The Greek Conference - Crete, May 2004 Papers

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SOME ASPECTS OF JUDICIAL ETHICS

JUSTICE ROBERT McDOUGALL *

Introduction

It is common to hear assertions that the outcome of a court case - civil or criminal - was "unjust" or "unfair"; or that "there's no justice". In some cases, those complaints are directed at judicial officers; in others, at the law itself. In the former case, the vast majority of complaints (leaving aside cases of mistaken or wrong decision) involve a failure to understand that:

  1. the role of the courts is to administer justice according to law; and
  2. the role of the ethical judge is to perform that function in the interests of society as a whole.

My aim therefore is to examine some fundamental aspects of judicial ethics. I do not intend to look at what might be called "bread and butter" issues (although in ignoring them, and by so describing them, I do not wish to suggest that they are of little importance; quite the contrary): matters relating to respect for the law, conduct in court, involvement in social or political discourse, misuse of the prestige of the judicial office, and the like.

For an Australian reader, such matters are dealt with clearly and comprehensively by the Hon. J B Thomas (formerly a judge of the Supreme Court of Queensland) in Judicial Ethics in Australia1 and an American perspective is given by Noonan & Winston (eds)2 The Responsible Judge: Readings in Judicial Ethics.

What I wish to consider includes the following issues:

  1. the search for "truth" and the role of the judge in that search;
  2. the concept of justice according to law, as compared with both more general and idiosyncratic notions of justice or fairness;
  3. the extent to which concepts of "ethics" and "justice according to law" are compatible.

I look at those issues in the context of the common law system. I do not do so because I have some belief in the inherent superiority of that system, but only because it is the system that I know and, to some extent, understand. Further, and to avoid difficulty, I shall look at the issues in the context of civil proceedings.

Because the audience may include both non lawyers and lawyers who are not familiar with the common law system, I intend to propound a short explanation of the nature of the rule of law and the role of judges in the common law system. I hope that those lawyers who are familiar with the common law system (and specifically my judicial colleagues) will forgive me for what might (to them, quite reasonably) seem unnecessary.

Law and the Judiciary

There is, I think, an inherent and necessary relationship between the concept of law and the existence of a judiciary. That is because enforceability is the fundamental characteristic of any system of law; and in most systems of law, enforceability is the role, and only purpose, of the judiciary.

Law may be regarded as the collection of principles and regulations emanating from the government of a state by which the state and its citizens are bound. Of course, the sources of those principles and regulations may vary from state to state and system to system.

In a common law system, the sources of those principles and regulations include statute law - law emanating from, or under the authority of, the legislature; and common law (or judge-made law) - the principles of law based on, or emanating from, judicial decisions. (I use the term "common law" in preference to "judge-made law" not to seek to avoid the proposition that judges make law - they do, and did even when they said that they were not - but out of familiarity.)

A society without some system of law is, in practical terms, unimaginable. The role of law is to regulate the dealings, and prescribe the rights and liabilities, of those who are bound by it. This applies both as between citizen and citizen and as between citizen and state. It is fundamental to the proper functioning of a system of law that the laws are capable of enforcement. But it is equally fundamental that the citizens and the state have confidence in the process of enforcement (including, in that, those by whom enforcement is carried out). That is because, at the end of the day, the system of law and law enforcement requires, to work, that those who are subject to it accept it; and acceptance requires confidence in the integrity of the system.  

Another aspect of confidence is predictability.   In a speech to a conference of Supreme and Federal Court judges held in Auckland on 27 January 2004, Chief Justice Gleeson said of judges:

"The nature of their task requires of judges a high level of predictability and consistency of behaviour. In the area of civil justice, the great majority of potential legal disputes never go to court, because citizens and their lawyers have a good idea of what the result would be if there were litigation. Of the tiny fraction of disputes that result in court proceedings, most are settled without judicial decision. Again, this is usually because the parties and their lawyers share a common understanding of the likely outcome. It is generally regarded as unjust, indeed scandalous, if a lawyer has to advise a client that the result of a case will depend mainly on the identity of the judge who is assigned to hear the case. In the area of criminal justice, the same applies. ... The viability of the system of civil justice, and the integrity of the system of criminal justice, depend upon a substantial level of predictability and consistency of judicial behaviour."     

Judges are entrusted with the function of enforcing the laws of the state, as between state and citizen and as between citizen and citizen. In so doing, judges exercise the coercive power of the state. It is a grave responsibility.

In the State in which I am a judge, New South Wales, the judicial oath or affirmation taken by all judges acknowledges an obligation to "do right to all manner of people after the laws and usages of this State without fear or favour, affection or ill-will". A commitment in essentially similar terms is, I think, made by judges in all common law jurisdictions. The essence of the commitment is to do right according to law, untrammelled by bias.   

Law, Justice and Ethics

I have looked briefly at the concept of law.

The concept of justice is one that has troubled humans for as long as the history of recorded thought shows. It has long been thought that there must be an abstract, or ideal, form of Justice: see for example Plato's discussion of Forms3, including the Form of the Good in The Republic and the Form of the Just in Parmenides.

For many people - particularly litigants - justice is not an abstraction. For some, justice may be equated with fairness; for others (litigants) justice is all too often equated with personal success.

Thus, a number of concepts of justice arise: objective justice (the Form of the Just); justice as fairness (often expressed in objective terms but in reality, I think, a form of subjective justice); justice as the triumph of one side (on any view, subjective justice - in any case, on this approach, there are two, inconsistent, just outcomes); and justice according to law.

It is this last concept that informs, and dominates, the performance of judicial duties.

As with justice, conceptions of ethics have always been with us. Ethical duties have been propounded in many ways by many thinkers over the centuries; and for each thinker whose views have survived, one may confidently think that there are hundreds or more whose views have not survived.

In a general sense, the concept of ethics may be regarded as a system of moral principles by which actions can be judged; or, more specifically, as rules of conduct recognised in respect of classes of human actions.      

Ethical principles of themselves do not have the force of law, in the sense that I have explained that term. Ethical principles may inform legislation (or judicial decisions); and from time to time ethical principles may be enshrined in legislation. But in this latter case they have the force of law because they are adopted in or by valid laws. Ethical principles may well help to govern society, but in general they do so because of their own force and because people adhere to them voluntarily, not because, as ethical principles, they have the force of law. Where, through legislative adoption, they acquire the force of law, they become enforceable as laws, not as ethical principles. The distinction, from the perspective of a judge, is fundamental.

The Judge's Role

It is also fundamental that, in a common law system, appointment to the office of judge entails an acceptance of the body of law by which the state and its citizens are bound. Specifically, it requires that the judge accept:

That is one of the concepts that is embodied in the idea of "the rule of law". (For some people, the concept of the rule of law seems to have built into it a "right" to disobey law unless it corresponds with something that may be seen as unalterable "natural law" or with some asserted basic law or fundamental right, or some concept of fairness; but for a judge there is no such option.)

The other matter that is fundamental to the role of a judge in the common law system is that the system is what is called an adversarial system. That means, in substance, that in civil litigation:

The judicial role is performed by making findings of fact on the evidence that the parties have adduced, and by applying the relevant principles of law to the facts so found. (I interpolate at this point, that more difficult issues arise where the outcome requires the exercise of a discretion - a point to which I will return.) The judicial role does not involve telling the parties what the dispute is, or what the issues are, or telling the parties what evidence is to be called. Except in very limited circumstances, the judge (or the court) does not seek out or call evidence.

Truth and Justice in a Common Law System

Many people hold the view that the object of legal proceedings is to discover "the truth" and that the outcome should be "justice". The latter concept, as I have indicated, conceals within a bland and irreproachable word a multitude of discordant meanings. The former is, likewise, susceptible of more than one understanding.

I am not concerned with such questions as whether there is absolute truth; equally, I am not concerned to promote a doctrine of relativism. However one regards truth, it would ordinarily be seen as the product of a process of exhaustive enquiry. In other words, to arrive at "truth", one must have access to all available material (or evidence) bearing on the question and a proper opportunity to evaluate it.

The legal system is not concerned with truth in this sense. At best, the task of the judge is to determine, from the evidence brought by the parties (at least some of which will be in conflict) where the truth lies. But the truth so determined can never be more than truth as between the parties. In other words, the judge decides no more than that, from the evidence that the parties have seen fit to adduce, what is acceptable and what is not.

It is, therefore, essential for the judge to accept that what he or she does, in finding facts, may not equate to the outcome of a search for the truth. In so doing, the judge must accept that his or her role is to decide the dispute between the parties according to the evidence that they have seen fit to adduce and the applicable principles of law.

Equally, the concept of a just outcome is necessarily circumscribed. There are at least two factors that circumscribe it. The first is that the outcome is determined by reference to the evidence that the parties have adduced, and (where necessary) by the process of judicial sifting of that evidence so as to arrive at "truth between the parties". The second factor is that the outcome is determined by the application, to "truth between the parties" so found, the applicable principles of law.

Conflicts and their Resolution

The judicial process involves compromises; and those compromises are productive of conflict. The compromises arise because the trial process is, generally, incapable always of ascertaining "the truth" in any substantive fashion (because it is limited both by the issues for decision, and by the evidence that the parties choose to adduce). The common law system may be an effective way of determining truth as between competing contentions. (Opinions on this vary, and it must be said that, even among those who profess adherence to the values of the common law system, there has been a decline, over the past two centuries, in acceptance of the perfection of the common law trial process.) It is not an instrument for determining truth at large.

Equally, the common law system is designed (as, I think, in substance most legal systems are, or should be) to achieving justice under, or according to, law. That means that the role of the judge is to apply binding principles of law (whatever their source may be). It does not entitle, or empower, the judge to decide according to some idiosyncratic concept of fairness or justice.

I referred earlier to the question of discretion. In many cases, the outcome will reflect a balancing of discretionary considerations: for example (to leave the field of civil procedure) a sentencing determination consequent upon a finding of guilt, a disciplinary order, or a civil penalty decision. In the civil area, too, many remedies are discretionary: for example, injunctive relief; the appointment of a receiver; a decree for specific performance; or an order for indemnity costs.     

The judge cannot apply idiosyncratic or subjective notions of fairness or justice - whether those of the judge, or of philosophers, or of other individuals or groups within the community. If the judge cannot accept the supremacy of the will of Parliament, and the authority (subject to Parliament) of the body of judge-made law, than he or she cannot perform the judicial role.

Even where discretionary considerations are involved, the basic principles upon which the exercise of discretion is made will, in most cases, be well known. And the process is not "at large". The discretion is not unlimited; there will be, at the very least, a requirement that it be exercised judicially. The effect of that requirement is that the judge cannot apply some purely subjective and idiosyncratic process of thought, or concept of "fairness", to determine the outcome.    

Inevitably, for a judge, the process of judging from time to time involves conflict. That is because, from time to time, the judge may perceive that the outcome is not "just". That may be for a number of reasons.

  1. First, it may be apparent that one party has presented incomplete evidence and has been successful in thwarting the efforts of the other party to get at evidence. (This is not a place for a discussion of the pre trial procedures that, in some ways, enable one party to have access to, or get at, evidence or information in the possession or knowledge of the other.)
  2. Second, the judge may perceive that the trial process has been conducted to the disadvantage of one party, because of what might neutrally be called an imbalance of resources.
  3. Third, the judge may perceive that the application of established principles of law produces an outcome that is, subjectively, or even objectively, "unfair". Many would argue that if something is "unfair" then, if it is the product of the civil justice system, it must equally be unjust.

For the judge, such conflicts are capable of resolution in one of two ways. First, he or she may resign office. That will resolve the conflict for the individual, but it will not resolve the problem. Second, the judge can continue in office and bear steadfastly in mind that his or her duty is, so far as ability permits, to decide disputes on the basis of existing principles of law, and thereby to do justice according to law.

For the judge who decides to remain in office, ethical performance of judicial duties necessarily requires continued adherence to the terms of the judicial commitment to which I have referred (howsoever, in detail, it may be expressed).

The performance of that duty is clear in what may be called "easy cases". By this, I do not mean cases where the outcome is consistent with the judge's (or the public's) idiosyncratic notion of fairness or justice. I mean cases where, once the facts are found (ie, once truth as between the parties is determined), the outcome is determined by the application of settled legal principle.

For the ethical judge, such cases are easy because the legal solution - in the sense of dispositive principles of law - is clear. That may often be so even where the solution involves the exercise of a discretion.

It is in "hard" cases - cases where, even once the facts are found, there is, apparently, no dispositive principle of law to decide the case - are those where fidelity to the judicial undertaking may be tested. In such cases, the temptation may well arise to decide the case according to some general notion of fairness or justice. However, even in "hard cases", I do not think that simple resort to concepts of justice or fairness is sufficient.

A hard case, by definition, is one where there is no applicable statute law and where the common law does not provide a dispositive rule. In such cases, I think, the role of the judge is to seek to build on the existing body of law in some way: by finding the underlying rationale, or principle, in an analogous body of law and testing the applicability of that principle or rationale to the case in hand.

It may well be that such creativity is the function of appellate courts (or even of the ultimate appellate court) rather than that of a judge of first instance. It is certainly an application of what I think is the clear principle that judges do, from time to time, make law. But it is not wrong, or illegitimate, because such a decision may be seen as the act of a judge making law.

Where Parliament has spoken then judges are bound by what Parliament has said. There is no room for judicial law making - although, of course, it is the duty of the judge to seek to interpret and apply what Parliament has said.

Equally, where the dispositive principle is provided by the common law, then it is the duty of the judge to apply that principle to the extent that it is applicable. (I leave aside, as irrelevant to the scope of this discussion, the role of ultimate appellate courts in shaping, and indeed changing, the common law.) But where there is neither legislative nor common law principle, the judge is driven to fashioning a new principle based on a consideration of existing principles and of general, or extra legal, principles that may be seen to underlie existing formally valid legal rules. But even this does not involve the application of principles of fairness or justice except to the extent that they can be seen to have achieved recognition in formally valid legal rules that are capable of expansion, by analogy, to fit the case at hand.

Conclusion

For the judge, therefore, the fundamental ethical concern is to accept the limitations that affect performance of the judicial function. That means that the judge must leave it to the parties to define and articulate the dispute and to decide what evidence is to be called. The judge must accept that, where existing valid legal rules (statutory or common law) are dispositive of the outcome, then the case is to be decided accordingly without regard to notions of fairness or morality or even (in the general sense) justice. The judge must also accept that, where there is no directly applicable dispositive legal rule, the search for an outcome must nonetheless be guided by principles derived from the existing body of law and not by idiosyncratic or subjective notions of fairness, morality or justice.

In short, and to return to my starting point, ethical performance of the judicial role requires the judge, to the best of his or her ability, to decide disputes according to law. It is only in that way that public confidence in, and respect for, the law will survive. And it is only for so long as the law is respected that it will serve its essential function.

NOTES

* Justice of the Supreme Court of New South Wales

1 J B Thomas, Judicial Ethics in Australia, 2nd edition, LBC Information Services, 1997.

2 Noonan & Winston (eds)2, The Responsible Judge: Readings in Judicial Ethics (Praeger, 1993)

3 Plato, Form of the Good in The Republic at 505 D ff, and the Form of the Just in Parmenides at 130B

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Copyright 2004. Greek Legal and Medical Conference