Rule of Law and the Criteria for Appointment of Judges: A Case for Judicial Virtues

Abstract

This article seeks to develop a case for a virtue-oriented (or aretaic) approach to the criteria for appointing judges. It will argue for the usefulness of judicial virtue by showing its theoretical relevance for describing and explaining the criteria for selecting judicial candidates and claiming its advantage over the currently used syncretic sets of criteria used in European jurisdictions. The analysis will explore the connection between the criteria of judicial selection and the Rule of Law. If the Rule of Law is to be understood at its core as a process of tempering the arbitrariness of power, it requires certain personality traits of character on the part of the judiciary. This article argues that virtue is a context-relevant concept well-entrenched in legal culture that amounts to a personality aspect of the Rule of Law. In support of this point, the article discusses the two possible methods of establishing judicial virtues – using a targeted approach to virtue and an Aristotelian-inspired method of uncovering a catalogue of judicial virtues from the insights into the legal culture. The article concludes with policy-oriented advice on incorporating a virtue-centred approach to judicial selection processes.

1 Introduction

In recent years, selecting and appointing judges has become a focal point of contestation and debate regarding the Rule of Law (RoL) backsliding in some European jurisdictions. Critical judgements from Strasbourg and Luxembourg alluded to and added to this discussion. For instance, in the case of Poland, controversial amendments to the constitutionally guaranteed composition of the National Council of Judiciary (NCJ, Krajowa Rada Sądownictwa) adversely affected the procedure for judicial appointments by making it "inherently deficient".¹ In Grzęda v. Poland, the Grand Chamber of the European Court of Human Rights (ECHR) connected the effectiveness of the European Convention on Human Rights and the necessity of the independence of the judicial appointment bodies, such as the NCJ.² As a result, the ECHR ruled on numerous occasions³ that the Chambers of the Supreme Court of Poland involving membership of judges nominated by the new composition of the NCJ “lacked and continues to lack the attributes of a ‘tribunal’ which is ‘lawful’ within the meaning of the Convention”.⁴ The Court of Justice of the European Union (CJEU) also raised similar doubts under EU law regarding the judicial appointment procedures carried out by a body that cannot be considered independent.⁵

The formal legality of the process of judicial selection and appointment is a cornerstone aspect of the RoL because it stands as the necessary condition for the law to be applied independently and impartially. This article aims to highlight the personality traits of the judicial candidates and their relevance for RoL-oriented democratic jurisdictions. What kind of person gets selected, appointed, or confirmed as a judge may be just as decisive for the state of the RoL as the irreproachability of the procedure itself. This analysis seeks to develop a case for a virtue-oriented (or aretaic) approach to the criteria for appointing judges. It will do so by arguing that the use of judicial virtue for describing and explaining the criteria for selecting judicial candidates and their relevance for the RoL has an advantage over the currently used syncretic sets of criteria in European jurisdictions. Virtue-related notions are content-rich yet promise a more reliable and consistent set of criteria integrated into moral character. The orientation of virtues towards the aims or functions of judges and their role in sustaining RoL allows for the criteria of judicial appointment to reflect on the question of what kind of persons are needed and expected to be judges by the political community.

First, the argument will explore these claims by briefly analysing the current state of the criteria for selecting judicial candidates most often used in various European jurisdictions in light of the concept and elements of the RoL as envisaged in the Council of Europe's standards and EU treaties. The criteria will be critically reviewed for their reliability, consistency, and relevance to the presented concept of the RoL. The following part of the article restates the core meaning and objective of RoL as a tool for constraining arbitrary power exercised by individuals. It argues that such a concept highlights the essential personal dimension of the RoL in contrast to hiding behind impersonal law, which implies that sustaining the RoL needs excellent character traits, or virtues, on the part of its defenders. Then, the analysis moves to clarify the concept of virtue, after which a proposal for the descriptive and explanatory function of virtue is formulated as a grounding of a virtue-based theory of appointing judicial candidates. The last part of the article discusses the two possible methods of establishing judicial virtues – using a targeted approach to virtue and an Aristotelian-inspired method of uncovering a catalogue of judicial virtues from insights into the legal culture. The article concludes with policy-oriented advice on incorporating a virtue-centred approach to judicial selection processes. The discussion is limited to the European legal culture (manifested in the Council of Europe and EU standards and criteria of judicial appointment used in European countries). The analysis highlights examples from Poland because this jurisdiction constitutes an interesting case of having backslid in RoL standards in recent years and undertaking an attempt to rebuild RoL in the courts of law only recently.

2 Criteria for Appointment of Judges and the European Standard of the RoL

In the European Union (EU) law and the Council of Europe’s (CoE) standards, one of the critical aspects or benchmarks of the RoL is access to justice, including judicial independence.⁶ “Effective judicial protection” is one of the obligations of the Member States set out in Art 19(1) of the Treaty of the European Union and Art. 67(4) of the Treaty on the Functioning of the European Union which requires the EU to “facilitate access to justice”. Both the Charter of the Fundamental Rights of the European Union (in Art. 47) and the European Convention on Human Rights (in Art. 6) foresee the right to a hearing by an "independent and impartial tribunal established by law". In this context, the Venice Commission, in its "Rule of Law Checklist", proposes that judicial independence and impartiality are vital aspects of access to justice (along with constitutional justice and fair trial).⁷ One of the prerequisites of having an independent judiciary is using standards for appointing and promoting judges, which should be based "on relevant factors such as ability, integrity and experience.".⁸ This vague triad resonates with the Committee of Ministers Recommendation (CoE) that “decisions [concerning the selection of judges] should be based on merit, having regard to qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity”.⁹

As with some other standards provided by the CoE, the criteria mentioned above are an attempt at a comparative summary of solutions encountered in the organisation's different member states. European legislators indeed provide elaborate and syncretic lists of criteria to be met by judicial candidates. They range from formal qualifications through several types of social skills to moral standards and sometimes even – ideological or partisan considerations.¹⁰ I summarise the criteria used for judicial candidates' selection and appointment in what follows, considering the above-mentioned "relevant factors."

First, the criteria described as formal qualifications and merit-based abilities, such as excellent juridical knowledge and reasoning, are used widely. In Central and East European (CEE) countries, judicial candidates must be highly trained lawyers with academic (law degrees) and several formal vocational qualifications, such as having succeeded in extensive judicial training. This approach is typical for jurisdictions like Germany, Austria, and Poland. For instance, in Germany, the jurisprudence of the Federal Constitutional Court derived from Article 33 (2) Basic Law that when an executive (government) official makes a judicial position appointment, it must be based only on merit.¹¹ Other CEE jurisdictions also prioritised these criteria after 1989.¹² The advantage of formal criteria is that they are measurable and scalable. Professional knowledge or state-of-the-art case-solving skills are generally verifiable through elaborate exams.

Second, some jurisdictions also include skills and experience-based criteria on their lists to be met by the candidates for judicial posts. Judges may be people from diverse backgrounds (not necessarily exclusively legal ones) and have considerable social experience and peace-making skills to foresee the social and human consequences of their decisions. In France, candidates for professional trainee judges do not necessarily have to possess a law degree (at the time of recruitment to the École Nationale de la magistrature).¹³ Some other countries also have temporary lay judges assisting the justice system (e.g. France,¹⁴ Sweeden,¹⁵ Denmark,¹⁶ Austria¹⁷ and others). In some jurisdictions, criteria for judicial selection often considered for professional judges are the candidate’s communicativeness, teamwork, ability to solve disputes between the parties to the judicial proceedings (Austria), negotiation skills, decisiveness, and life experience (Switzerland).¹⁸ The Dutch selection procedures include “behaviour-oriented” interviews before a selection committee, where communicative capacity, analytical capacity, resoluteness, stress resistance and balanced judgement are verified.¹⁹ Other jurisdictions like Germany generally require “social competencies” but without further specification, what should be understood under the term.²⁰

Third, the factors about integrity and the capacity “to respect human dignity” while adjudicating seem to address the personal-moral condition of the judicial candidate. Candidates are often expected to have flawless character and knowledge of rules of conduct and judicial ethics. In Poland, the law on the system of common courts demands that candidates for a judicial office be of "impeccable character.".²¹ Another provision²² mentions that the candidate should have relevant “personality predispositions”. Similarly, in Czechia,²³ the judicial candidate must possess “moral qualities that guarantee the proper exercise of the function”, and in Estonia,²⁴ judges need to be “of high moral character”, and in Latvia²⁵ of “impeccable reputation”. In Switzerland, the candidate is screened for integrity of personality by checking her ability to reflect on her values and adapt to changing situations.²⁶

3 Critique of the Criteria for Appointment of Judges

There are at least two closely connected issues with the criteria mentioned above, which pertain to merit-based qualifications, social skills, and integrity of judicial candidates. The first concerns their consistency and reliability, and the second concerns their adequacy to the envisaged role of the judges in a political community. The second issue is a potentially weak or unclear link between the appointment criteria and the RoL.

3.1 Consistency and Reliability

The discussed requirements for judicial candidates generate problems in consistently providing a coherent image of a prospective judge, especially given that many jurisdictions use a mixed set of criteria. Formal requirements should ensure professional quality and knowledge of the craft. However, critics point out that too much emphasis on merit-based qualifications carries the potential risks of technocratic judging and dogmatism from a legal ivory tower.²⁷ This may be mitigated by introducing lay judges, but only to some extent, since the access to justice, as formulated in EU law, does not cover access to any justice but justice based on the professional application of the law, even if serving it should include removal of a widespread sense of injustice in any given case. The higher the judicial instance, the lesser the probability of doing away with exquisite law credentials and experience as the law increasingly becomes a sophisticated argument on issues of subtle legal doctrines. Also, as aptly pointed out by Michael J. Sandel, the merit-based approach has turned in contemporary societies into “credentialism bias” and “tyranny of meritocracy”.²⁸ Overstating merit-based qualifications may also preserve bias toward the preferred pool of judicial candidates.²⁹

Accenting social skills alleviates some of the deficiencies of relying on formal credentials.³⁰ In some common law systems, there is evidence of growing tension between merit-based legalistic technical skills and more practical ‘people’ skills of communication.³¹ Social skills are collateral competencies that increase the effectiveness of the judicial process, like administrative or case-load management skills. Some skills are necessary to enable the proper adjudicative process, such as language skills, which are essential in international tribunals like the European Court of Human Rights.³² However, they are always ancillary qualifications closely related to the specific judicial function or the tasks of the particular type of court.³³ It is contestable whether they should be formulated as stand-alone criteria, mainly if expressed in business-fashioned language (teamwork, communicativeness, stress resistance), which introduces instrumentalist approach focused on measurable results. For instance, it was raised that some advocacy skills necessary for success in the bar could be counterproductive to judicial work.³⁴

The focus on the judicial candidate's moral integrity concerns values and ethics in judicial decision-making. Unfortunately, the notion of character can be considered ambiguous and not well-measurable. It leads to a situation in which verifying the candidate's integrity turns into a negative screening for particularly wrong past conduct, evidenced by committing a crime or attracting public condemnation.³⁵ The tendency manifests in requiring the judicial candidate to supply the appointment body with documents such as certificates from criminal records or a positive opinion from a local police authority.³⁶ Finding out she committed a crime will eliminate the candidate, but it is not reliable for a proper assessment of her character. Even if the nominating institution deliberates about the candidate's character, it risks being reduced to sterile and ritual discussions.³⁷ The problem seems to be with interpreting and assessing the criteria expressed in law through aspirational notions such as “impeccable character”. The reasons for failing character assessment may be due to a tendency to replace conscience with procedures,³⁸ and an irresistible compulsion to conceive of all ethics using deontic terms such as ‘obligation’ and ‘duty’, familiar with legal language. Since ethics of duty use rules based on notions of rightness and wrongness of actions, it is far easier to use a negative morality approach, like exposing even incidental evidence of wrongdoing (one-time reckless driving), to prove a lack of character quality rather than to holistically and multidimensionally assess the agent’s moral personality.

Another problem with the reliability of the merit-based criteria is illustrated by the fact that not all states are convinced whether ideology-driven considerations, especially political bias in candidates, may be realistically excluded through the introduction of the formal criteria. Some jurisdictions take this problem as a given, and like Switzerland, they openly expect a judicial candidate to be a political party member to strike a balance on the bench.³⁹ Others introduce maximum discretion in appointing judges to the highest judicial tribunals like constitutional courts. In Austria, where the constitutional tribunal model originated, the criteria for nomination to the Österreichische Verfassungsgerichsthof are informal and include a political balance between “conservatives” and “social democrats”.⁴⁰ In the French political model of constitutional control, there are no concrete criteria for a candidate to nominate to the Conseil Constitutionnel; it is the job of the political organs that hold the power to create the Council to strike a balance in nominating the best-suited candidates.⁴¹

3.2 Adequacy and the Link with the RoL

The variety and mixture of the criteria of different kinds applied to judicial candidates in other jurisdictions may fit the comprehensive CoE recommendations,⁴² but hardly enable to reconstruct any consistent theory of what judges as persons the community wants and needs. The problem is also connected to the lack of clear justification for how appointing candidates according to a set of the above criteria serves the RoL regarding nominated judges' future adjudicative work. The awareness of the vitality of the possible connection between the resilience of RoL and the mentality and attitudes of individual judges has been growing since the RoL backsliding crisis began in Central Europe in the last decade.⁴³ Do the formally high juridical qualifications of the nominees protect against the excesses of legalism as represented by the Latin maxim sumum ius summa iniuria?⁴⁴ Do “social” or legal skills of judges guarantee balancing legal certainty with the necessary flexibility to the dictates of humanity and fairness?⁴⁵ Is the judge's integrity, verified through minimum threshold condition of the lack of evidence of past wrongdoing, enough to immunise her from the threat of abuse of substantial discretionary power through arbitrariness that lurks behind unreasonable, irrational, and oppressive decisions?⁴⁶ This criticism does not aim to suggest that the merit-based criteria for judicial candidates used in comparative and international law need to be corrected are counter-effective to the RoL. However, there is an overreliance on the pragmatic thinking that merit-based criteria are in a self-understanding way conducive to the RoL (for instance, that a candidate's high score from a professional legal exam correlates with the reasonableness and legality of her decisions as a judge). Before proposing a more integrated vocabulary for describing the excellences and shortcomings of judicial candidates, it should be further explored what the RoL demands from judges regarding their personal qualifications.

4 RoL and the Character of the Judge

As illustrated by the example of the CoE recommendations, the RoL is most often linked to principles, institutional arrangements, or values and does not immediately and directly relate to individual persons. It is because historically and rhetorically, the RoL grew as a counter-ideal to the patriarchal "rule of men" or what is termed today as a "rule of men and women."⁴⁷ Although contexts and traditions of thinking around the RoL (or Rechtstaat) have naturally differed, just as its conceptions (and definitions) do, they all ultimately grow from thinking in opposition to unconstrained personal power, making rules and orders ultimately dependent on the whims of the tyrant, emperor, dictator, or a central committee of the one political party. For many traditions, this perennial concern over the irregular exercise of power has become the cornerstone of the concept of the RoL.⁴⁸ Thinkers may want the RoL for many other reasons. Still, the traditional one is the hope of tempering or constraining the arbitrariness of power – of the individuals behind the state (nowadays also beyond – coming from private and supranational actors) and exercised through the state.⁴⁹ If this is the case, it would be paradoxical to conceive of the RoL understood in opposition to the “rule of men and women” as an impersonal endeavour. There is no de-personification of law—there are still persons taking part in law-making and law-application. Perhaps more importantly, concrete individuals must be responsible for abusing power with the use of "law", whom one cannot let hide behind the law’s alleged impersonality.⁵⁰ Thus, the RoL itself must be considered a personal-dependent process to constrain the arbitrary rule of men and women. This assertion should not be interpreted in a way detracting from or undermining the importance of the institutional dimension of the formal safeguards of the RoL. However, it is also true that the RoL needs its flesh-and-blood defenders, who are not only juristically capable and otherwise skilful experts but also persons willing to act from certain personal traits (or virtues), which are dialectically and morally opposite to the vices such as arrogance, contempt, unpredictability, greed (disguised as ‘the will’, ‘caprice’ or ‘pleasure’)⁵¹ of the power holders, tempted to abuse power and discard responsibility arbitrarily. This personal aspect is only sometimes visible when stable institutional guarantees of the RoL work correctly, and it may even be controversial whether law’s defenders should be expected to demonstrate militant-like virtues such as courage.⁵² But recent examples of RoL “backsliding" in countries like Poland show that in times of active dismantling of constitutional and other guarantees, much of the RoL hinges upon the personal demeanour and sometimes years-long steadfastness of judges unwilling to surrender it.⁵³ These are no isolated cases; as Hans Petter Graver recently demonstrated, there are many stories of judges from various times and cultural backgrounds whose character allowed them to defend the idea of the RoL against all odds, even in the face of totalitarianism.⁵⁴

It follows, that the RoL, understood as a process of tempering the arbitrariness of power exercised by men and women through law, requires certain personality traits – or character from everyone who could be otherwise tempted to abuse the executive or law-making power of their office, but mainly from judges. If the RoL involves, on the constitutional level – separation of powers – then courts and judges find themselves in a unique position. Of all the three traditional powers, the judiciary is the most directly involved in the day-to-day enforcement and protection of the RoL through its role in adjudicating disputes and through different forms of judicial review (from administrative to constitutional) it performs. The position of the judiciary vis-à-vis the use of state power is also somehow paradoxical; the prerogatives to pronounce and interpret the law in individual cases, or other words, being the voice of the law, make the courts potentially subversive to political power while being part of the state power at the same time. Modern conceptions of the RoL embrace discretion as necessary for the flexibility of the judicial interpretation and application of the law.⁵⁵ Ultimately, the courts, especially in the highest instances, must take definitive responsibility for the RoL, including a final decision to constrain government power through law. Such a task cannot be merely decreed or entirely secured by institutional features. This unique position requires the judge to personify the RoL according to her mindset and moral and intellectual commitment to controlling arbitrariness and effectuating the law.⁵⁶ In other words, judges require fine character qualities – judicial virtues.

5 Judicial Character and Virtue

When speaking of a person’s character, we usually mean something more permanent and complex than merely their reaction to a moral norm (compliance with or violating a moral precept). The notion of character implies that a moral actor has a set of personal traits that are related to each other and evaluable so that they provide persons with moral worth.⁵⁷ According to Christian Miller, character traits are dispositions "which manifest as beliefs, desires and actions of a certain sort appropriate to that trait (…)" and for which a person "can be appropriately held responsible and be normatively assessed".⁵⁸ In other words, personality traits of (moral) character may be deemed morally good or bad. The legal qualification of an “impeccable character” suggests a faultless, flawless, or even “perfect set of personal dispositions”.⁵⁹ It follows that the term connotes moral character (morally evaluable personal traits) and, as a legal requirement, demands from its possessor fine traits of character that are called virtues (and precludes vices as their opposites). Virtues may be thus seen as “the most pronounced and developed states of morally good character”⁶⁰ or simply personality traits that make one an excellent person.⁶¹ These traits are qualities that we admire in other people.⁶² They are motivated by good intentions and lead their possessors to achieve good things in life.⁶³

In the popular perception, virtues are sometimes reduced to praiseworthy behaviour. Although good habits matter, they can be barely symptoms of virtues. There are at least two other crucial aspects of virtue: the cognitive (about reason, rationality, and perception) and the affective (concerning emotion and intuition). First, all virtuous behaviour is based on meaningful, practical reasoning and intelligence. As proposed by Aristotle and his followers, what integrates all virtues – whether moral or intellectual (epistemic) – is the kind of practical wisdom called phronesis, which, among other elements, involves a particular form of moral sensitivity or perception.⁶⁴ It allows the virtuous agent (a judge) to discern what is called for in a particular case and deliberate it well because the virtues of moral character shape how things appear to the virtuous agent.⁶⁵ In other words, a virtuous judge has a particular perception of the facts grounded in a superior grasp of the factors morally and legally salient in every case. It makes her excellent at comprehending, evaluating, and acting upon complex situations appropriately.

Second, the virtuous agents always feel and act with sound emotion. Their activity is undisturbed by frustration or inner conflict.⁶⁶ A benevolent person helps others with true joy because she cares about their wellbeing, a generous person does not share her resources only reluctantly, and a good-tempered judge feels in control and unaffected by destructive emotions nor holds a grudge towards any participants in the proceedings. Emotions are also indispensable for the correct appreciation of social facts and proper communication, and they are a distinctively human way to register the importance of things.⁶⁷ Some research shows that laborious moral reasoning may only be second to instant moral judgment based on affective intuition.⁶⁸ It is also essential to virtue that, apart from having a proper emotional response, a virtuous person also feels motivated to do what is deemed appropriate.⁶⁹ Proper use of emotions amounts to emotional maturity.⁷⁰ Like any other virtuous person, a virtuous judge feels the emotions "on the right occasions, towards the right people or objects, for the right reasons".⁷¹ The view that virtue is a disposition "well entrenched in its possessor" or a deep feature of their personality that “goes all the way down” integrates all the abovementioned aspects.⁷²

6 Grounds for a Virtue-Based Theory of Appointment of Judicial Candidates

6.1 Descriptive Function of Virtues

The notion of virtue provides consistent and rich normative language to explain the criteria for judicial candidates. Most apparent is the aptness of the aretaic terms to expound character-related criteria, such as judicial integrity, which can be seen as a virtue.⁷³ Instead of screening candidates' biographies for selected instances of right or wrong actions based on transgressing norms, moral virtues supply “thick” meaning through holistically assessing their character and personality rather than isolated actions.⁷⁴ Descriptions like “courageous”, “benevolent”, or “generous” convey a lot more information and meaning, as well as focus on the context. Moreover, virtue terms can accommodate and make normative sense of acts that are not required by duty but are good to perform (so-called supererogatory acts).⁷⁵ Consider a judge so passionately committed to protecting the value of RoL and human rights that she goes beyond her usual professional adjudicative duties by openly criticising the government in her judgements and speaking out in public against a manifestly unjust law curbing the independence of the courts while facing adversity and persecution.⁷⁶ What is considered a violation of judicial duty by the government subjected to the judge's critique can be interpreted as supererogatory actions recognised under a virtue-oriented approach as forms of manifestation of heroic virtues such as courage.

Perhaps more importantly, the reach of virtue language extends beyond morality or judicial ethics. It can accommodate admirable traits or qualities of judges that would not be otherwise considered commanded by moral law under rule-based approaches (focusing on moral prohibitions).⁷⁷ For instance, leadership, orderliness, good manners, or punctuality may all be admired in judges but are not morally significant in the way courage or honesty are. Intellectual virtues, which refer not only to major traits like wisdom but can also take account of a judge's key epistemic strengths, such as theoretical legal knowledge, critical thinking, intellectual independence, and legal argumentation, hold an important place within the aretaic language.⁷⁸ Searching for intellectual virtues in candidates does not exclude verifying formal qualifications, like academic degrees, at least for some epistemic virtues like theoretical knowledge. However, these criteria refer merely to minimal thresholds and do not assure that the candidate will excel intellectually or manifest epistemic supererogation (go beyond duty in diligence and persistence in looking for evidence when the case demands it). Instead, different criteria can jointly attest to the candidate possessing epistemic virtues conducive to good judging, while others may exclude candidates with opposing intellectual vices.

Similarly, social and other skills can be included in the framework of the aretaic lingo. Some consider virtues themselves to be similar to skills.⁷⁹ After all, acquiring virtues is tied to practice, which resembles skill building; Aristotle reminds us that "we become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts."⁸⁰ The skills considered in the case of judicial nomination are complex, multi-track dispositions, not simplistic knacks that come without any justification or theoretical principles explaining their practice.⁸¹ Communication, interrogation, judicial document drafting or time management skills are not merely instrumental in attaining specific isolated or intermediate goals within the judicial process. Still, they are constitutive in attaining the more fundamental value the virtuous action seeks. A judge is admired not merely for her wise, equitable or principled judgement but also because it resulted from a masterful application of her juridical, leadership or communication skills during the process. The skills of candidates should be interpreted in terms of judicial virtues these skills enable. Considered in isolation, knack-like skills (e.g., the knack of getting along with people) are not adequately integrated into the context of virtues of judging and are, therefore, not justified in the selection process.

6.2 Explanatory Function of Virtues

Crucially, a virtue theory of judicial nomination (and adjudication) can also explain the choice of the selection criteria. For many thinkers, the concept of virtue has a teleological character, which means that people have a function (or an end; telos) of intrinsic (inherent) value, and virtue is the disposition that allows them to perform this function well.⁸² The overarching goal is to live a good life or human flourishing, but more immediate and specified ends when undertaking a virtuous activity are also possible.⁸³ It is especially true for role-related virtues of professional practitioners like medical doctors, teachers, or judges, who also have their functions. In the case of doctors, it may be caring for patients' health or saving their lives, and teachers may aim at their students getting true beliefs about the world. These ends are internal to these roles and have an intrinsic value, but at the same time, they are constitutively valuable because they form a part of what living a good life means.⁸⁴

It follows that in the sense mentioned above, the role of the judge also has its function or multiple ends inherent to the judicial virtues. The precise formulation of these ends is up to the lawmakers; however, the judicial functions like resolving disputes, bringing legal certainty, or dispensing justice will be of constitutive value for the more overarching aim of the judicial system or the state. In a democratic society, this aim (for example: "just society under the law") must contain a core of the promise of the RoL understood in terms of constraining arbitrary power. The criteria for judicial nomination should be instrumental to verifying whether candidates possess or at least have a clear potential for developing virtues (intellectual, moral and other) necessary to perform the functions of the judiciary well and in the view of the overarching goal of sustaining RoL. But how do we establish which virtue and how allows for a judicial function to be performed well? The following two sections propose possible methods of developing the list of virtues.

7 Judicial Virtue – a Pluralistic Target Account

Christine Swanton claims that “a virtue is a good quality of character, specifically a disposition to respond to, or acknowledge, items within its field or fields in an excellent or good enough way”.⁸⁵ A field of virtue is a collection of items constituting a sphere of concern for a particular virtue.⁸⁶ For instance, a life threat made to the judge is an item in the field of the virtue of courage, and a temptation to disregard evidence on the part of a trial judge may be an item in the field of justice. The items in each virtue’s field are challenges that demand the judge to respond to them or acknowledge them in an appropriate (excellent or at least good enough) way.⁸⁷ Everyday examples include handling evidence, the complex behaviour of defendants in the courtroom, the substantive and procedural law, the scope and applicability of legal principles, the complexity of the case, public expectations of legal and moral standards of the judicial process, or the grade of responsibility for the outcome of the process. Different response modes are possible for each virtue, for instance, promoting values, honouring rules, being respective of status, considering relationships between people, creating, admiring, or handling things appropriately. Each virtue has its aim or target that should be “hit” by the ideally virtuous person.⁸⁸ Virtue hits its target when the item in its field is responded to adequately through an appropriate mode. For instance, a bribe is an item in the field of judicial honesty or integrity. However, at the same time, it can be located in the field of justice because it threatens the judicial system, its authority, and the fairness of the trial from the perspective of other participants. Therefore, a response on the judge's part to a bribe, limited to merely denying it, does not hit the target of at least some of the virtues at stake. The corruptive action needs to be exposed, reported and punished to hit the target of justice, fairness and other virtues on which that item puts a demand. Therefore, the “features which make traits of character virtues are determined by their targets, aims or point (…)”.⁸⁹ In Aristotelian terms, hitting the target of virtue may be regarded as hitting "the mean" of each virtue.⁹⁰ The mean is a condition of meeting the requirements of virtue "in the right circumstance, in the right manner, at the right time, to the right extent, for the right reasons, concerning the right people or objects, deploying the right instruments".⁹¹

Under this account, the ends or functions of a judicial role can be considered in terms of targets of the relevant judicial virtues. Defining which traits are expected from judges starts by establishing these virtues’ respective fields given the functions or roles designated for judges in the given legal system. This process involves answering the usual challenges the judiciary must respond to while fulfilling its role or function well. Besides the overarching aim of ensuring the RoL, the functions of the judiciary and the objectives of judicial systems may include sustaining legal security and facilitating access to justice,⁹² dispute resolution, or protection of civil rights and freedoms.⁹³ All these and other possible functions involve different items or specific demands and challenges that call for relevant virtues. For instance, in sustaining and developing the RoL as an intrinsic aim, the judge's role is to respond to challenges posed by an arbitrary use of state power that abuses the law. Martin Krygier states power is arbitrary when uncontrolled, unpredictable, or unrespectful.⁹⁴ Uncontrolled power may take the form of sheer whim or will of the ruler, for instance, when a decision is without regard to constitutional or other limits. Power is unpredictable when the subjects cannot presuppose, understand, comply, or even know when and how the power that affects them is wielded. Unrespectful power is exercised by objectifying the citizens or when it does not leave any space for them to be heard, express their opinions or interests, or question the reasons.⁹⁵ A recent case of the alleged unlawful operation and use of the “Pegasus” spyware software for mobile phone invigilation against members of the parliamentary opposition and journalists could be a candidate to exemplify arbitrary use of power in all of the above meanings.⁹⁶ Seen in this perspective, such instances of arbitrary use of power by the executive are considerable items in the fields of multiple judicial virtues, such as civil courage, persistence, social responsibility, empathy, legalism and rigour in applying the law, technical knowledge and willingness to learn, insight, critical thinking and prudence. The judge should, for instance, dismiss the fear of retaliation from the executive (wielding arbitrary power) through embracing legality and honouring rules of procedure, expose the facts by the persistent pursuit of truth and critical assessment of evidence, as well as protect and understand the victims through showing empathy and by fair and prudent handling of available legal protective measures. The judge should consider all these targets and the ways of acting towards them using the measure of the degree to which the RoL is thereby protected and restored.

8 A Catalogue of Judicial Virtue and the Legal Culture

Alternatively, to the analytic scheme proposed above, judicial virtues can be uncovered as catalogues derived from opinions shared in the given legal culture (a national or, more broadly, the European legal culture, represented by the values and principles clarified by the CoE).⁹⁷ In essence, this approach is similar to Aristotle's method of supporting reasoning by reference to "reputable beliefs" (endoxa, gr. ἔνδοξα), which include those "accepted by everyone, by the majority or by the wise."⁹⁸ The analysed sources represent "locally embedded insights" about virtues from legal practice, court jurisprudence, or expert journalists.⁹⁹ Virtues are culturally relevant, and so are their catalogues, which can make them differently understood across time and space. By listing virtues, one also states goals for communities, individuals, or—in the case of judges—the roles they pertain to.¹⁰⁰ Thus, a catalogue of judicial virtue may also lay down the ground for a particular philosophy of the judiciary – what it means to be a judge and what judges do.

As an example, for this article, research of the recent sources of the Polish legal culture, which shape the public discourse on judicial virtues, was carried out through analysis of Polish scholarly papers and books on judges, disciplinary judgements of the Polish courts¹⁰¹ and press articles, legal acts, and other normative texts, such as ethical codes and declarations. Over one hundred sources were found to contain references to judicial virtues. The resulting virtues were integrated into a modified and expanded framework for a general virtue classification put forward by psychologists Peterson and Seligman, called the High Six model.¹⁰² The research allowed the creation of a short list of the most prevalent character strengths expected from the Polish judges (more than twenty mentions), which includes, in descending order: fairness, self-control, kindness, citizenship as lawfulness (strength of justice), integrity, self-respect or honour, prudence and humility or modesty. When the list representing the scheme of the Polish judicial virtues was confronted with the standards for judicial ethics valid on the EU and CoE levels,¹⁰³ only one virtue – fairness – was found to be mentioned also in all European sources. From the above short list, the most often mentioned Polish judicial virtues, self-control, kindness, and citizenship, were also mentioned in three of the four analysed European sources. Integrity and the desire to develop knowledge and learn were also common to the Polish scheme and the European sources list.¹⁰⁴

9 Implementing Virtues in a Judicial Selection Process

The law and the selection criteria for judicial candidates need to communicate a particular theory of the judiciary by defining the judges' functions and roles. In a liberal democracy, the aims of the judiciary will be primarily determined by the constitutional framework and the foundational concept of the RoL. Apart from consciously shaping the required virtues through defining challenges and aims of the judicial role in a constitutional setting, it is possible to enhance the judicial selection procedures to be responsive to virtue-relevant criteria. Although the quantifiable measurement of virtues is only a nascent approach within the so-called science of virtue, progress and research in this area are noticeable.¹⁰⁵ For instance, psychology and ethics researchers describe several possible methods of measuring the ability to recognise virtue-relevant stimuli (or, in the terms used here – items in the fields of virtue) and identify the corresponding virtue.¹⁰⁶ People may also be asked to imagine a virtue-relevant situation and describe how displaying a relevant virtue would be appropriate.¹⁰⁷ Being able to recognise such situations in the first place is the most critical indicator of moral and legal sensitivity¹⁰⁸ or perception as a cognitive foundation of virtue. In addition, prudence should be the focus when selecting judicial candidates instead of mere knowledge. For instance, results of professional legal case-study exams could be assessed not only by the criteria of formal correctness but also by the effectiveness in finding an open-minded solution considering the law and other salient features of the given situation.

The affective aspects of virtue can be searched for in candidates by inquiring about attitudes and motivations for acting out of virtue (for instance, a candidate can be asked to clarify motivations for showing forbearance in a specific case scenario) or for becoming a judge in the first place. Confronting the candidates with ethically demanding scenarios involving their response to different items found in the fields of expected judicial virtues helps to observe and assess their ability to handle emotions. Self-report measures (like questionnaires) about the affective aspect of virtue may also be used. However, they are prone to response bias (for instance, the self-deception of the candidate), so these methods should be used as one set of possible measuring tools or be carried out in addition to questioning third parties about the candidate (triangulation).¹⁰⁹ Alternatively, self-reporting is a tool in the framework of multiple tests performed in different contexts over a more extended period (longitudinal observation).¹¹⁰ It is also worth considering that the capacity for emotional maturity enabling prudent action correlates with gaining life experience and a certain age. Raising entry levels of professional experience (both in breadth and depth) or age will likely increase the odds of attracting virtuously developed judicial candidates.¹¹¹

Finally, virtues are not necessarily perfect qualities, but they may be good enough, if not excellent, responses to life challenges. Virtue may occur in different degrees and can be developed and refined over a lifetime. Candidates must constantly be formed to the role by appropriate moral education, preferably as early as law school.¹¹² It should continue for appointed judges during judicial training and later career stages. Directive instruction focussed on intellectual virtues without practising moral virtues is not sufficient.¹¹³ Candidates should be embedded in a legal-professional environment where they are directly engaged in narratives and stories about lawyering and confronted face-to-face with exemplars and possibly examples of judicial heroes and anti-heroes.¹¹⁴

10 Summary: Judicial Virtues and the RoL

This article argued that there is an essential connection between the selection criteria for judicial appointment and the RoL in a democratic legal system. The fundamental aim of the RoL was clarified as a systemic opposition to and control of possible arbitrariness in the exercise of power. Where the judiciary's role is genuine and independent, its entanglement in both wielding state power and constraining it is imminent and meaningful. As the recent examples of the RoL backsliding in European jurisdictions demonstrate, having modern constitutional, procedural, and institutional safeguards in place is essential but not decisive for upholding the RoL. Guarantees such as the non-removability of judges may only shift the problem of the relationship of judges with the RoL to a more personal realm. Having a substantial margin of discretion and finality to their decisions, judges stand as state officials with the most freedom for making an individual decision either to yield to the populist or authoritarian hijacking of the RoL or to oppose it efficiently. Thus, constraining instances of arbitrary exercise of power and abuse of law requires, on the part of judges – besides acting lawfully – personal dispositions of goodwill intention and a RoL-aligned mindset.

Considering the aim of upholding the RoL as an overarching aim of the judiciary being the separate power, and its more immediate functions, such as ensuring access to justice or providing for legal certainty and peaceful dispute resolution (all being constitutive of the RoL), a theoretically coherent account of the selection criteria for judicial appointments is possible and could be implemented. This analysis sought a relevant language to address judges’ personality traits using the thick, multi-dimensional notion of virtue. Virtues remain relatively coherent, stable, and intuitive, evident from how we think judges should be fair, honest, or just. Consequently, this article argued for a virtue-based theory to describe, analyse, and explain the criteria for selecting judicial candidates and develop a more precise concept of a good judge. It can be done through the resources of virtue theories, such as the pluralistic target account of virtue. Another way, proposed and exemplified by the accompanying research results, is to uncover the moral and intellectual expectations towards the judiciary by drawing from the legal culture through constructing a catalogue of judicial virtues. Providing a shared understanding of “judicial culture” through virtues gives the RoL a familiar face of a judge as a flesh-and-bone person, fostering trust in the judiciary.