In Review:
New Publications on International and Comparative Law
Appointing Judges in an Age
of Judicial Power: Critical Perspectives From Around the
World. Edited by Kate Malleson and Peter H. Russell.
University of Toronto Press. 2006
When nobleman, political philosopher and judge Baron de
Montesquieu published his The
Spirit of the Laws in 1748, he probably did not realize
that he was igniting a silent revolution, the effects of
which are still being felt today. Montesquieu, in his treatise,
was the first major, or perhaps even the first ever, writer
to suggest that any legitimate national government requires
an independent judiciary. The founders of the American nation
and the writers of the U.S. Constitution picked up on this
radical notion and embodied it in Article III of that Constitution,
which established the first separate judicial branch in
history.
A significant issue growing out of Montesquieu’s
thoughts about judicial independence, which he did not address,
relates to the method by which judges are selected. Obviously,
the issue of an independent judiciary is closely related
to the question of judicial quality, which in turn is directly
related to the issue of how judges are selected.
As judges and court systems become more important and critical
players in the life and success of individual countries
and among the countries of the world, the issue of judicial
selection takes on added significance. That issue is the
central concern of this new book from the University of
Toronto Press.
The book is the result of a “series of meetings
of the International Political Science Association’s
Research Committee on Comparative Judicial Studies.”
Appropriately, the editors are a political scientist (Peter
H. Russell of the University of Toronto) and a law professor
(Kate Malleson of the Department of Law of Queen Mary,
University of London). Of the 22 contributors to the volume
are ten professors of law and eight political scientists.
Others authors include a judge, a lawyer, a representative
of a non-governmental organization, and a candidate for
a doctoral degree.
There are nineteen substantive chapters that focus on judicial
selection methods in particular countries or groups of countries.
Part One includes those countries that are “well established
democracies”: Scotland, England and Wales (the first
treated separately); Canada, the United States, New Zealand,
Australia, the Netherlands, Italy, France and Germany. Importantly
the second part focuses on international courts. The third
and last part includes “new democracies and transitional
states”: Israel, Egypt, South Africa, Namibia, Zimbabwe,
Japan, South and Southeast Asia; Russia and China. All of
the essays are written by eminent scholars and observers,
and each probes in some detail the methods, problems and
reform issues of judicial selection in the respective nations
or groups of states. They all provide very useful reference
material.
Of special interest to rule of law aficionados and for
those who are not interested in detailed descriptions of
the mechanisms of judicial selection in individual countries,
are the remarks in the Forward, Introduction, Conclusion,
and Part Two, which deals with international courts.
Canadian Supreme Court Justice Frank Iacobucci, author
of the Forward, states in the very first sentences why its
subject is so very significant:
And he makes clear that judicial selection methods determine
whether or not “well qualified candidates” do
in fact sit on a nation’s bench.
Co-editor Kate Malleson notes in her Introduction that
the appointment of judges has not been a subject of much
scholarly scrutiny. This is because, outside the United
States, the judiciary has largely been viewed as a “body
of legal experts or civil servants rather than a branch
of the state…” The “global expansion of judicial
power” has changed all of that; there is now an “increasing
interest in global selection across different political
systems.” She echoes Justice Iacobucci’s comment
in the Preface that “implicit in the scope of the
volume is a commitment to the idea of an independent and
strong judiciary as a defining feature of a healthy democracy.”
She also identifies two of the major themes that run through
the separate commentaries:
- Rethinking “the balance between judicial independence
and accountability in judicial appointments processes,”
which is complicated by different approaches required
for trial courts and appellate courts
- A “growing recognition of the importance of selecting
more diverse judiciaries.”
In addition, she recognizes the necessity of the “participation
in some form of the elected branches of government in the
appointments process of the highest ranks of the judiciary.”
Finally, she correctly observes that identifying what makes
a judge good and qualified is directly related to assumptions
about what judges do. “Greater specialization, more
emphasis on active case management, and the emergence of
more consumer-oriented adjudication processes in which judges
are service providers” change perspectives about the
qualities and qualifications of judges.
Well-known and well-established international lawyer Philippe
Sands is the co-author of the chapter on the selection processes
for international judges. He notes that the methods by which
international judges are selected was not an issue in 1960
when the International Court of Justice was the only international
court. Now, however, there are more than thirty international
courts employing more than 250 judges, thus international
judicial selection processes have become a matter of importance
and increasing interest. Sands and his co-author Ruth Mackenzie,
write:
Unfortunately, as the two authors note, there is little
knowledge about how international judges are selected;
the decision making processes of judicial selection are
rarely
“open to public scrutiny.” This situation must
be remedied because “it may tend to undermine the
legitimacy of those processes and could, over the longer
term, diminish the possibility that international judicial
bodies can operate effectively.” There follows
a review and analyses of what is known about the selection
processes for the different international courts. Thus
this particular section of the book is an important
contribution to the literature of international courts
generally and should provide a clarion call for more
knowledge and reform about international judicial selection
processes.
In the conclusion of the book, the co-editor, Peter H.
Russell, reveals in more detail the common themes and
ideas that run through the analyses of judicial selection
processes in the selected countries. He acknowledges immediately “the
inescapable political nature of the process of selecting
judges” despite the “understandable human
aspiration”
of insulating the appointment of judges from politics.
He notes that the individual analyses almost unanimously
discuss and analyze the issue of judicial independence
and judicial accountability. Of special interest to American
lawyers and political scientists is his acknowledgement
that “the
reforms attracting the most interest do not emulate the
American model of balancing a highly political and ideologically
directed executive control of nominations with a robust
and equally political challenge to nominees in a chamber
of the legislature.” Finally he echoes the introductory
comment that the various analyses demonstrate that “what
constitutes a high quality judiciary is changing and
broadening.”
The book has two identifiable deficiencies. It is regrettable
that, while an examination of three African countries is
included, there are no Latin American countries represented,
even though there are democracies in that area of the world.
In addition, although there is commentary on the Egyptian
judicial selection process, there is no discussion about
other less developed and more Islamic Arab states, and the
very real problems of judicial selection in those countries
where the legal system is wedded to or intertwined with
Islamic religious practices, the Sharia. Even though the
book is devoted to established and emerging democracies,
some commentary from an Islamic legal scholar on judicial
selection practices in true Islamic states would have been
helpful. Perhaps that is the subject of a future project
and volume of the political science committee that is responsible
for this valuable addition to rule of law literature.
Baron de Montesquieu would be pleased that his ideas about
the role of the judiciary in government are still exciting
interest over 250 years after he wrote about them.
By James G. Apple, Co-Editor, International
Judicial Monitor and President, International Judicial Academy
« Back to the first
page