact in place in some civilian systems (China, Italy, Portugal),
which would more finely calibrate the virtues of impartiality, independ-
ence, transparency and accountability?63
Performance evaluation Although not all of the contributors focus on

performance evaluation, it can be a vitally important aspect of any regula-
tory system for judges.64 In civilian systems where there is a career judici-
ary, there are well-established regimes of evaluation primarily designed
to assess the suitability of candidates for admission and then promotion
through the judicial ranks (Brazil, China, Croatia, Germany, Italy, Japan,
Portugal, Russia).65 Such systems are very much concerned with the
values of impartiality, independence, transparency, accountability and
efficiency.66 They are also designed to help reinforce public confidence,
especially in terms of competence.67 Whether they succeed in these aspira-
tions is a difficult question (Croatia, Italy).
However in some ‘recognition judiciaries’ (Canada) the idea of evalua-
tion has been decidedly controversial. The concern, mostly articulated by
judges, is that it will be a threat to the independence of individual judges.68
However, there have been developments in some recognition judiciaries
(United States,69 Australia70) and it is on the agenda in others (England
and Wales).
iii. Resources
Traditionally, the literature on resources has been framed as a subfield:
‘court administration’.71 While this approach has been useful,72 it may
have the unintended consequence of marginalizing some key questions
about the regulation of judges, by suggesting that this is essentially a
bureaucratic/technical/managerialist concern. Our regulatory pyramid


suggests that, in fact, analyses of resources are an essential component

of any assessment of a judiciary. Resources – their quantity, quality
and allocation – are intimately connected to the values we espouse, the
processes we establish and the outcomes we desire. Indeed, the issues of
resources often underpin many of the challenges and controversies of
regulation. This has been demonstrated by the contributors on several
fronts.
Court budgets The chapters illustrate that court budgets have been an
especially thorny issue in many jurisdictions. Not only is there the obvious
question of what percentage of a nation’s GDP should be allocated to the
judiciary, but also who should control and manage it.
This has led to significant tensions between judiciaries and other
branches of government and required a variety of forms of regulation
ranging from external regulation, through co-regulation to self-regulation
(Australia, Brazil, Canada, Croatia, England and Wales, Ireland, Italy,
Portugal, Russia). It also raises questions of independence, transparency,
accountability and efficiency and has a direct impact on whether the
public can have confidence in its judiciary.
The case studies also suggest that in some jurisdictions there has been
an increase in the resources being allocated to judiciaries (China, Croatia,
Russia) while in others there have been decreases (Australia, Canada,
England and Wales, Ireland).
Numbers of judges It will be difficult for the general public to have

confidence in its judiciary if there are not enough judges to respond to
public expectations, and sufficient numbers to deliver justice in a timely
manner. However, the chapters indicate that this is a difficult issue to
address. The idea that this can be assessed through some ratio of judges
to general population ignores the existence of differences in legal cultures.
Some cultures are more litigation oriented and therefore expect or require
greater numbers of judges (United States, India, Ireland, Israel); others
are litigation averse (China, Japan) and therefore require or expect lesser
numbers of judges.
There is also the complex question of the suitable proportionality of
judges within the system, between ‘superior and inferior’ judges. The
problem is that, given the politics within the judiciary, there may be more
than enough superior court judges but an under-supply of inferior judges,
the ‘coalface judges’, thereby undermining public confidence (Brazil).
Salaries and pensions Salaries and pensions are a key regulatory issue
for several reasons. First and most obviously, they have an impact on the


quality of judges. In jurisdictions where judges are insufficiently remuner-

ated, there are problems of both recruitment and retention (China).
Second, adequate salaries are said to be essential to ensure both
independence and impartiality and as a bulwark against corruption and
bribery (China, India, Italy, Russia).
Third, there are wide variations in how judges are compensated. It is not
just the fact that some countries can afford and choose to pay their judges
more than others; it is also the issue of how well they are compensated
in proportion to the general population. In some jurisdictions they are
among the highest earners (Brazil, Canada, England and Wales, Ireland,
Italy); in others they are in the middle (Croatia, Germany, United States);
while in others, they are relatively poorly paid (China).
Fourth, there is also the topic of salary security. The value of independ-
ence has sometimes been deployed to assert that a judge’s salary cannot
be reduced or frozen by governments, and in fact has been elevated to
constitutional status in some jurisdictions (Canada, Ireland, Italy, South
Africa). However, in other jurisdictions, drawing on the principles of
accountability and efficiency, such reductions are defensible so long as
they are not particularly targeted at judges and part of other necessary
austerity measures (Ireland). One regulatory response that has been
adopted in several jurisdictions is to refer such matters to some form of
‘independent tribunal’ (Australia, Canada).
Physical infrastructure Physical infrastructure is closely connected to

the issue of court budgets, as previously discussed. If a judiciary does not
have adequate physical infrastructure, it may be difficult to recruit suit-
able candidates or to deliver adequate dispute resolution services. Both of
these weaknesses can contribute to undermining public confidence in the
judiciary.
Support staff Similar to physical infrastructure, adequate support staff

are essential to enable judges to fulfil their responsibilities. Judges are but
one part of a larger bureaucratic system and are dependent upon others to
assist them in the performance of their duties (Croatia, India, Portugal).
Once again, public confidence is at stake.
Another aspect of the support staff issue is raised by the increas-
ing demands that are put on judges in some jurisdictions to become
administrators and managers in pursuit of greater effectiveness and

efficiency. This can lead to questions being raised as to whether such
judges do, in fact, have the requisite skills to fulfil such responsibilities
(England and Wales, Portugal).


Technological needs/supports Technological support is becoming an

increasingly high-profile issue.73 The combination of demands by govern-
ments for increased efficiency, coupled with greater technological capacity
on the part of many users of judicial services, has made technological
competency, training and support an important aspect of contemporary
judicial regulation (Croatia, India, New Zealand, Portugal). In part this is
a resource issue; in part it is an education issue; in part it is a competence
issue; and in part it may even be an appointments issue.
Security Although this is not an issue that is raised by many of the con-
tributors, it is a concern for many judges in various parts of the world.74
Threats to physical safety can impair the impartiality and independence of
individual judges and destabilize public confidence in the judiciary as an
institution.
iv. Outcomes
As we indicated in Section II, the values that a jurisdiction chooses to
prioritize, the processes it constructs and the resources it allocates are all
targeted to achieving some outcome, some public good. In the develop-
ment of their analyses or in their proposals for reform, all the contributors
seem to agree that public confidence in the judiciary can serve as a highly
generalized aspiration.
However, like the ‘reasonable person’ standard that is so pervasive
in common law legal reasoning, the ‘public confidence in the judiciary’
standard has its own challenges. Collectively, the chapters in this collec-
tion suggest a number of insights.
First, one way to think about public confidence is to inquire whether,
when it comes to controversial decisions, the judiciary receives high
ratings from the general public. There is some support for this approach
in several jurisdictions (India, Ireland, Japan, Portugal). The strength
of this approach is that it indicates that judges are in touch with the
dominant value structures of their community. The obvious weaknesses
are the danger of majoritarianism, and concerns about impartiality and
independence.
A second approach is to stand back a little from specific decisions,
and to ask whether generally speaking the judiciary generates public
confidence. Often this can be facilitated through a number of empirical
instruments including trust in the professions polls,75 justice indexes76
or anti-corruption reports.77 Several of the chapters make reference to
these indicators to some degree (Canada, Croatia, Ireland, Malaysia,
Russia, Singapore). Such instruments are very helpful because they
reveal perceptions not only from within a jurisdiction, but also from


without. However, like most quantitative studies, they can only reveal
so much.
A third perspective on public confidence that manifests itself in this
collection is somewhat more amorphous, but at the same time more deep-
seated. It is the question whether judges are considered to be pursuing a
public trust; whether they are fulfilling their part of the social contract
with society that in return for permitting them to exercise significant –
sometimes even enormous – power and authority, they are doing so in
the public interest. The essence of this approach is that the judges are
competent and efficient in delivering impartial justice. Again a number
of chapters reflect this theme, including those on Australia, England and
Wales, and Singapore. The strength of this approach is that it captures the
particular, essentially fiduciary, nature of the role of judges in the body
politic. The weakness is its manifest indeterminacy.
However, this leads to a fourth insight generated by this collection, that
is, public confidence has an almost alchemical quality. By this we mean
that no one element can determine the existence, extent or intensity of
public confidence in the judiciary. Rather, it seems that it is a complex
combination of elements that fosters public confidence. Not only is public
confidence dependent upon the mix of processes developed for the regula-
tion of judges and the resources allocated to support those processes, it is
also contingent upon the values that are embraced by a particular juris-
diction. Moreover, because, as we have seen, these values can vary from
jurisdiction to jurisdiction, the elements that constitute public confidence
can also vary from jurisdiction to jurisdiction. This means that careful
attention needs to be paid to the larger social, economic, cultural, political
and normative context in which each judiciary is located, and that there
are no easy ‘off the shelf ’ formulas that can guarantee public confidence.
Fifth, and finally, many of the chapters indicate that public confidence
does not remain stable. As social values shift, so too do the determinants
of public confidence (Australia, Canada, Croatia, England and Wales,
Ireland). What might nurture and reinforce public confidence at one
moment in the history of a particular jurisdiction may no longer be appro-
priate or sufficient at a later moment. Local, regional and global dynam-
ics are in a constant state of flux and public confidence is protean. This
means that those who are responsible for the regulation of judges need
to be aware of and responsive to changing social values, and flexible and
imaginative in reworking the compound.


IV. JUDGES AND REGULATORY THEORY
Finally we suggest that this collection demonstrates each of the five major
themes of regulatory theory which we identified in Section II of this
Introduction.
A. Regulation Is an Inherently Normative and Programmatic Exercise
Our contributors have identified various norms that inform current

regulatory mechanisms or drive the desire for reform. As the foregoing
discussion of public confidence in the judiciary vividly illustrates, regula-
tion is about a great deal more than improving processes or the efficient
allocation of resources – it is about the construction of the good society,
and the expectations of judges in such a society. This requires the careful
calibration of a number of values. Judicial regulation is part of the art of
statecraft.
B. Regulation Is Complex
Every contributor has identified that the regulation of judges is a highly

complex phenomenon with multiple moving parts. Many have also
emphasized the interplay of both formal and informal dynamics and the
differences between the status and functions of the judiciary on paper,
compared to the reality on the ground.
Complexity has also led the contributors to identify a number of
paradoxes. In Singapore, even though there is no public code of conduct,
there is high public confidence. In Russia, despite the fact that courts are
relatively accessible, affordable and efficient, that increasing numbers
of people are utilizing the courts and that citizens are having significant
success in suing their government, public confidence is low. In England
and Wales, despite the justification for moving to a more open and inclu-
sive system of appointments, the desired goal of increased diversity has
failed to materialize. In China, despite the hegemony of the Communist
party, in response to both local and international norms, there is a rela-
tively well-functioning judiciary. In New Zealand there are monumental
formal changes, but it remains to be seen if there will be much actual
change.
C. Regulatory Analysis Is Highly Contextual
Any regulatory analysis of the judiciary must appreciate the particular

contexts in which judiciaries operate and the unique responsibilities of


judges. However, that uniqueness does not translate into a ‘ regulation-free’

zone either descriptively or normatively. It would be a serious mistake to
ignore the practices and insights from regulation in other fields; doing so
may threaten the very outcomes that the judiciary is intended to achieve.
Instead, those lessons should be considered in light of the specific con-
textual variables of the judiciary. Our contributors have shown that such
variables can be traditional and cultural, but they can also be driven by
global or regional dynamics. Other contextual variables may relate to the
power or status of the judiciary within society and its ability to retain exist-
ing regulatory structures and resist external calls for reform.
D. Hybridity Is the Leitmotif of Regulation
No judicial system has opted for a singular regulatory regime. Rather,

to varying degrees, they have deployed a complex matrix of regulatory
mechanisms that often overlap, intersect and intertwine. Multiple actors
are involved. Most systems have elements of self-, collaborative and exter-
nal regulation. This can, of course, lead to tensions, contradictions and
challenges, but it can also lead to more effective regimes.
E. Change, Flux and Innovation
The metaphor of a regulatory pyramid has been deployed to identify the

multiplicity of variables in play in the regulation of judges, and to empha-
size their interconnectedness and interdependence. All of the contributors
have argued that each jurisdiction has experienced significant changes and
challenges, some of which are quite radical. They also suggest that changes
in one aspect of the regime can have an impact on other parts.
One particularly significant theme is the contrast between jurisdictions
where there has been significant openness to change and others where
there has been resistance. Examples of the former are Brazil, China,
England and Wales, New Zealand and South Africa, while examples of the
latter are Australia, Canada, Israel, Italy and Russia. Whether one agrees
or disagrees with reform initiatives will inevitably depend upon the values
one endorses and the outcomes sought.
V. CONCLUSION
To conclude, this collection of essays makes four key points. First,

while the very idea of ‘regulating judges’ might irritate some people
(especially some judges), the contributors confirm that the judiciary is


highly regulated both as individuals and as an institution. Second, given

this reality, the focus of our energy should shift from debating whether
to regulate judges, to addressing the best practices and processes for the
regulation of judges to ensure that they fulfil the public trust. This involves
assessing the myriad of ways in which judges are in fact regulated and ana-
lysing and evaluating the extent to which different regulatory sub-regimes
advance or impede desired regulatory outcomes. Third, there is a tendency
in most jurisdictions to believe that the regulatory regime currently in
place tends to approximate the ideal, and that change is risky, even
dangerous. However, this book suggests that change is inevitable, that
there are multiple regulatory options, and that good judicial governance
is a constant work in progress. Fourth, our proposed regulatory pyramid
can serve as a helpful (if necessarily imperfect) heuristic for description,
analysis, assessment and critique as we pursue the improved regulation of
judiciaries around the world.
NOTES
1. See eg Neal Tate and Torbjon Vallender (eds), The Global Expansion of Judicial Power
(New York University Press 1995); Kate Malleson, The New Judiciary: The Effects of
Expansionism and Activism (Ashgate 1999); Carlo Guarnieri and Patrizia Pederzoli, The
Power of Judges: A Comparative Study of Courts and Democracy (Oxford University
Press 2002); S Gloppen, B Wilson, R Gargarella, M Kinander and E Skaar, Courts and
Power in Latin America and Africa (Palgrave Macmillan 2010); Diana Kapiszewski,
Gordon Silverstein and Robert A Kagan (eds), Consequential Courts: Judicial Roles in
Global Perspective (Cambridge University Press 2013).
2. See eg Daniel Klerman and Paul Mahoney, ‘The Value of Judicial Independence:
Evidence from Eighteenth Century England’ (2005) 7 American Law and Economics
Review 1; Lars P Feld and Stefan Voigt, ‘Economic Growth and Judicial Independence:
Cross Country Evidence Using a New Set of Indicators’ (2003) CESIFO Working
Paper No 906 <http://ssrn.com/abstract=395403> accessed 25 February 2016.
3. See eg Guy Canivet, Mads Andenas and Duncan Fairgrieve (eds), Independence,
Accountability and the Judiciary (British Institute of International and Comparative
Law 2006); Malcolm Feeley, Lucien Karpik and Terrance Halliday, Fighting for
Political Freedom: Comparative Studies in the Legal Complex and Political Liberalism
(Hart 2007); Aharon Barak, The Judge in a Democracy (Princeton University Press
2008); Albie Sachs, The Strange Alchemy of Life and Law (Oxford University Press
2011); Tom Bingham, The Business of Judging: Selected Essays and Speeches, 1985–89
(Oxford University Press 2000).
4. C Larkins, ‘Judicial Independence and Democratization: A Theoretical and Conceptual
Analysis’ (1996) 44 American Journal of Comparative Law 605.
5. Richard Mohr, ‘Local Court Reforms and “Global” Law’ (2007) 3 Utrecht LR 41.
6. See eg Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada
(2nd edn, Thompson 2004); Ran Hirschl, Towards Juristocracy: The Origins and
Consequences of the New Constitutionalism (Harvard University Press 2007); Gerald
Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (2nd edn,
University of Chicago Press 2008).
7. See eg Carlo Guarnieri and Patrizia Pederzoli, The Power of Judges: A Comparative


Study of Courts and Democracy (Oxford University Press 2002); Siri Gloppen, Roberto
Gargarella and Elin Skaar (eds), Democratization and the Judiciary: the Accountability
Function of Courts in a New Democracy (Frank Cass 2004); John Bell, Judiciaries within
Europe: A Comparative Review (Cambridge University Press 2006); Daniela Piana,
Judicial Accountabilities in the New Europe from Rule of Law to Quality of Justice
(Ashgate 2010); HP Lee (ed), Judiciaries in Comparative Perspective (Cambridge
University Press 2011); Anja Seibert-Fohr (ed), Judicial Independence in Transition
(Springer 2012).
8. Not all the contributors to this book would self-describe as pragmatists, some might
be boosters, others sceptics. However, they have all agreed to participate because they
agree that a discussion of judicial regulation is warranted and potentially insightful.
9. See eg Shimon Shetreet, Judges on Trial: The Independence and Accountability of the
English Judiciary (North Holland Publishing Company 1976); Roberts Stevens, The
Independence of the Judiciary (Oxford University Press 1993); Martin L Friedland, A
Place Apart: Judicial Independence and Accountability in Canada (Canadian Judicial
Council 1995); Stephen Burbank and Barry Friedman, Judicial Independence at the
Crossroads: An Interdisciplinary Approach (Sage 2002); Guarnieri and Pederzoli (n
7); Canivet (n 3); Gloppen et al (n 7); Andrew LeSueur, ‘Developing Mechanisms for
Judicial Accountability in the UK’ (2004) 24 Legal Studies 73; Sanford Levinson, ‘The
Role of the Judge in the 21st Century: Identifying “Independence”’ (2006) 86 BUL
Rev 1297; Jack Beatson, ‘Judicial Independence and Accountability: Pressures and
Opportunities’ (2008) Judicial Review 1; Nuno Garoupa and Tom Ginsberg, ‘The
Comparative Law and Economics of Judicial Councils’ (2009) 27 Berkeley Journal of
International Law 53; Philip Langbroek, ‘Administering Court and Judges: Rethinking
the Tension between Accountability and Independence of the Judiciary’ (Inaugural
lecture, Utrecht University, 20 October 2009); Daniela Piana, ‘Beyond Judicial
Independence: Rule of Law and Judicial Accountabilities in Assessing Democratic
Quality’ (2010) 9 Comparative Sociology 40; Lee (n 7); Shimon Shetreet and Christopher
Forsyth (eds), The Culture of Judicial Independence: Conceptual Foundations and
Practical Challenges (Martinus Nijhoff 2012); Seibert-Fohr (n 7); Shimon Shetreet and
Sophie Turenne, Judges on Trial: The Independence and Accountability of the English
Judiciary (2nd edn, Cambridge University Press 2013).
10. See also Gloppen et al (n 1); Vicki Jackson, ‘Judicial Independence: Structure, Context,
Attitude’ in Seibert-Fohr (n 7).
11. John Braithwaite, Cary Conglianese and David Levi- Faur, ‘Can Regulation and
Governance Make a Difference’ (2007) 1(1) Regulation and Governance 1; Robert
Baldwin, Martin Cave and Martin Lodge (eds), The Oxford Handbook of Regulation
(Oxford University Press 2010).
12. See generally the journal Regulation and Governance.
13. Hugh Collins, Regulating Contracts (Oxford University Press 2002).
14. Neil Gunningham and Peter Grabosky, Smart Regulation: Designing Environmental
Policy (Oxford University Press 1998).
15. Mark Findley and Wei Lim, Regulatory Worlds: Cultural and Social Perspectives when
North Meets South (Edward Elgar Publishing 2014).
16. Christopher Hood and Martin Lodge, ‘Pavlovian Innovation, Pet Solutions and
Economizing on Rationality: Politicians and Dangerous Dogs’ in Julia Black, Martin
Lodge and Mark Thatcher (eds), Regulatory Innovation: A Comparative Analysis
(Edward Elgar Publishing 2005).
17. See eg Jacinth Jordana and David Levi- Faur (eds), The Politics of Regulation:
Institutions and Regulatory Reforms for the Age of Government (Edward Elgar Publishing
2005); GB Doern, MJ Prince and RJ Schulz, Rules and Unruliness: Canadian Regulatory
Democracy, Governance, Capitalism and Welfarism (McGill-Queens University Press
2014).
18. John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge University
Press 2000).


19. WB Gallie, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian

Society 167.
20. Black et al, Regulatory Innovation (n 16).
21. Baldwin et al (n 11); Jordana and Levi-Faur (n 17).
22. Braithwaite et al (n 11); Christine Parker, ‘Twenty Years of Responsive Regulation: An
Appreciation and Appraisal’ (2013) 7 Regulation and Governance 2.
23. Baldwin et al (n 11).
24. Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation
Debate (Oxford University Press 1992).
25. Gunningham and Grabosky (n 14).
26. Christine Parker, The Open Corporation: Effective Self- Regulation and Democracy
(Cambridge University Press 2002).
27. Robert Baldwin and Julia Black, ‘Really Responsive Regulation’ (2008) 71 Modern L
Rev 59.
28. Bridget Hutter, The Attractions of Risk-Based Regulation: Accounting for the Emergence
of Risk Ideas in Regulation (ESRC Centre for Analysis of Risk and Regulation 2005).
29. Christie Ford, ‘Principles-Based Securities Regulation in the Wake of the Global
Financial Crisis’ (2010) 55 McGill L Rev 257.
30. Andrew Hopper and Gregory Treverton- Jones, Outcomes- Focused Regulation: A
Practical Guide (Law Society 2011).
31. Christine Parker and Viebieke Nielsen (eds), Explaining Compliance: Business Responses
to Regulation (Edward Elgar Publishing 2011).
32. Ayres and Braithwaite (n 24); Robert Baldwin, Martin Cave and Martin Lodge,
Understanding Regulation: Theory, Strategy and Practice (2nd edn, Oxford University
Press 2011).
33. Jordana and Levi-Faur (n 17).
34. Parker and Nielsen (n 31).
35. Malcolm Sparrow, The Regulatory Craft: Controlling Risks, Solving Problems and
Managing Compliance (Brookings Institution Press 2000).
36. See eg Baldwin et al (n 11); Bärbel R Dorbeck-Jung, Mirjan, Oude Vrielink, Jordy
F Gosselt, Joris J Van Hoof and Menno DT De Jong, ‘Contested Hybridization
of Regulation: Failure of the Dutch Regulatory System to Protect Minors from
Harmful Media’ (2010) 4(2) Regulation and Governance; David Levi- Faur (ed),
Oxford Handbook of Governance (Oxford University Press 2012); Andrew Murray and
Colin Scott, ‘Controlling the New Media: Hybrid Responses to New Forms of Power’
(2002) 65 Mod L Rev 491.
37. Baldwin and Black (n 27).
38. ibid.
39. Doern et al (n 17).
40. Ayres and Braithwaite (n 24).
41. David Osborne and Ted Gaebler, Reinventing Government: How the Entrepreneurial
Spirit is Transforming the Public Sector (Plume 1993).
42. John Braithwaite and Christine Parker, ‘Regulation’ in Peter Cane and Mark Tushnet
(eds), The Oxford Handbook of Legal Studies (Oxford University Press 2004).
43. See eg Ayres and Braithwaite (n 24); Jordana and Levi-Faur (n 17); Baldwin et al (n 32).
44. Julia Black, ‘Learning from Regulatory Disasters’ (2014) 10(3) Policy Quarterly 3.
45. Black et al (n 20).
46. In this book, we focus on national-level judiciaries. There are, of course, regional and
international judiciaries such as the European Court of Justice or the International
Criminal Court. We believe that the regulatory pyramid may also have resonance for
such courts, but we have deliberately decided not to pursue that project in this volume
of essays.
47. JuriGlobe World Legal Systems Research Group, ‘Alphabetical Index of 192 United
Nations Member States and Corresponding Legal Systems’ (no date) <www.juriglobe.
ca/eng/syst-onu/index-alpha.php> accessed 21 February 2016.


48. See eg Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics,
and Violence Against Women of Color’ (1991) 43(6) Standard L Rev 1241; Bruce
MacDougall, ‘The Direct Voice in Legal Discussions on Equality: An Essay’ (2011)
44(1) UBC L Rev 181; Kimberle Crenshaw, On Intersectionality: Essential Writings
(Perseus Distribution Services 2012).
49. See eg Parker (n 22).
50. See also Daniela Piana, Judicial Accountabilities in the New Europe: From Rule of Law
to Quality of Justice (Ashgate 2010).
51. See also Wim Voermans, ‘Judicial Transparency Furthering Public Accountability
for New Judiciaries’ (2007) 3(1) Utrecht LR 148; D Broeders, C Prins, H Griffioen,
P Jonkers, M Bokhorst and M Sax (eds.) et al, Scope For A More Transparent Justice
System (Amsterdam University Press 2013).
52. The Ethics in Government Act of 1978 (2006) 5 USC app 4 ss 101–11.
53. Council of Europe, Resolution (2002) 12 (18 September 2002).
54. ibid.
55. See also Richard Schauffler, ‘Judicial Accountability in the US State Courts: Measuring
Court Performance’ (2007) 3(1) Utrecht LR 112.
56. See also Shetreet and Turenne (n 9) 5–10.
57. See generally Michael J Trebilcock and Barry J Reiter, ‘Licensure in Law’ in R Evans
and M Trebilcock (eds), Lawyers and the Consumer Interest (Butterworths 1982).
58. See also Livingston Armytage, Educating Judges: Towards Improving Justice: A Survey
of Global Practice (Brill 2015).
59. See also Richard Devlin, C Adèle Kent and Susan Lightstone, ‘The Past,
Present . . . and Future (?) of Judicial Ethics Education in Canada’ (2013) 16(1) Legal
Ethics 1.
60. See eg G Sykes (ed), Courting The Media: Contemporary Perspectives On Media And
Law (Nova 2010); Ragna Aarli, ‘Independent Judges and their Relationship with
the Media’ in Nils Engstad, Astrid Laerdal Froseth and Bard Tonder (eds), The
Independence of Judges (Eleven International Publishing 2014) 327.
61. See eg Dahlia Lithwick, ‘The Souter Factor: What Makes Tough Conservative Judges
Go Soft?’, Slate (3 August 3005) <www.slate.com/articles/news_and_politics/jurispru
dence/2005/08/the_souter_factor.html> accessed 21 February 2016.
62. WS Hodge, ‘The Citadel of Judicial Immunity’ [1978] NZLJ 207; Shetreet and Turenne
(n 9) 5.
63. See further A Olowofoyeku, Suing Judges: A Study Of Judicial Immunity (Clarendon
Press 1993).
64. See more generally, Francesci Contini, Sharyn Roach Anleu and David Rottman,
‘Evaluating Judicial Performance: Editors’ Introduction’ (2014) 4 Oñati Socio-Legal
Series 836.
65. See also Richard Mohr and F Contini, ‘Judicial Evaluation in Context: Principles,
Practices and Promise in Nine European Countries’ (2007) 1 European Journal of Legal
Studies 1.
66. Richard Mohr and F Contini, ‘Conflicts and Commonalities in Judicial Evaluation’
(2014) 4(5) Oñati Socio-Legal Studies 843.
67. See eg Yohah Jeremy Bob, ‘Bar Association Publishes 1st Survey on Judges in 10
Years’, Jerusalem Post (Jerusalem, 12 January 2015) <www.jpost.com/Israel-News/
Bar-Association-publishes-1st-survey-on-judges-in-10-years-387486> accessed 1 March
2016; Doron Barzilay, ‘Judicial Evaluation 2014 – An Essential Tool to Strengthen the
Judiciary and Restore Public Trust’, The Jerusalem Post (Jerusalem, 14 December 2014)
<www.jpost.com/Opinion/Judicial-Evaluation-2014-an-essential-tool-to-strengthen-
the-judiciary-and-restore-public-trust-384625> accessed 21 February 2016.
68. Troy Riddell, Lori Hausegger and Matthew Hennigar, ‘Evaluating Federally Appointed
Judges in Canada: Analyzing the Controversy’ (2012) 50 Osgoode Hall LJ 403.
69. RW Berch and EN Bass, ‘Judicial Performance Review in Arizona: A Critical
Assessment’ (2014) 4(5) Oñati Socio-Legal Studies 927.


Another random document with
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neither any man can hold nor any man can give. No man can
lawfully govern himself according to his own will, much less
can one person be governed by the will of another. We are all
born in subjection, all born equally, high and low, governors
and governed, in subjection to one great, immutable,
preëxistent law, prior to all our devices, and prior to all our
contrivances, paramount to all our ideas and all our
sensations, antecedent to our very existence, by which we
are knit and connected in the eternal frame of the universe,
out of which we cannot stir.
Extract from President Wilson’s Inaugural Address:
We shall deal with our economic system as it is and as it

may be modified, not as it might be if we had a clean sheet of
paper to write upon; and step by step we shall make it what it
should be, in the spirit of those who question their own
wisdom and seek counsel and knowledge, not shallow self-
satisfaction or the excitement of excursions whither they
cannot tell. Justice, and only justice, shall always be our
motto.
And yet it will be no cool process of mere science. The
nation has been deeply stirred, stirred by a solemn passion,
stirred by the knowledge of wrong, of ideals lost, of
government too often debauched and made an instrument of
evil.
The feelings with which we face this new age of right and
opportunity sweep across our heartstrings like some air out of
God’s own presence, where justice and mercy are reconciled
and the judge and the brother are one.
We know our task to be no mere task of politics, but a task
which shall search us through and through, whether we be
able to understand our time and the need of our people,
whether we be indeed their spokesmen and interpreters,
whether we have the pure heart to comprehend and the
rectified will to choose our high course of action. This is not a
day of triumph; it is a day of dedication. Here muster, not the
forces of party, but the forces of humanity. Men’s hearts wait
upon us; men’s lives hang in the balance; men’s hopes call
upon us to say what we will do.
Who shall live up to the great trust? Who dares fail to try?
I summon all honest men, all patriotic, all forward-looking
men, to my side.
God helping me, I will not fail them, if they will but counsel
and sustain me!
SELECTIONS FOR PART FOUR

To gain control over public speech, to learn to express himself well
on his feet, the speaker must both be constantly watchful over his
every-day conversation and exercise himself much in writing. Only
so can he make his tongue obey his will.-Genung.
If then the power of speech is a gift as great as any that can be
named,—if the origin of language is by many philosophers even
considered to be nothing short of divine,—if by means of words the
secrets of the heart are brought to light, pain of soul is relieved,
hidden grief is carried off, sympathy conveyed, counsel imparted,
experience recorded, and wisdom perpetuated,—if by great authors
the many are drawn up into unity, national character is fixed, a
people speaks, the past and the future, the East and the West are
brought into communication with each other,—if such men are, in a
word, the spokesmen and prophets of the human family,—it will not
answer to make light of Literature or to neglect its study; rather we
may be sure that, in proportion as we master it in whatever
language, and imbibe its spirit, we shall ourselves become in our
own measure the ministers of like benefits to others, be they many or
few, be they in the obscurer or the more distinguished walks of life,—
who are united to us by social ties, and are within the sphere of our
personal influence.
—Cardinal Newman.
A VISION RISES
By Robert G. Ingersoll
A vision of the future rises.... I see a world where thrones have
crumbled and where kings are dust, the aristocracy of idleness has
perished from the earth.
I see a world without a slave, man at last is free. Nature’s forces
have by science been enslaved, lightning and light, wind and wave,
frost and flame, and all the secret subtle powers of the earth and air
are the tireless toilers for the human race.
I see a world at peace, adorned with every form of art, with
music’s myriad voices thrilled, while lips are rich with words of love
and truth; a world in which no exile sighs, no prisoner mourns; a
world on which the gibbet’s shadow does not fall; a world where
labor reaps its full reward, where work and worth go hand in hand,
where the poor girl, trying to win bread with a needle—the needle
that has been called “the asp for the breast of the poor”—is not
driven to the desperate choice of crime or death or suicide or shame.
I see a world without the beggar’s outstretched palm, the miser’s
heartless, stony stare, the piteous wail of want, the livid lips of lies,
the cruel eyes of scorn.
I see a race without disease of flesh or brain—shapely and fair,
married harmony of form and function, and as I look, life lengthens,
joy deepens, love canopies the earth; and over all in the great dome
shines the eternal star of human hope.
CREED OF AMERICANISM
I have faith that this government of ours was divinely ordained to
disclose whether men are by nature fitted or can by education be
made fit for self-government; to teach Jew and Greek, bondman and
free, alike, the essential equality of all men before the law and to be
tender and true to humanity everywhere and under all
circumstances; to reveal that service is the highest reward of life....
I believe that the world, now advancing and now retreating, is
nevertheless moving forward to a far-off divine event wherein the
tongues of Babel will again be blended in the language of a common
brotherhood; and I believe that I can reach the highest ideal of my
tradition and my lineage as an American—as a man, as a citizen and
as a public official—when I judge my fellowmen without malice and
with charity, when I worry more about my own motives and conduct
and less about the motives and conduct of others. The time I am
liable to be wholly wrong is when I know that I am absolutely right....
I believe there is no finer form of government than the one under
which we live and that I ought to be willing to live or to die, as God
decrees, that it may not perish from off the earth through treachery
within or through assault without; and I believe that though my first
right is to be a partisan, that my first duty, when the only principles
on which free government can rest are being strained, is to be a
patriot and to follow in a wilderness of words that clear call which
bids me guard and defend the ark of our national covenant.—From
“Vice-President Marshall’s Inaugural Address.”
WHAT IS OUR COUNTRY

By Governor Newton Booth
(Extract from speech delivered at Sacramento, Calif., August 14,
1862.)
What is our country? Not alone the land and the sea, the lakes
and rivers, and valleys and mountains; not alone the people, their
customs and laws; not alone the memories of the past, the hopes of
the future: it is something more than all these combined. It is a divine
abstraction. You cannot tell what it is; but let its flag rustle above your
head, you feel its living presence in your hearts. They tell us that our
country must die; that the sun and the stars will look down upon the
great republic no more; that already the black eagles of despotism
are gathering in our political sky; that, even now, kings and emperors
are casting lots for the garments of our national glory. It shall not be!
Not yet, not yet, shall the nations lay the bleeding corpse of our
country in the tomb. If they could, angels would roll the stone from
the mouth of the sepulcher. It would burst the casements of the
grave and come forth a living presence, “redeemed, regenerated,
disenthralled.” Not yet, not yet shall the republic die! The heavens
are not darkened, the stones are not rent! It shall live, the incarnation
of freedom; it shall live, the embodiment of the power and majesty of
the people. Baptized anew, it shall stand a thousand years to come,
the Colossus of the nations,—its feet upon the continents, its scepter
over the seas, its forehead among the stars!—From “Notable
Speeches by Notable Speakers of the Greater West,” by kind
permission of the publishers; The Harr Wagner Company, San
Francisco.
PIONEER CELEBRATION SPEECH

By Frederick Palmer Tracey
(Delivered before the society of California Pioneers, September 9,
1858, at their celebration of the eighth anniversary of the admission
of the state into the Union.)
Mr. President, and Members of the Society of California Pioneers:
The great Napoleon said, “I will review at Cherbourg the marvels of
Egypt,” and that saying, just now inscribed upon the pedestal of his
statue standing amidst the new and massive fortifications of
Cherbourg, startles England as a menace of war. England may rest
in quiet. There will be no attempt to renew the marvels of
Bonaparte’s Egyptian campaign. But both Napoleons may have
dreamed that in the gigantic moles of Cherbourg they might rival the
grandeur and strength of the Pyramids, and in its sculptures the
glorious beauty of Memnon and the Sphinx. And, truly, the vast dead
marvels of Egypt’s architecture may be rivaled. Other tombs and
temples may be hewn in the rocks; other columns and obelisks may
rise in beauty; other sphinxes may in silence propose their eternal
riddles to other lands; and other pyramids may lift their mountain
forms over the hushed plains crouching at their feet. Greater marvels
even than Egypt ever saw may be born of necessity and science,
and not Cherbourg alone, but this and other lands may yet behold
them.
But who, in any age or country, or with any people, shall renew the
marvels of California, and give to the world a second example of a
nation so suddenly created, gifted with the strength of Hercules in its
cradle,—born in the purple of its empire that shall endure forever? A
little more than ten years ago, California lay in the indolence and
silence of that summer noonday in which she had been basking for
ages. A few idle villages slept by the shores of her bays; a few
squalid ranches dotted the interior with patches of wretched
cultivation. There were herds of cattle in her valleys, but they were
almost valueless for the want of a market. There were churches, but
their chiming bells woke only the echoes of a vast solitude. The sun
ripened only the harvest of wild oats on the hills, and the beasts of
prey made their lairs in security close by the abodes of men. Seldom
did the vaquero in his solitary rounds hear the dip of the oar upon
our rivers. Silence, deep and everlasting, brooded over all the land,
and the lone oaks on the hills appeared like sentinels keeping guard
around the sleeping camp of nature.
The cession of the country to the United States by the treaty of
Guadalupe Hidalgo, and the discovery of gold in the early part of the
year of 1848, changed the whole scene as if by the power of magic.
As in the naumachia of old time, the dry arena was instantly
converted into a great lake on which contending navies struggled for
the mastery; so, instantly on the discovery of gold, California was
filled with people as if they had risen from the earth. The port of San
Francisco was crowded with vessels. The rivers were alive with the
multitudes that made them their highway, and din of commerce
broke forever the silence of centuries. It seemed as if the people had
stolen the lamp of Aladdin, and wished for the creation, not of
palaces merely, but of royal cities, and an empire of which these
should be the chief places; and at their wish, the cities of our state
arose, not by slow, toilsome growth, but complete and princely at
their very birth. The rattle of the shovel and the pick was heard in
every mountain gorge, and a wide stream of gold flowed from the
Sierra to the sea. The plains, rejoicing in their marriage to industry,
bore fruitfully their yellow harvests. Villages, hamlets, farmhouses,
schools, and churches sprang up everywhere; wharves were built,
roads were opened; stage-coaches and steamers crowded all
profitable routes; lands, houses, and labor rose to an enormous
value; and plenty, with her blessings, crowned the rolling year.
I paint no exaggerated picture of this magical change. We have
seen it with our eyes; and though it seems like a dream, so is it
unlike anything in the history of the world, in the range of human
experience, or in the field where imagination is wont to revel. We
know that it is all true, and its truth is its greatest marvel.
Yet it is not to be concealed that we have reason to fear that
California’s future may not be as prosperous as her past. If free
institutions shall be established here in the simplicity of truth and
justice; if public morality shall be substituted for the wild, passionate
life of our earlier times; if industry and frugality shall expel indolence
and thriftlessness from among us; if the people shall be made to feel
that California is their home, and be controlled by the great ambition
of making it a home worth loving and defending; if we shall be united
for the promotion and protection of our own state interests, and shall
banish from among us all influence of those who do not belong to us,
—then indeed we cannot fail to secure a glorious future for our
young state. But if we fail in the great duties of upright men and
patriotic citizens, we can only expect to—
“Run anew the evil race the old nations ran;

And die, like them, of unbelief in God and wrong of man.”
That California has the material resources to make her not merely
one of the first, but the very first, of the states of the Union, no one
can doubt; but the fostering care of the general government, and the
exertion of all the energies of our own people will be required to
develop those resources and make our state what it is capable of
becoming. I have dreamed of the time when that great highway of
commerce around the Cape of Good Hope, opened to the world by
the Portuguese navigators of the fifteenth century, should be
abandoned, and long caravans of merchant ships, treading the
desert ocean that lies at our west, should bring to our wharves the
merchandise of China and the Indies, and give to us the profits of
that vast trade which has built so many of the cities of Europe and of
Asia; when along the great Atlantic and Pacific Railroad, from San
Francisco to St. Louis, and from St. Louis to the Atlantic seaboard,
the transit of this wealth of the world, like a turbid stream turned
through our miners’ sluice-boxes, should everywhere deposit gold as
it passed. If California and the general government shall ever be
aroused upon this subject, and this great railway—the mightiest in its
results of any enterprise ever projected by man—shall be completed,
a revolution will be accomplished in our state, the marvels of which
will be second only to those that accompanied our first settlement of
the territory. Our population, no longer stinted to a few hundred
thousand, will suddenly be counted by millions. Every valley will be
fat with grain, and the yellow harvest will wave on every hillside. The
hamlets will rise to villages, the villages to towns, and the towns to
regal cities. Like the redwoods of our mountains, the masts of the
vessels of all nations will be forests in our ports, and the white sails
in the offing shall flock together as white doves when they come
home to their nests. Then, capital will seek investment among us,
and enterprise and industry will add wealth to wealth. Then will the
hidden riches of the mines be explored, and larger and more secure
investments afford a profit that now is hardly dreamed of. Every
resource of the state will be developed, and California will become
the mistress of the Pacific, rivaling not merely the richest commercial
states of our own confederacy, but the most powerful maritime
nations that sit by the shores of the Atlantic.
Such California once was; such California yet may be. You,
pioneers, who meet to-day to celebrate the eighth anniversary of her
admission as a state of the Union,—you, and those whom you
represent, are the founders of this new commonwealth, and on the
direction you give her institutions and her enterprise her destiny for
good or evil will depend.
I congratulate you, Pioneers of California, on the proud position
you occupy.
“You are living, you are dwelling,

In a grand and awful time,
In an age on ages telling,
To be living is sublime.”
You are presiding at the birth of a nation; you shape its destinies
and mold its future according to your own will. Your works will speak
for you in the coming ages. If you make California glorious, you will
be immortal; if you make her base and vile, she will return her shame
on your own heads.
It was my lot, in 1848, to witness the Revolution that overturned
the throne of France, and drove Louis Philippe into exile, and I
thought it the fortune of a lifetime to be present at the downfall of a
great government. But how much more is the blood of ambition
stirred by the creation of an empire,—of an empire that for centuries
to come is to sit the undisputed mistress of these vast seas that
spread themselves at our feet!
Pioneers, the men who come after you will rule only the hour in
which they live. You are the masters of the approaching centuries.
They come bending like slaves at your feet, and wait to know your
pleasure. It is yours, if you will, to fill those centuries with the glory of
California and your own high renown. All that you do in these early
plastic times of the state will remain stamped upon her forever, and
you sit here, masters, while the monuments of your own immortal
fame are being built.
Pioneers of California, the eyes of the world are fixed upon this
young state; they are fixed upon you. A great trust is committed to
your hands by the events that have made you pioneers. Take care
that you discharge that trust with honor to yourselves, and so that
California may achieve the glorious destiny that is her due. Take care
that you so conduct the youth of this state, that, centuries hereafter,
your descendants may say proudly of their ancestors, “He came in
with the pioneers.”—From “Notable Speeches by Notable Speakers
of the Greater West,” by the kind permission of the publisher, the
Harr Wagner Company, San Francisco.
[Frederick Palmer Tracy was a California pioneer, and attorney-at-
law in San Francisco, and one of the founders of the Republican
party in California. He was an eloquent political speaker in the early
days when his party was in a hopeless minority. He was a member
of the California delegation to the Chicago convention which
nominated Abraham Lincoln for President of the United States, and
was appointed on the Committee on Platform and Resolutions. He
drafted the famous platform of that convention, which was adopted
by the committee as he wrote it, with only slight changes. He was
engaged in the Lincoln campaign to stump the state of New York,
and died during that campaign, worn out by exposure and loss of
sleep.]
THE REDWOODS
By W. H. L. Barnes
(Delivered at a midsummer “jinks” of the Bohemian Club of San
Francisco.)
The possessor of a name more ancient than the crusaders will
show you, in the land of his birth, ancestral trees that surround his
lordly domain, and proudly exhibit some gnarled and ugly oak, which
by him is associated with some distant event in his own family, or
with the history of the hoary races of the brave nation of which he
forms a part. Here his ancestors builded a castle before the Middle
Ages, with defensive moat and parapet, with keep and dungeon, all
long since fallen into ruin,—melted in the unperceived decay of ages,
or bruised into it by the vigor of the battering-ram of some gallant
and feudal company.
He will say to you, “All these are mine. They are part of my race,
and my race is of them.” But what are all his possessions—castle,
moat, dungeon, or gnarled oak—beside the ancient brotherhood of
venerable trees to which we have been admitted, and whose stately
silence we have been permitted to break? Our trees were old before
the Roman invaded Britain; old before the Saxon followed Hengist
and Horsa; old before the Vikings sailed the northern seas. For ages
piled upon ages, even before letters were known, before history
commenced to make its record of the doings of nations and races,
these trees and their ancestors builded and renewed their leafy
castles.
The groupings of the present monarchs of the forest show that
these are but the descendants of still more ancient growths; were
once nothing but saplings that sprung from the superabundant life of
some giant trunk long since vanished, and whose grave is sentineled
by his stalwart children. How shall we measure the vigor and force
which they possess? How shall we comprehend by what method the
stately body, ever rising in monumental force toward the skies, draws
its being from the deep and busy fingers of the roots, and from them
lifts the alchemized earth and water higher and still higher, until both
feed and nourish the smallest leaf and spear-point of the topmost
shaft,—spear-point that, in its turn, is destined in some future age to
become a stalwart trunk, crowding with its growth ever upward and
onward towards the stars?
Who shall tell how, through the eons of the long ago, these trees
have been silent and majestic watchers of the night and dawn and
day of the world’s life? How shall we conjecture how long they have
been welcoming the sun in his rising, and have caught his last and
lingering caress as he has disappeared in the glory of the evening
sky? How long have they been the vigil keepers of the night, and
watched the silent constellations sailing through the immensity of
space? Who shall tell us if these trees caught, perhaps, the earliest
song of the stars of the morning, while above and beyond them,
unnumbered comet and meteor have shone and vanished?
How came these trees to this continent? Have they ever lived and
burgeoned in some other happy land? or are they the fruit of one
sole and giant extravagance of nature, exulting in the uppermost
luxury of force, and reveling in the very fullness of all power? Shall
man solve the mystery? Nature is full of lessons yet to be learned,
but nowhere in air or earth or water is there more awe-inspiring
strangeness than in these great growths whose wonder we have
studied, but with study fruitless of revelation.
To me, during the days we spent in the forest, the contemplation of
the redwoods was never for a moment wearisome. I have looked up
along their marvelous length in the early morning, when the frondent
and topmost spear caught the first glimpse of the sun’s glory, and I
have seen his afternoon rays flashing and glinting on emerald bough
and purple trunk, and at last losing themselves in the depths of a
solemn and impenetrable shade. I have lain at night on the dry earth
and looked up at the closing vista of the dark boughs fretting the
moonlight and shutting out the sparkle of the stars, until their weird
shapes seemed summited in their very pathway; and I saw, when
Pan killed Care upon the mountain-side that overhung the grove,
such an illumination of the glory of the trees in purple and crimson
and scarlet as shall forever make the ablest effort of the scenic artist
stale, tawdry, unendurable.
THE SECOND INAUGURAL ADDRESS

By Abraham Lincoln
(Delivered from the steps of the Capitol at Washington, 1865.)
Fellow Countrymen: At this second appearing to take the oath
of the Presidential office there is less occasion for an extended
address than there was at first. Then a statement, somewhat in
detail, of a course to be pursued seemed very fitting and proper.
Now, at the expiration of four years, during which public declarations
have been constantly called forth on every point and phase of the
great contest which still absorbs the attention and engrosses the
energies of the nation, little that is new could be presented.
The progress of our arms, upon which all else chiefly depends, is
as well known to the public as to myself, and it is, I trust, reasonably
satisfactory and encouraging to all. With high hope for the future, no
prediction in regard to it is ventured.
On the occasion corresponding to this four years ago, all thoughts
were anxiously directed to an impending civil war. All dreaded it, all
sought to avoid it. While the inaugural address was being delivered
from this place, devoted altogether to saving the Union without war,
insurgent agents were in the city seeking to destroy it with war—
seeking to dissolve the Union and divide the effects by negotiation.
Both parties deprecated war, but one of them would make war rather
than let the nation survive, and the other would accept war rather
than let it perish, and the war came. One-eighth of the whole
population were colored slaves, not distributed generally over the
Union, but localized in the southern part of it. These slaves
constituted a peculiar and powerful interest. All knew that this
interest was somehow the cause of the war. To strengthen,
perpetuate, and extend this interest was the object for which the
insurgents would rend the Union by war, while the Government
claimed no right to do more than to restrict the territorial enlargement
of it.
Neither party expected for the war the magnitude or the duration
which it has already attained. Neither anticipated that the cause of
the conflict might cease when, or even before, the conflict itself
should cease. Each looked for an easier triumph, and a result less
fundamental and astounding. Both read the same Bible, and pray to
the same God, and each invokes His aid against the other. It may
seem strange that any men should dare to ask a just God’s
assistance in wringing their bread from the sweat of other men’s
faces; but let us judge not, that we be not judged. The prayer of both
could not be answered. That of neither has been answered fully. The
Almighty has His own purposes. Woe unto the world because of
offenses, for it must needs be that offenses come, but woe to that
man by whom the offense cometh. If we shall suppose that American
slavery is one of those offenses which, in the providence of God,
must needs come, but which having continued through His
appointed time, He now wills to remove, and that He gives to both
North and South this terrible war as the woe due to those by whom
the offense came, shall we discern there any departure from those
divine attributes which the believers in a living God always ascribe to
Him? Fondly do we hope, fervently do we pray, that this mighty
scourge of war may speedily pass away. Yet if God wills that it
continue until all the wealth piled by the bondsman’s two hundred
and fifty years of unrequited toil shall be sunk, and until every drop of
blood drawn by the lash shall be repaid by another drawn with the
sword, as was said three thousand years ago, so still it must be said,
that the judgments of the Lord are true and righteous altogether.
With malice toward none, with charity for all, with firmness in the
right as God gives us to see the right, let us finish the work we are in,
to bind up the nation’s wounds, to care for him who shall have borne
the battle, and for his widow and his orphans, to do all which may
achieve and cherish a just and a lasting peace among ourselves and
with all nations.
TOUSSAINT L’OUVERTURE
By Wendell Phillips
If I were to tell you the story of Napoleon, I should take it from the
lips of Frenchmen, who find no language rich enough to paint the
great captain of the nineteenth century. Were I to tell you the story of
Washington, I should take it from your hearts,—you who think no
marble white enough on which to carve the name of the father of his
country. But I am to tell you the story of a negro, Toussaint
L’Ouverture, who has left hardly one written line. I am to glean it from
the reluctant testimony of his enemies,—men who despised him
because he was a negro and a slave, hated him because he had
beaten them in battle.
Cromwell manufactured his own army. Napoleon, at the age of
twenty-seven, was placed at the head of the best troops Europe ever
saw. Cromwell never saw an army till he was forty; this man never
saw a soldier till he was fifty. Cromwell manufactured his own army
—out of what? England,—the best blood in Europe. Out of the
middle class of Englishmen,—the best blood of the island. And with it
he conquered what? Englishmen,—their equals. This man
manufactured his army out of what? Out of what you call the
despicable race of negroes, debased, demoralized by two hundred
years of slavery, one hundred thousand of them imported into the
island within four years, unable to speak a dialect intelligible even to
each other. Yet out of this mixed and, as you say, despicable mass,
he forged a thunderbolt, and hurled it at what? At the proudest blood
in Europe, the Spaniard, and sent him home conquered; at the most
warlike blood in Europe, the French, and put them under his feet; at
the pluckiest blood in Europe, the English, and they skulked home to
Jamaica. Now, if Cromwell was a general, this man was a soldier.
Now, blue-eyed Saxon, proud of your age, go back with me to the
commencement of the century, and select what statesman you
please. Let him be either American or European; let him have the
ripest training of university routine; let him add to it the better
education of practical life; crown his temples with the silver locks of
seventy years, and show me the man of Saxon lineage for whom his
most sanguine admirer will wreathe a laurel, rich as embittered foes
have placed on the brow of this negro,—rare military skill, profound
knowledge of human nature, content to blot out all party distinctions,
and trust a state to the blood of his sons,—anticipating Sir Robert
Peel fifty years, and taking his station by the side of Roger Williams,
before any Englishman or American had won the right; and yet this is
the record which the history of rival States makes up for this inspired
black of St. Domingo.
Some doubt the courage of the negro. Go to Hayti, and stand on
those fifty thousand graves of the best soldiers France ever had, and
ask them what they think of the negro’s courage.
I would call him Napoleon, but Napoleon made his way to empire
over broken oaths and through a sea of blood. This man never broke
his word. I would call him Cromwell, but Cromwell was only a soldier,
and the state he founded went down with him into his grave. I would
call him Washington, but the great Virginian held slaves. This man
risked his empire rather than permit the slave-trade in the humblest
village of his dominions.
You think me a fanatic, for you read history, not with your eyes, but
with your prejudices. But fifty years hence, when Truth gets a
hearing, the Muse of history will put Phocion for the Greek, Brutus
for the Roman, Hampden for England, Lafayette for France, choose
Washington as the bright consummate flower of our earlier
civilization, then, dipping her pen in the sunlight, will write in the clear
blue, above them all, the name of the soldier, the statesman, the
martyr, Toussaint L’Ouverture.
THE TWO GEORGES

By W. H. Rhodes
Between the years of our Lord 1730 and 1740, two men were born
on opposite sides of the Atlantic Ocean, whose lives were destined
to exert a commanding influence on the age in which they lived, as
well as to control the fortunes of many succeeding generations.
One was by birth a plain peasant, the son of a Virginia farmer; the
other an hereditary Prince, and the heir of an immense empire.
Go with me for one moment to the crowded and splendid
metropolis of England. It is the evening of the 4th of June, 1734.
Some joyful event must have occurred, for the bells are ringing
merrily, and the inhabitants are dressed in holiday attire. Nor is the
circumstance of a private nature, for banners are everywhere
displayed, the vast city is illuminated, and a thousand cannon are
proclaiming it from their iron throats. The population seems frantic
with joy, and rush tumultuously into each other’s arms, in token of a
national jubilee. Tens of thousands are hurrying along toward a
splendid marble pile, situated on a commanding eminence, near the
River Thames, whilst from the loftiest towers of St. James’s Palace
the national ensigns of St. George and the Red Cross are seen
floating on the breeze. Within one of the most gorgeously furnished
apartments of that royal abode, the wife of Frederic, Prince of Wales,
and heir apparent to the British Empire, has just been delivered of a
son. The scions of royalty crowd into the bed-chamber, and solemnly
attest the event as one on which the destiny of a great empire is
suspended. The corridors are thronged with dukes, and nobles, and
soldiers, and courtiers. A Royal Proclamation soon follows,
commemorating the event, and commanding British subjects
everywhere, who acknowledge the honor of Brunswick, to rejoice,
and give thanks to God for safely ushering into existence George
William Frederic, heir presumptive of the United crowns of Great
Britain and Ireland.
Just twenty-two years afterward that child ascended the throne of
his ancestors as King George the Third.
Let us now turn our eyes to the Western Continent, and
contemplate a scene of similar import, but under circumstances of a
totally different character. It is the 22nd of February, 1732. The
locality is a distant colony, the spot the verge of an immense,
untrodden and unexplored wilderness, the habitation a log cabin,
with its chinks filled in with clay, and its sloping roof patched over
with clapboards. Snow covers the ground, and a chill wintry wind is
drifting the flakes, and moaning through the forest. Two immense
chimneys stand at either end of the house, and give promise of
cheerful comfort and primitive hospitality within, totally in contrast
with external nature. There are but four small rooms in the dwelling,
in one of which Mary Ball, the wife of Augustine Washington, has just
given birth to a son. No dukes or marquises or earls are there to
attest the humble event. There are no princes of the blood to wrap
the infant in the insignia of royalty, and fold about his limbs the
tapestried escutcheon of a kingdom. His first breath is not drawn in
the center of a mighty capitol, the air laden with perfume, and
trembling to the tones of soft music and the “murmurs of low
fountains.” But the child is received from its mother’s womb by hands
embrowned with honest labor, and laid upon a lowly couch,
indicative only of a back-woodsman’s home and an American’s
inheritance. He, too, is christened George, and forty-three years
afterward took command of the American forces assembled on the
plains of old Cambridge.
But if their births were dissimilar, their rearing and education were
still more unlike.
From his earliest recollection the Prince heard only the language
of flattery, moved about from palace to palace, just as caprice
dictated, slept upon the cygnet’s down, and grew up in indolence,
self-will and vanity, a dictator from his cradle. The peasant boy, on
the other hand, was taught from his infancy that labor was
honorable, and hardships indispensable to vigorous health. He early
learned to sleep alone amid the dangers of a boundless wilderness,
a stone for his pillow, and the naked sod his bed; whilst the voices of
untamed nature around him sang his morning and his evening
hymns. Truth, courage and constancy were early implanted in his
mind by a mother’s counsels, and the important lesson of life was
taught by a father’s example, that when existence ceases to be
useful it ceases to be happy.
Early manhood ushered them both into active life; the one as king
over extensive dominions, the other as a modest, careful, and
honest district surveyor.
Having traced the two Georges to the threshold of their careers, let
us now proceed one step further, and take note of the first great
public event in the lives of each.
For a long time preceding the year 1753 the French had laid claim
to all the North American continent west of the Alleghany Mountains,
stretching in an unbroken line from Canada to Louisiana. The
English strenuously denied this right, and when the French
commandant on the Ohio, in 1753, commenced erecting a fort near
where the present city of Pittsburgh stands, and proceeded to
capture certain English traders, and expel them from the country,
Dinwiddie, Governor of Virginia, deemed it necessary to dispatch an
agent on a diplomatic visit to the French commandant and demand
by what authority he acted, by what title he claimed the country, and
order him immediately to evacuate the territory.
George Washington, then only in his twenty-second year, was
selected by the governor for this important mission.
It is unnecessary to follow him, in all his perils, during his wintry
march through the wilderness. The historian of his life has painted in
imperishable colors his courage, his sagacity, his wonderful coolness
in the midst of danger, and the success which crowned his
undertaking. Memory loves to follow him through the trackless wilds
of the forest, accompanied by only a single companion, and making
his way through wintry snows, in the midst of hostile savages and
wild beasts, for more than five hundred miles, to the residence of the
French commander. How often do we not shudder, as we behold the
treacherous Indian guide, on his return, deliberately raising his rifle,
and leveling it at that majestic form; thus endeavoring, by an act of
treachery and cowardice, to deprive Virginia of her young hero! And
oh! with what fervent prayers do we not implore a kind Providence to
watch over his desperate encounter with the floating ice, at midnight,
in the swollen torrent of the Alleghany, and rescue him from the
wave and the storm. Standing bareheaded on the frail craft, whilst in
the act of dashing aside some floating ice that threatened to engulf
him, the treacherous oar was broken in his hand, and he is
precipitated many feet into the boiling current. Save! oh, save him,
heaven! for the destinies of millions yet unborn hang upon that noble
arm!
Let us now recross the ocean. In the early part of the year 1764, a
ministerial crisis occurs in England, and Lord Bute, the favorite of the
British monarch, is driven from the administration of the government.
The troubles with the American colonists have also just commenced
to excite attention, and the young King grows angry, perplexed, and
greatly irritated. A few days after this, a rumor starts into circulation
that the monarch is sick. His attendants look gloomy, his friends
terrified, and even his physicians exhibit symptoms of doubt and
danger. Yet he has no fever, and is daily observed walking with
uncertain and agitated step along the corridors of the palace. His
conduct becomes gradually more and more strange, until doubt
gives place to certainty, and the royal medical staff report to a select
committee of the House of Commons that the King is threatened with
insanity. For six weeks the cloud obscures his mental faculties,
depriving him of all interference with the administration of the
government, and betokening a sad disaster in the future. His reason
is finally restored, but frequent fits of passion, pride and obstinacy
indicate but too surely that the disease is deep-seated, and a radical
cure impossible.
Not long after his return from the West, Washington was offered
the chief command of the forces about to be raised in Virginia, to
expel the French; but, with his usual modesty, he declined the
appointment, on account of his extreme youth, but consented to take
the post of lieutenant-colonel. Shortly afterward, on the death of
Colonel Fry, he was promoted to the chief command, but through no
solicitations of his own. Subsequently, when the war between France
and England broke out in Europe, the principal seat of hostilities was
transferred to America, and his majesty, George III, sent over a large
body of troops, under the command of favorite officers. But this was
not enough. An edict soon followed, denominated an “Order to settle
the rank of the officers of His Majesty’s forces serving in America.”
By one of the articles of this order, it was provided “that all officers
commissioned by the King should take precedence of those of the
same grade commissioned by the governors of the respective
colonies, although their commissions might be of junior date;” and it
was further provided, that “when the troops served together, the
provincial officers should enjoy no rank at all.” This order was
scarcely promulgated—indeed, before the ink was dry—ere the
Governor of Virginia received a communication informing him that
George Washington was no longer a soldier. Entreaties, exhortations
and threats were all lavished upon him in vain; and to those who, in
their expostulations, spoke of the defenseless frontiers of his native
state, he patriotically but nobly replied: “I will serve my country when
I can do so without dishonor.”
In contrast with this attitude of Washington, look at the conduct of
George the Third respecting the colonies, after the passage of the
Stamp Act. This act was no sooner proclaimed in America, than the
most violent opposition was manifested, and combinations for the
purpose of effectual resistance were rapidly organized from
Massachusetts to Georgia. The leading English patriots, among
whom were Burke and Barré, protested against the folly of forcing
the colonies into rebellion, and the city of London presented a
petition to the king, praying him to dismiss the Granville ministry, and
repeal the obnoxious act. “It is with the utmost astonishment,” replied
the king, “that I find any of my subjects capable of encouraging the
rebellious disposition that unhappily exists in some of my North
American colonies. Having entire confidence in the wisdom of my
parliament, the great council of the realm, I will steadily pursue those
measures which they have recommended for the support of the
constitutional rights of Great Britain.” He heeded not the memorable
words of Burke, that afterward became prophetic. “There are
moments,” exclaimed this great statesman, “critical moments in the
fortunes of all states, when they who are too weak to contribute to
your prosperity may yet be strong enough to complete your ruin.”
The Boston port bill passed, and the first blood was spilt at
Lexington.

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Cheltenham, UK • Northampton, MA, USA

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All rights reserved. No part of this publication may be reproduced, stored

Edward Elgar Publishing, Inc.

A catalogue record for this book

Library of Congress Control Number: 2016944291

This book is available electronically in the

ISBN 978 1 78643 078 6 (cased)

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1 Regulating judges: challenges, controversies and choices 1

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11 Decentralized regulation: reconciling inter-­branch tensions in

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Justice Richard Goldstone

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INTRODUCTION: THE CHALLENGE OF

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and democracy because they are unaccountable, elitist and susceptible to

This framework has generated an enormously rich, sophisticated and

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can lead to unnecessary and analytically unhelpful defensiveness and

I. CONTEMPORARY REGULATION THEORY AND

Regulation is a dynamic exercise in collective problem-­solving . . . the sustained

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goals with the intention of producing a broadly defined outcome or outcomes

Building upon this skeleton, a review of the literature suggests a number

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II. REGULATING JUDGES: A PYRAMID

The foregoing working definition of regulation, supported by the themes

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A. The Regulatory Pyramid: A Meta-­Level Analysis

As we have indicated, we propose that an analysis of a judiciary can be

Figure 1.1 Values

Figure 1.2 Processes

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Figure 1.3 Resources

The instantiation of foundational values through the creation of

1 Regulating judges: challenges, controversies and choices 1

11 Decentralized regulation: reconciling inter-branch tensions in

I. CONTEMPORARY REGULATION THEORY AND

Regulation is a dynamic exercise in collective problem-solving . . . the sustained

A. The Regulatory Pyramid: A Meta-Level Analysis

Now, of course, this regulatory pyramid is an ideal-type, a heuristic, a

B. Adding Substance/Getting Contextual: The Meso-Level Analysis

(1) Impartiality: decision making that is free from personal, social,

(1) institutional relations (eg constitutional, conventional or statutory)

III. DEPLOYING THE PYRAMID: THE CASE

of social harmony and economic growth. In Japan it is a deep-seated

emonstrated in this Introduction and by the contributions to this book, it