Abstract
This introductory chapter seeks to address the widespread concern that judges should have some knowledge of the community they live in so that justice is administered ‘in the name of the people’. In considering ways to develop public confidence in the judiciary, we challenge the assumption that the composition of the highest courts is the core instrument to achieve a fair reflection of the community in the judiciary. Public confidence in the courts is gained by procedures in various forms and shapes relating to the institutional structure of the judiciary. There may be the use of lay participants, or there may be substantial lay participation in selecting individual judges. Besides, it is arguable that the popular acceptability of judicial decisions is, or can be, enhanced by the style of judgments and reasoning. Ultimately, however, views differ on whether lay participants can be used to gain the respect of the community. It may be that recruitment among professional lawyers remains the best way forward, provided (1) that they need not necessarily be drawn solely from the ranks of legal practitioners but may (in some courts) include academics or other professionals (2) that the composition of the judiciary does not reflect a perceived wider social exclusion of some minority groups, and (3) that there is judicial training in social problems with which many judges may be personally unfamiliar.
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- 1.
G di Frederico, ‘Independence and accountability of the judiciary in Italy. The experience of a former transitional country in a comparative perspective’ in A Sajo and R Bentch (eds), Judicial Integrity (Leiden, Brill Publications, 2004) 181, 185.
- 2.
AWG Group v Morrison Ltd [2006] EWCA Civ 6, para 29 [Mummery LJ].
- 3.
J Resnik and D Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (Yale, Yale University Press, 2011) 104.
- 4.
Reports were received from the following countries: Argentina (Professor Sebastiàn Elias, Universidad de San Andrés, Buenos Aires), Australia (Justice Susan Kiefel (High Court of Australia) and Cheryl Saunders, Laureate Professor, University of Melbourne Law School), Belgium (Professor Maurice Adams, University of Antwerp, and Dr Benoit Allemeersch, Leuven University), Canada (Professor Stéphane Bernatchez, University of Sherbrooke, Québec), the Czech Republic (Professor Michal Bobek, College of Europe, Bruges), Denmark (Professor Ditlev Tamm, University of Copenhagen), Finland (Professor Pia Letto-Vanamo, University of Helsinki), Germany (Professor Michael Lothar, University Heinrich-Heine, Düsseldorf), Greece (Professor Nicolaos Klamaris, University of Athens), Hungary (Dr Balázs Fekete, Pázmány Péter Catholic University), Ireland (David Prendergast, Trinity College Dublin, and David Kenny, University College Dublin), Italy (Professor Pier Giuseppe Monateri, University of Turin), Netherlands (Professor Ton Hol, University of Utrecht), Poland (Professor Margareta Kol, University of Lodz), Portugal (Professor Cristina Machado de Queiroz Leitão, University of Porto), Serbia (Professor Dušan Nikolić, University of Novi Sad), Romania (Dr Lavinia Lefterache, University of Bucharest), Slovenia (Ms Nina Betetto, Vice-President, the Supreme Court of the Republic of Slovenia), Switzerland (Professor Luc Gonin and Dr Olivier Bigler, Université de Neuchâtel), United States of America (Professor Mortimer Sellers, University of Baltimore School of Law), Venezuela (Professor Allan Brewer-Carías, Universidad Central de Venezuela). Not all national reports are included in this volume, but they can be found in national publications or communicated upon request. My thanks go to all national reporters for their stimulating reports. I am also grateful to John Bell for some insightful discussions, and to Joanna McCunn for her editorial assistance. All remaining shortcomings are mine.
- 5.
The European Commission for the Efficiency of Justice (CEPEJ), Checklist for promoting the quality of justice and the courts (Strasbourg, Council of Europe, 2008) 2.
- 6.
G Barden and T Murphy, Law and Justice in Community (Oxford, Oxford University Press, 2010) 4.
- 7.
US Constitution, Amendment VI; see also Blakely v Washington 542 US 296 (2004) at 306. Individuals with personal knowledge of the disputants or events cannot be members of the jury, however.
- 8.
Legitimacy refers to the acceptance of a court by the parties, the citizens and society at large. It justifies public trust in the court on the basis of various factors, such as the selection of judges, their independence and the reasoning supporting the Court’s judgments, see JE Soeharno, ‘From Rechtsstaat to Ruler in the Rule of Law: An Inquiry into the Increased Role of the Judiciary’ in A van Hoek et al. (eds), Multilevel Governance in Enforcement and Adjudication (Antwerp, Intersentia, 2006) 157.
- 9.
See Inter-American Commission on Human Rights, ‘Report on the Situation of Human Rights in Venezuela’ OEA/Ser L/V/II.118, doc 4 rev 2 (2003) at para 174.
- 10.
European Commission, ‘Final Report from the Commission to the European Parliament and the Council. On Progress in Romania under the Cooperation and Verification Mechanism’ COM (2012) 410, at 4.
- 11.
Values, practices and concepts are integrated into the operation of legal institutions and the interpretation of legal texts in a specific way in each legal system, J Bell, ‘English Law and French Law – Not So Different?’ (1995) 48 Current Legal Problems 63, 70.
- 12.
D Grimm, ‘Domestic Courts and International Courts’ in S Muller and M Loth (eds), Highest Courts and the Internationalisation of Law. Challenges and Changes (The Hague, The Hague Academic Press, 2009) 121, 127.
- 13.
M Bobek, Ch 6 below.
- 14.
Neil MacCormick stated that ‘politics is essentially concerned with the power of decision making in human communities on matters of communal interest or importance, with competition for that power and with its exercise. As for law, the essence is not power but normative order…Law is about institutional normative relations between normatively recognised persons of all sort’, N MacCormick, ‘Beyond the Sovereign State’ (1993) 56 Modern Law Review 1.
- 15.
1 A de Tocqueville, Democracy in America (Francis Bowen translation, Alfred A. Knopf, Inc 4th prtg 1948) (1835) at 282.
- 16.
Tocqueville, Democracy in America at 286.
- 17.
L Appleman, ‘The Lost Meaning of the Jury Trial Right’ (2009) 84 Indiana Law Journal 397, 405.
- 18.
F Pakes, Comparative Criminal Justice, 3rd edn (Abingdon, Routledge, 2014), Ch 7.
- 19.
However in England there is also a clear trend to constrain juries in returning verdicts, normally by requiring them to give a simple verdict of ‘guilty’ or ‘not guilty’. But this method might raise doubts whether the jury actually understood the law at all.
- 20.
Barden and Murphy, Law and Justice in Community, 6.
- 21.
Sweden provides another such example, as the lay judges (nämndemän) came to be reduced effectively to the role of assessor (bisittare) in 1948, see J Bell, Judiciaries within Europe (Cambridge, Cambridge University Press, 2006) at 283. John Bell notes that, ‘by their very presence, they are able to inject both different knowledge and an element of social accountability into the professional judges’ decision-making process’, ibid, 286–287.
- 22.
I am grateful to John Bell for this observation; see Bell, Judiciaries within Europe for a comparative study on this matter.
- 23.
Bell, Judiciaries within Europe.
- 24.
P Pettit, ‘Representation, Responsive and Indicative’ (2010) 17 (3) Constellations: An International Journal of Critical and Democratic Theory 426 at 431. Judicial decision-makers cannot be agent in relation to a principal, for fear of undermining the principle of judicial impartiality.
- 25.
M de S-O-l’E Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, Oxford University Press, 2004).
- 26.
J Mance, ‘The Common Law and Europe: Differences of Style or Substance and Do They Matter?’ Presidential Address to the Holdsworth Club of the University of Birmingham (2006) 10.
- 27.
S Turenne, ‘Judicial Responses to Civil Disobedience: A Comparative Approach’ (2004) 10 Res Publica 379.
- 28.
Edwards v Attorney-General for Canada [1930] AC 124, 136.
- 29.
M Tushnet, ‘Popular constitutionalism as Political Law’ (2006) 81 Chicago Kent Law Review 991 at 997.
- 30.
ibid, 999.
- 31.
P Sales, ‘Strasbourg Jurisprudence and the Human Rights Act: A Response to Lord Irvine’ (2012) 2 Public Law 253.
- 32.
A v SSHD [2004] UKHL, para 42 [Lord Bingham].
- 33.
D Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham NC and London, Duke University Press, 1997) 21–22.
- 34.
Art 20 III Basic Law.
- 35.
34 BVerfGE 269 ‘Princess Soraya’, see Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany at 125.
- 36.
G Fletcher, ‘Two Modes of Legal Thought’ (1981) Yale Law Journal 978. As Fletcher writes, ‘We can assert the truth about [one interpretation of a right] and even make a persuasive case for our position. A consensus might emerge for [that] particular conception… But the consensus can be at most tentative. A better vision of [the right] always remain possible’, in G Fletcher, ‘Two Modes of Legal Thought’ at 982.
- 37.
R v S (RD) [1997] 3 SCR 484, para 119 [Cory J].
- 38.
Canadian Judicial Council, Commentaries on Judicial Conduct (1991) 12.
- 39.
R v S (RD) [1997] 3 SCR 484, para 4.
- 40.
J McGarry, ‘Pionering Efforts: NJI’s Social Context Education Project’ in National Judicial Institute (Canada) (ed), 20th Anniversary Essays (Ottawa, National Judicial Institute, 2009).
- 41.
‘Intellectual capacity’ refers to a ‘high level of expertise in your chosen area or profession’, the ‘ability quickly to absorb and analyse information’, an ‘appropriate knowledge of the law and its underlying principles, or the ability to acquire this knowledge where necessary’. The personal qualities expected are ‘integrity and independence of mind’, ‘sound judgment’, ‘decisiveness’, ‘objectivity, the ‘ability and willingness to learn and develop professionally, and the ‘ability to work constructively with others’. The ‘authority and communication skills’ refer an ‘ability to explain the procedure and any decisions reached clearly and succinctly to all those involved’, the ‘ability to inspire respect and confidence’, the ‘ability to maintain authority when challenged’.
- 42.
Report of the Advisory Panel on Judicial Diversity, 2010, recommendation 20.
- 43.
S Shetreet and S Turenne, Judges on Trial. The Independence and Accountability of the English Judiciary (Cambridge, Cambridge University Press, 2013).
- 44.
The Dutch Supreme Court is striving to achieve a balanced mix of people from the judiciary, the advocacy, academia and the tax world. It also aims to achieve a higher percentage of female members, since the current percentage is still 16 % of the total number of judges.
- 45.
L Sossin ‘Should Canada have a Representative Supreme Court?’ SC Working Paper No 7, Special Series on the Federal Dimensions of Reforming the Supreme Court of Canada (2009) at 3.
- 46.
House of Lords Committee on the Constitution, ‘Oral Evidence before the Constitution Committee’, Q 220, in Twenty-Fifth Report on Judicial Appointments (2012), para 84.
- 47.
R Goodin, Innovating Democracy. Democratic Theory and Practice After the Deliberative Turn (Oxford, Oxford University Press, 2008), 233 ff.
- 48.
Goodin, Innovating Democracy. Democratic Theory and Practice.
- 49.
See the distinction, by the European Court of Human Rights, between a presumption of personal impartiality from the judge, that is, a presumption that none of the Court’s members is showing bias or personal prejudice, and the requirement of institutional impartiality, in the sense that the tribunal must offer guarantees sufficient to exclude any legitimate doubt on the impartiality of the institution, Findlay v United Kingdom [1997] 24 EHRR 221, para 73.
- 50.
M Cappelletti, ‘Who Watches the Watchmen? A Comparative Study on Judicial Responsibility’(1983) 31 The American Journal of Comparative Law 1, 7–9.
- 51.
S Shetreet, ‘On Assessing the Role of Courts in Society’ (1980) 10 Manitoba Law Journal 357, 399–402.
- 52.
As noted above, section 1.1.
- 53.
Lord Hailsham, ‘The Independence of the Judicial Process’ (1978) 13 Israel Law Review 1 at 8–9.
- 54.
Bell, Judiciaries within Europe.
Reference List
Books
Bell, J (2006) Judiciaries within Europe (Cambridge, Cambridge University Press).
Barden, G and Murphy, T (2010) Law and Justice in Community (Oxford, Oxford University Press).
Kommers, D (1997) The Constitutional Jurisprudence of the Federal Republic of Germany (Durham NC and London, Duke University Press).
de S-O-l’E Lasser, M (2004). Judicial Deliberations: a Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, Oxford University Press).
Pakes, F (2014) Comparative Criminal Justice (Abingdon, Routledge).
Resnik, J and Curtis, D (2011) Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (Yale, Yale University Press).
de Tocqueville, A (1835) Democracy in America, Volume 1 (trans: Bowen, F), 4th printing (Alfred A Knopf).
Shetreet, S and Turenne, S (2013) Judges on Trial. The Independence and Accountability of the English Judiciary (Cambridge, Cambridge University Press).
Chapters, Journals, Articles and Reports
Appleman, L (2009) ‘The Lost Meaning of the Jury Trial Right’ 84 Indiana Law Journal 397.
Bell, J (1995) ‘English Law and French Law – Not So Different?’ 48 Current Legal Problems 63.
Cappelletti, M (1983) ‘Who Watches the Watchmen? A Comparative Study on Judicial Responsibility’ 31 The American Journal of Comparative Law 1.
Di Federico, G (2004) ‘Independence and Accountability of the Judiciary in Italy. The Experience of a Former Transitional Country in a Comparative Perspective’ in A Sajo and R Bentch (eds) Judicial Integrity (Leiden, Brill Publications) 181.
European Commission (2012) ‘On Progress in Romania under the Cooperation and Verification Mechanism. Final Report from the Commission to the European Parliament and the Council’ COM (2012) (Brussels, European Commission).
The European Commission for the Efficiency of Justice (CEPEJ) (2008) Checklist for promoting the quality of justice and the courts (Strasbourg, Council of Europe).
Fletcher, G (1981) ‘Two Modes of Legal Thought’ 90 Yale Law Journal 970.
Grimm, D (2009) ‘Domestic Courts and International Courts: An Illustration and a Conclusion’ in S Muller and M Loth (eds), Highest Courts and the Internationalisation of Law. Challenges and Changes (The Hague, The Hague Academic Press) 121.
Goodin, R (2008) Innovating Democracy. Democratic Theory and Practice After the Deliberative Turn (Oxford, Oxford University Press).
House of Lords Committee on the Constitution (2012) Twenty-Fifth Report on Judicial Appointments (London, House of Lords).
Inter-American Commission on Human Rights (2003) ‘Report on the Situation of Human Rights in Venezuela’ OEA/Ser. L/V/II.118, doc. 4 rev. 2.
Lord Hailsham (1978) ‘The Independence of the Judicial Process’ 13 Israel Law Review 1.
MacCormick, N (1993) ‘Beyond the Sovereign State’ 56 Modern Law Review 1.
Mance, J (2006) ‘The Common Law and Europe: Differences of Style or Substance and Do They Matter?’ Presidential Address to the Holdsworth Club of the University of Birmingham.
McGarry, J (2009) ‘Pionering Efforts: NJI’s Social Context Education Project’ in National Judicial Institute (Canada) (ed), 20th Anniversary Essays (Ottawa, National Judicial Institute).
Pettit, P (2010) ‘Representation, Responsive and Indicative’ 17 Constellations: An International Journal of Critical and Democratic Theory 426.
Sales, P (2012) ‘Strasbourg Jurisprudence and the Human Rights Act: A Response to Lord Irvine’ 2 Public Law 253.
Soeharno, J (2006) ‘From Rechtsstaat to Ruler in the Rule of Law: an Inquiry into the Increased Role of the Judiciary’ in A van Hoek et al (eds) Multilevel Governance in Enforcement and Adjudication, 157 (Antwerp, Intersentia).
Turenne, S (2004) ‘Judicial Responses to Civil Disobedience: A Comparative Approach’ 10 Res Publica 379.
Tushnet, M (2006) ‘Popular constitutionalism as Political Law’ 81 Chicago Kent Law Review 991.
Shetreet, S (1980) ‘On Assessing the Role of Courts in Society’ 10 Manitoba Law Journal 357.
Sossin, L (2009) ‘Should Canada have a Representative Supreme Court? Special Series on the Federal Dimensions of Reforming the Supreme Court of Canada’ SC Working Paper No 7.
Case Law
A v SSHD [2004] UKHL
AWG Group v Morrison Ltd [2006] EWCA Civ 6
Blakely v Washington 542 US 296 (2004)
Edwards v Attorney-General for Canada [1930] AC 124
Findlay v United Kingdom [1997] 24 EHRR 221
R v S (RD) [1997] 3 SCR 484
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Turenne, S. (2015). Fair Reflection of Society in Judicial Systems. In: Turenne, S. (eds) Fair Reflection of Society in Judicial Systems - A Comparative Study. Ius Comparatum - Global Studies in Comparative Law, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-18485-2_1
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