In Regulating Judges: Beyond Independence and Accountability, editors Richard Devlin and Adam Dodek encourage scholars to develop a more nuanced understanding of courts and judges through the application of regulatory theory. Although the thought of “regulating judges” might raise the hackles of judges intent on preserving their independence from outside interference, the editors point out that the regulation of judges is already a universal practice that exists in a variety of forms, both internal and external. Regulation includes, for instance, standards relating to judicial recruitment and promotion, codes of ethics, complaint and disciplinary processes and budgetary controls. By thinking more explicitly about regulating judges, and the values and objectives that regulation serves, the editors propose that courts can be designed more effectively to embody preferred values and maximise the public good. Relatedly, by identifying underlying values and tailoring judicial regulation to achieve desired outcomes, courts can be periodically assessed to identify areas for improvement.
In the first chapter, Devlin and Dodek describe a framework for analysing courts by making an analogy to a pyramid. In this model, the pyramid is made up of a floor and three walls, each a mutually supporting structure. The floor and three walls represent values, processes, resources and outcomes respectively. Based on their experience in studying courts, Devlin and Dodek sketch out some of the details of these components of the pyramid, while acknowledging that their content is likely to vary from place to place. At the pyramidal base, values that may be seen as important to the community include impartiality, independence, accountability, representativeness, transparency and efficiency. Turning to the pyramid's walls, processes are institutional mechanisms “intimately connected with values” that might focus on judicial relations with external and state actors, recruitment, training, appeals, ethics, discipline, public and media relations, immunity and judicial performance evaluations (p. 10). Resources, which are “closely tied to the values we espouse”, include judicial budgets, the number of judges, judicial remuneration, physical infrastructure, support staff, technology and security (p. 10). Finally, the values, processes and resources are themselves geared toward outcomes as the third wall of the pyramid, which the editors suggest could include, at least at a general level, public confidence in the judiciary.
There are a number of questions that flow from Devlin and Dodek's pyramid. For example, while values are envisioned as the foundational floor of the pyramid, as they no doubt should be, why are outcomes simply another wall when they are similarly connected to all the other components? How should different values be weighed against each other, particularly where they are in competition? Why does the judicial role not feature more prominently in the framework? While all judges resolve disputes, the kinds of disputes heard by courts vary, especially in relation to constitutional questions and rights enforcement. These different roles are likely to affect the court's identity and shape the values that the community sees as important. Nevertheless, the pyramid represents a creative starting point for thinking about, analysing and discussing judicial systems. It also presents a useful framework for reformers who seek to design, assess and improve the workings of courts and judges and, more generally, for ensuring that a judicial system is a rationally constructed, result-oriented institution that serves the public interest. By focusing on a broad array of dimensions of courts and judges, the pyramid sees courts as highly contextualised and complex institutions, made up of interconnected formal and informal norms and influenced by a variety of internal and external sources. In other words, the pyramid is a practical exercise in thinking robustly about courts and judges, how they are perceived and their relationships with others. Through the pyramid, Devlin and Dodek succeed in making a compelling case for moving past the traditional, and impoverished, focus on the dichotomy between independence and accountability that pervades the scholarly discourse.
In light of the proposed pyramid, the book brings together 19 country-specific contributions from both senior and emerging scholars. The individual chapters are short informational studies, averaging just under 20 pages, and typically provide a description of rules and processes accompanied by a brief narrative of significant events in the particular jurisdiction. Some contributions are geared toward a high level overview of the courts, while others focus on a selected theme. Both common and civil law countries are represented. Several chapters engage more closely with the pyramidal framework than others, which Devlin and Dodek see as confirming “the authenticity of the contributions and the particularity of the challenges of judicial regulation” (p. 12). Instead of the pyramid acting as a “scientific formula to be single-mindedly applied”, it provides contributors with “potential scaffolding” for thinking about judicial regulation (p. 12). In the second half of the chapter, Devlin and Dodek present a synthesis of the various contributions, which offers comparative insight into common challenges and approaches. This synthesis is a valuable part of the text, as many readers will be interested in gaining knowledge of the different jurisdictions surveyed. It is useful to learn, for instance, of the diverse approaches to judicial ethics codes, the creation of which is motivated by the values of accountability and transparency. There are examples of countries without a code; for instance, Germany (although there are recent efforts by the Constitutional Court to develop non-binding guidelines for judges who give paid lectures or who work in the private sector after retirement, in addition to certain statutory requirements) and the US, where the judges of the Supreme Court are the only judges in the country not subject to an ethics code. There are countries with a private code available only to the judges themselves, such as Singapore, and other countries with advisory guidelines as opposed to binding codes, such as Canada, where the Ethical Principles for Judges states that its guidelines are “advisory in nature … and shall not be used as a code or a list of prohibited behaviours” and that they “do not set out standards defining judicial misconduct”. Such comparative observations raise questions about how values are best served through judicial codes of ethics, and feed into an analysis of judicial complaint and disciplinary processes. It would have been especially interesting to see each contributor engage in a comparative exercise with other contributions, though perhaps this is a good reason for a second volume or future symposium on the theme of judicial regulation where this can be done in a dynamic forum.
A few words on a handful of the chapters. In looking at the Australian judiciary (ch. 2), Gabrielle Appleby and Suzanne Le Mire observe that there is judicial resistance to reform efforts and considerable self-regulation. The question of regulating judges in Australia must be viewed in light of the ongoing debate on the desirability of judicially-enforced constitutional rights, which brings with it a larger judicial role in formulating public policy. The authors note a friction between the judiciary and the executive, particularly with respect to the Commonwealth Attorney General who has become less publicly supportive of the courts. In Canada (ch. 4), Devlin and Dodek observe that there is some judicial opposition to the very idea of regulating judges. Notably, in 1997, the Supreme Court of Canada pronounced that judicial independence is an unwritten constitutional principle capable of invalidating laws made by the elected branches. This game-changing decision has given Canadian courts considerable power in regulating courts and judges. For example, judicial independence has been invoked by judges to rebuff efforts to reform civil procedure. It has also been used to reject across-the-board salary reductions to provincial court judges in times of economic crisis, which has resulted in considerable litigation on questions of judicial compensation (when the Supreme Court of Canada mandated the establishment of salary commissions to recommend judicial compensation, it held that its recommendations should “not be set aside lightly”). Ray Worthy Campbell and Fu Yulin's fascinating chapter on China (ch. 5) highlights the important context of judicial regulation in that country, particularly the ever-present influence of the Communist Party of China, and new reforms designed to create a modern, professional and efficient judiciary. The authors also discuss the different meaning of judicial independence in China, in the sense that independence focuses more on the institution as opposed to the individual judge, and how the degree of independence varies in practice depending on the type of case. Graham Gee's chapter on England and Wales (ch. 7) focuses on the post-2005 reform era, and an increasingly formal partnership model between courts and the other branches of government that seeks to achieve high standards of accountability, transparency and efficiency. One especially interesting point in this chapter is the author's observation that English judges have come to understand the difference between judicial self-interest and the public interest. Courts are seen as a public service, with the implication that not every newly proposed regulation (especially related to resources) should be treated as a threat to judicial independence. Tony George Puthucherril's chapter on India (ch. 9) notes the incredible development of suo motu litigation, where Supreme Court judges can initiate their own cases by shedding the traditional limitations of the adversarial litigation process. The author points to judges' using judicial independence as a shield to protect themselves from new regulation that seeks to promote transparency and accountability. Limor Zer-Gutman's chapter on Israel (ch. 11) discloses an innovative external regulatory mechanism in the Ombudsman of the Israeli Judiciary, who is appointed to hear complaints about judges. The Ombudsman also publishes opinions and organises lectures to strengthen judicial accountability and efficiency. In Marco Fabri's chapter on Italy (ch. 12), the author paints a dismal picture of the judiciary. The reader is left with the impression that the Italian judiciary suffers a lack of legitimacy, extensive backlogs and extraordinarily lengthy proceedings, which can be connected to extensive self-regulation and a powerful judicial elite. Alexi Trochev's excellent chapter on Russia (ch. 18) describes the “duality of the state” between administrative and constitutional courts. This dichotomy animates judicial regulation, including values where administrative judges value loyalty and political favour while constitutional courts value the rule of law and judicial independence. Finally, Sarah Cravens’ chapter on the US (ch. 20) provides an overview of the incredible array of judicial regulation of state courts, including the use of elections for judicial selection in a significant number of states and the problematic role of money and private influence in judicial campaigns.
Overall, Devlin and Dodek's book makes a fine addition to comparative legal scholarship, and comparative lawyers interested in courts and judges will find it to be a useful resource. While the case studies are relatively short, the editors designed the book to be both accessible and readable, and they have succeeded in achieving those goals. The editors’ ambition to encourage a broader view of courts through the application of regulatory theory, and by explicitly considering values, processes, resources and outcomes, is to be applauded as it stands to lead to a richer and more nuanced understanding of the judicial institution.
