text:
Judicial Independence: The Judge as a Third Party to the Dispute
by Lorne Neudorf*
2. Developing a Better Understanding of Judicial Independence
2.2 Previous Scholarship
2.3 Looking at the Past
2.3.1 The Concept of Tradition
2.3.2 Ancient Egypt and the Dawn of Impartiality
2.3.3 Connecting the Past to the Present
2.4 Impartiality under the Hobbesian Social Contract
2.5 Impartiality: An Innate and Path-Dependent Tradition
3. Impartiality and Judicial Independence
3.2 The Perception of Impartiality
3.3 Connecting Impartiality to Judicial Independence
3.4 Independence and the Problem of Accountability
4. International Dimensions
4.2 The Unqualified View
4.3 Critique
5. Judicial Independence in Canada
5.2 Contemporary Meaning
5.2.1 The Written Text
5.2.2 The Unwritten Constitutional Principle
5.2.3 Using the Unwritten Constitutional Principle
7. Endnotes
In this article, the author sets out a conceptual framework for judicial independence. From the starting point of adjudication as the basic function of the judiciary, the author embarks on an historical inquiry to shed light on the role of the judge in resolving legal disputes. The inquiry reveals a tradition of adjudicative impartiality that stretches back to the legal system of ancient Egypt. While all judges strive to maintain the status of a third party to the dispute, the historical development of an adjudicative tradition in Egypt resulted in a path-dependent conception of the judicial role that influences present understandings of judges, most prominently seen in the continuing use of the scales of justice hieroglyph. Given its significance to the resolution of disputes, judicial impartiality is the unifying theme in the theory of law advanced by Hobbes, who was keenly aware of the Egyptian practice. According to Hobbes, in the state of nature, each person possesses complete liberty. In order to enter into a peaceful society, individuals must give up the right to decide their own disputes. When individuals no longer act as their own judges, a third party must be called upon to resolve conflict. This decision-maker must maintain third party status by avoiding close connections with the parties or the issue in dispute in order to maintain legitimacy. Given this understanding, the author proposes the perception of impartiality as the rationale of an independent judiciary. Judicial independence seeks to preserve the status of the judge as a third party to the dispute by creating the necessary space between judges and actual and potential sources of improper influences. Because the definition of improper influence is determined by individuals from the community, the principle of judicial independence is significantly context-dependent. Finally, the author critiques the doctrine of judicial independence in Canadian law from the perspective of this conceptual framework.
2. Devloping a Better Understanding of Judicial Independence
"[I]t is certain that when public judicatories are swayed, either by avarice or partial
affections, there must follow a dissolution of justice, the chief sinew of society."
Sir Thomas More, Utopia (1516)
Judicial independence has many friends and defenders. Judges claim to possess and jealously guard it, a wide range of national legal traditions guarantee it in their fundamental laws and political scientists exalt it as the hallmark of liberal democracy. Support for judicial independence extends far beyond the borders of individual states as well. It has become something of an international obsession. Commentators score and comparatively evaluate domestic judiciaries, the results of which are used by international organisations to target judicial reform projects.1 Telling examples of the pervasive support of judicial independence include the international community's reaction to the suspension of Pakistani judges in late 2007 and the impeachment and removal of the Chief Justice of Sri Lanka in 2013.2
Yet, despite its tremendous popular support, a deep understanding of judicial independence remains elusive. Little scholarship has been written exploring the concept of an independent judiciary. Commentators have lamented this lack of clarity: one scholar describes judicial independence as under-theorised while another portrays the world of liberal democracy eagerly waiting for a theory of judicial independence to emerge.3 What would a theory accomplish? A better understanding of an independent judiciary would provide a structure from within which further research and discussion could take place. It would identify the underpinning rationale of an independent judiciary and highlight its key elements. Although a general theory alone is unlikely to resolve concrete challenges, it could generate potential solutions by suggesting the degree of independence that is desirable and by providing a yardstick by which to assess the effectiveness of judicial independence measures.
The present theoretical state of judicial independence is hardly satisfactory when assessed by these ambitions. The legal principle of judicial independence remains entangled with other concepts that provide little clarification of its purpose and meaning: justice, fairness, impartiality, corruption, bias, separation of powers and the rule of law. Scholarship on judicial independence is frequently parochial, focusing on events in particular legal traditions. On the occasion where judicial independence is considered more broadly, scholars tend to advocate a particular conception of the judicial role, which is often chimeric. The United Nations' Basic Principles on the Independence of the Judiciary, for example, provide that judges must be free from "any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason."4 While establishing a starting point for understanding judicial independence, the view of a judge who is free of any restriction does not provide guidance in identifying what is necessary to achieve an independent judiciary and neglects to take into account the local circumstances that might shape judicial institutions.
The first part of this article builds a conceptual framework for the legal principle of judicial independence. After reviewing previous scholarship, the search for the theoretical underpinnings of an independent judiciary begins with an often-neglected historical inquiry into the adjudication of disputes. Early history reveals the dawn of a tradition of judicial impartiality in ancient Egypt. Understanding the development of this tradition suggests the importance of impartiality to the process of third party adjudication. Hobbesian social contract theory further confirms this view. In order to escape the state of nature, individuals enter into an agreement to maintain peaceful relations. This social contract requires persons to give up certain liberties, including the right for an individual to decide his or her disputes. Third party adjudication becomes necessary to resolve conflicts over rights and entitlements when individuals no longer have the ability to decide disputes themselves. Partial or biased decision-makers stand to lose legitimacy as they will be rejected by the parties when they are not true third parties to the dispute. Impartiality therefore acts as a legitimising force for third party adjudication. However, given the difficulty (and undesirability) of finding an adjudicator with a "view from nowhere",5 the perception of impartiality supplies the necessary legitimacy for third party adjudication. In order to maintain the perception of impartiality, the judge must be seen as sufficiently independent from actual and potential sources of improper influence. The minimum degree of judicial independence is satisfied when litigants perceive adjudicative institutions and judges as impartial resolvers of legal conflict. In other words, the judiciary holds the requisite independence when a reasonable observer from the community would, as a potential litigant in a legal dispute, perceive a process of impartial adjudication.
The second part of the article takes this context-dependent understanding of judicial independence and applies it to the Canadian doctrine of judicial independence as a case study. Canada is selected on the basis that its judges often promote the country as an international leader in the independence of the judiciary. Although measures providing for the separation of the judiciary from the executive and legislative branches appear in the text of the Constitution, a broader principle of judicial independence has developed in Canadian law. In the 1997 landmark case of Provincial Judges Reference,6 the Supreme Court of Canada recognised judicial independence as an unwritten constitutional principle that is capable of legally invalidating executive and legislative action. The Provincial Judges Reference case, along with a number of other court judgments, present challenges that could paradoxically serve to undermine perceptions of judicial impartiality.
This part builds a conceptual framework for the legal principle of judicial independence that is founded upon the core judicial function of adjudication. By setting out a framework that aspires to unlock the most pressing problems of an independent judiciary, this part seeks to advance a better understanding of judicial independence. It is useful at this stage to define the terms and premises of this endeavour. First, it is a premise that a peaceful society is a good to be strived for. A peaceful society refers to an association of persons recognising established rules as binding and generally complying with such rules.7 Second, it is assumed that persons tend to act rationally and in their self-interest and that the pursuit of self-interest is likely to lead to conflict with others doing the same. Third, while many forms of conflicts can arise, this part is concerned with disputes containing a legal element, which is a disagreement over conflicting legal rights. This broad definition of conflict includes both questions of law (ie, the interpretation of legal rules) and questions of fact (ie, actual events that occurred and inferences drawn from those events). Fourth, as individuals are not always capable of resolving conflicts in ways that promote harmonious social relations, a peaceful society must maintain a mechanism to resolve disputes that arise.8 The judiciary, established by the state as a legal institution to adjudicate legal disputes, fulfils this essential role.9
The inquiry into the legal principle of judicial independence begins with an understanding of the history and development of adjudication as the basic function of the judiciary.10 In building a conceptual framework for judicial independence, this section first considers previous scholarship on judicial independence. It then looks at adjudication within its historical context by examining the often-neglected ancient origins of judicial decision-making. Finally, it draws upon the Hobbesian social contract as applied to the process of adjudication to further develop a conceptual framework for judicial independence.
Legal scholarship exploring the concept of the legal principle of judicial independence can be divided into two general approaches. The first group of scholars has sought to develop a universally-applicable model of how an independent judiciary should work. Through their work, they prescribe what is needed to achieve it in terms of legal rules and other institutional arrangements. The second group of scholars sees judicial independence as an idea that is shaped by context although it can have one or more core features that can be seen across different legal systems.
Shimon Shetreet stands out as the key advocate of a universal approach to judicial independence both through his work on creating minimum standards of judicial independence and his scholarship. In his co-edited 1985 volume Judicial Independence: the Contemporary Debate,11 which includes case studies of judicial independence in a number of countries, Shetreet sets out to define a 'modern conception of judicial independence' that includes institutional protections for judges both individually and collectively.12 While observing that law and practice sometimes diverge, Shetreet seeks to transcend domestic differences by establishing a rationally constructed and normative understanding of judicial independence that can be seen as universally applicable.13 In terms of devising universal judicial independence standards, Shetreet selects institutional arrangements that are "shared by a majority of legal systems" on the basis of their perceived importance to the administration of justice.14 Shetreet takes a broad view of judicial independence. In order for courts to resolve disputes impartially and effectively, particularly in human rights cases, the judiciary must be free from any external pressure or influence.15 In his contribution to the 1985 volume, he describes what he sees as the essential elements of an independent judiciary, which were incorporated into the 1982 International Bar Association's Minimum Standards of Judicial Independence16 (of which Shetreet acted as General Rapporteur). In addition, he was closely involved in the 1983 First World Conference on the Independence of Justice in Montreal that approved the Universal Declaration on the Independence of Justice,17 which led to the United Nations' Basic Principles on the Independence of the Judiciary,18 later endorsed by the international community.19
Over the past two decades Shetreet has continued to advocate a universal approach to judicial independence by organising a series of conferences that work on updating international judicial independence standards. For example, in 2007 he organised several meetings of academics and judges to draft revised minimum standards of judicial independence, styled the Mount Scopus International Standards on Judicial Independence.20 These standards were approved by a conference in Jerusalem the next year. According to Shetreet, new standards were required in light of the changing judicial role in the protection of human rights and economic development.21 The 2008 version of the Mount Scopus Standards sets out detailed institutional arrangements that expand upon the Basic Principles and other international instruments and regional standards. The Mount Scopus Standards begin by stating that an independent judiciary is an institution of the highest value in every society and an essential component of liberty and the rule of law.22 Independent courts resolve disputes and administer the law impartially, promote human rights within the "proper limits of the judicial function" and ensure that all people are able to live securely under the rule of law.23 The Mount Scopus Standards prescribe a series of judicial independence rules relating to judicial appointment and promotion, discipline and removal, tenure, compensation, transfers, case assignment, immunities, the use of executive pardons to commute a judicial sentence, reversals of judgments by the elected branches, public statements on the judiciary by the elected branches, the conduct of the judiciary, the use of special tribunals as an alternative to the ordinary courts, legal guarantees of an 'independent judiciary' and the administration and operation of the courts.
In addition to developing international judicial independence standards, Shetreet's scholarship highlights the role of standards in shaping domestic courts. In a 2009 article, he identifies a three part cycle of normative influence between the domestic and international levels.24 According to Shetreet, the cycle begins with an original domestic development that better protects the independence of the judiciary, such as early 18th century England when judges were first provided with tenure and fixed compensation. This new development will influence scholarly thinking on judicial institutions and eventually make its way into the international standards. International standards, in turn, influence the development of other domestic courts with "significant and dramatic" results.25 According to Shetreet, this is true even in England where protections for judicial independence originated. England was itself influenced by international standards relating to the separation of powers. The Mount Scopus Standards are presented by Shetreet as one of the most important international standards that influenced domestic conceptions of an independent judiciary and which helped to create a culture of judicial independence.
More recently, in his 2012 co-edited volume The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges,26 Shetreet focuses on the contributions of international standards to what he describes as a cultural achievement of judicial independence. Shetreet writes that judicial independence is an essential feature of the administration of justice in every country.27 According to Shetreet, five components are necessary to create a culture of judicial independence: (i) creation of institutional structures; (ii) establishment of constitutional infrastructure; (iii) introduction of legislative provisions and constitutional safeguards; (iv) creation of adjudicative arrangements and jurisprudence; and (v) maintenance of ethical traditions and a code of judicial conduct. Through a detailed discussion of the written rules and institutional arrangements that comprise these five components, Shetreet offers a universally applicable roadmap to achieving a culture of judicial independence.28 While maintaining a broad conception of judicial independence, he emphasises the importance of judicial accountability and the proper relationship between the judiciary and the other branches of government, which should be marked by partnership and dialogue.29 He cautions that after a culture of judicial independence is achieved at the domestic level, the independence of the courts may be still be challenged by internal threats.30 To adequately secure judicial independence, Shetreet endorses the constitutional entrenchment of a general guarantee to judicial independence despite the more limited wording of the Mount Scopus Standards that permits the recognition of judicial independence either constitutionally or in ordinary law.31
While much of the judicial independence scholarship tends to advocate a preferred view of an independent court (and what is needed to achieve it), some scholars have called for a more contextualised approach to the study of judicial independence, drawing upon studies of courts at the domestic level. These scholars generally conduct comparative studies of different legal systems and levels of court, which demonstrate the importance of context. In her recent edited collection,32 which includes numerous studies on judicial independence from countries around the world, Anja Seibert-Fohr observes the "vast differences" among institutional arrangements related to the judiciary and approaches to judicial independence.33 Although distinctions among the countries studied might suggest that the legal principle of judicial independence is simply a rhetorical device, Seibert-Fohr finds that there are shared normative dimensions of judicial independence that emerge from a comparative analysis. According to Seibert-Fohr, the core of judicial independence is the protection of the right to due process.34 Considering universal standards of judicial independence, she writes:
The international norm should be seen in its functional role of promoting fair trial standards. Conceptualizing judicial independence as a functional principle which provides for an obligation of result rather than of means helps to identify it as an international norm which nevertheless gives room for diverse and context-specific implementation. Comparative law can play an important role in this exercise, not only to identify the common core in order to develop a truly international principle but also as a caveat not to corrupt the validity of the concept by reading notions into it which are not commonly agreed on.35
Seibert-Fohr argues against the application of universal judicial independence standards, writing that international benchmarks should not be applied to all countries as "[o]ne should not generalise by rigid specifications about which structural arrangements are consistent with judicial independence because this cannot often be determined in the abstract".36 Instead, she calls for a new conceptual framework for judicial independence and a more contextual approach to judicial reform initiatives that can be assisted through detailed comparative studies at the domestic level.
Similarly, Stephen Burbank and Barry Friedman call for a more contextualised approach to understanding judicial independence following their survey of court studies in the United States.37 As a starting point, Burbank and Friedman observe the tendency among those involved in the discussion of judicial independence to treat the principle as a monolith, in that judicial independence is a "concept having the same meaning everywhere and at all times."38 The authors criticise this approach by writing that judicial independence varies significantly, even among courts in the United States. In terms of defining judicial independence, Burbank and Friedman argue that one needs to make clear what is expected from the court in terms of its role, the degree of decisional independence and accountability that are necessary to achieve that end and the formal and informal arrangements that are capable of achieving that goal.39 The authors also point out that the level of court and its function as a trial court or appellate court are important considerations in this analysis.40 While it may be difficult to arrive at a general theory of judicial independence, the principle of an independent judiciary can be better understood through comparative studies of different courts and legal systems. Burbank and Friedman note that comparative studies tend to demonstrate that judicial independence cannot be measured exclusively by formal rules and there may be more than one way to bring about the same measure of judicial independence.41
In the introduction to his edited collection of judicial independence studies,42 Peter Russell calls for a general theory of judicial independence. According to Russell, there is little clarity of the meaning of an independent judiciary despite it being viewed as an essential feature of liberal democracy.43 Russell sets out several requirements that one might expect of a theory of judicial independence, which includes the meaning of judicial independence, its purpose and its key elements. In terms of its elements, Russell notes that a general theory cannot be expected to provide "definitive answers to the substantive normative and empirical questions that might be raised about judicial independence in various contexts."44 Judicial independence raises normative issues that may never draw a consensus view for at least two reasons. First, the position one takes on judicial independence tends to reflect one's preferred balance between judicial autonomy and democratic accountability.45 Second, there is a lack of empirical evidence of how particular institutional arrangements affect judicial independence.46 Nevertheless, Russell sees merit in the development of a contextualised theory of judicial independence that would serve as an organising framework and reference point for further research.47
Antoine Garapon also calls for a new approach to understanding judicial independence on the basis that international judicial independence standards do not work as expected.48 Garapon writes that model institutions are often too abstract to be implemented effectively. International standards related to the judiciary impose blue-prints of an idealised version of a judicial institution upon local culture and national circumstances.49 He argues that one cannot understand a legal system without taking its culture into consideration as every system is founded upon a set of beliefs.50 Instead, judicial independence must take a more collective approach that is focused on politics on the ground. Garapon engages in a comparative analysis of various legal systems to point out that judicial independence grows in relation to the importance of individualism in a society.51 Reforms to enhance judicial independence deal with complex issues that must be considered within their local context.52 Garapon recommends that reformers ask what is wrong with the courts in a particular system, which will lead them to local issues. The prevailing approach of reformers is to ask what is right, which leads to a problematic universal and general approach.53 Garapon concludes that there is not one model of an independent judicial institution. Instead, judicial independence must be understood at the local level. Culture is a starting point in this understanding, but does not necessarily offer a defence to a problematic judicial system. Instead, it invites a normative but context-sensitive approach to judicial independence.54
The contextualist scholars make a compelling argument that the meaning of judicial independence is shaped by a number of factors that operate at the domestic level, particularly given that their observations arise from detailed comparative studies of different legal systems. While there may be common elements and problems of judicial independence among different legal systems, a study of each country is necessary to locate the precise meaning and use of judicial independence. Because of the importance of context in shaping the meaning and use of judicial independence, this study looks to the historical context of adjudication to shed light on the principle of judicial independence more generally, particularly with respect to elements or traditions that have stood the test of time.
The early history of judging reveals the development of a tradition of impartiality in ancient Egypt. Although scholars tend to overlook a detailed examination of the origins of adjudication, the context of nascent ideas stands to shed light on contemporary understandings.55 In addition, comparing early traditions to contemporary practice provides a starting point in discovering the rationale of legal principles by revealing the significance of elements that have stood the test of time. This section first considers a theory of tradition and then examines a number of primary sources from ancient Egypt in relation to adjudication, including text written by judges and kings, institutional arrangements and Egyptian literature. In all of these sources, it is clear that ancient Egyptian judges were highly concerned about their reputation for adjudicative fairness. Those who accepted bribes or were seen to unfairly favour certain interests were liable to harsh punishment for betraying public confidence in the courts and to set an example for other judges. Ancient Egyptians developed and maintained a strong tradition of adjudicative impartiality, which persisted over thousands of years and can be seen in the present, most readily in the scales of justice hieroglyph. The birth and development of adjudicative impartiality in ancient Egypt suggests impartiality as the main focus of judicial independence and as necessary to the legitimacy and effectiveness of judicial decision-making.
Before considering the ancient origins of judicial impartiality, it is important to develop a better understanding of the idea of tradition. In the first chapter of Legal Traditions of the World,56 Patrick Glenn sketches out the contours of a general theory of tradition. Glenn's starting point is to consider a commonly held view of what tradition means. According to Glenn, the western world sees tradition as an outmoded way of doing things. Tradition is a way in which the past controls and influences the present, which is avoided by rational thinking.57 Instead of being independent thinkers, adherents to tradition simply allow the past to control their decisions. Glenn argues that this perspective of tradition is problematic as it fails to take into account that thinking rationally about tradition is itself a tradition with a long history.58 Glenn argues that the evaluation of one tradition through the logic of another is bound to produce biased results.59 In a world of competing traditions, Glenn observes that there is "no initial justification for granting primacy of one [tradition] over others".60 Instead, one needs to suspend conviction in one tradition to learn from other traditions in a "middle ground".61 According to Glenn, thinking theoretically about tradition is a valuable exercise to expand knowledge and understanding of others.62
Tradition is defined by Glenn as the presence of past information that arrived through the process of traditio.63 Glenn describes this process in a number of steps. First, the mere presence of information about the past is a prerequisite to the further use and transmission of tradition. If information is not accessible, a tradition cannot be known. The presence of the past simply refers to the capture of information in a way that makes it practically accessible to others. Information can be brought forward through a variety of means including physical objects, speech and writing. With respect to physical means of presenting information, Glenn observes that information can be gleaned both expressly and implicitly. The very existence of an object discloses certain understandings of the physical world necessary to its creation.64 For example, a clay pot reveals a number of things about the past. It demonstrates the creator's knowledge of how to mould soft earth into a useful shape and the process of hardening the clay. Like other physical objects, written texts are vulnerable to destruction and decay.65 Written texts also invite the interpretation of the reader. Different individuals at different times are likely to draw different meanings.66 A text cannot answer an individual reader's challenge or criticism. Instead, the text must be able to, on its terms, convince whomever it happens to meet.67
Second, traditio involves a process of continuous transmission to bring information from the past to the present. Here it is helpful to look at the meaning of the term traditio, which refers to "delivery, surrender, handing down, a saying handed down, instruction or doctrine delivered".68 According to Glenn, the continuous transmission of past information within a particular social context is necessary to ensure its continued relevance.69 In other words, the process of traditio is necessary to provide cultural familiarity with past information. Where the process of traditio fails, traditions appear strange and adherents are seen as different.70
Glenn's theory of tradition provides a useful starting point in thinking about ancient legal traditions. Our historical knowledge of the ancient world derives from physical objects and written texts that survived the destructive tendencies of time. Notably, the quantity of ancient information in the present has increased significantly because of recent advances in the understanding of ancient languages and new archaeological finds. This information demonstrates the existence of well-defined legal traditions in the ancient world, particularly in ancient Egypt.71 As could be expected with ancient information lost for thousands of years, many of these traditions appear strange, indicating a breakdown in the process of traditio. Some ancient legal traditions, however, seem surprisingly familiar to contemporary legal practices, perhaps indicating the continuity of transmission of information and a connection between the ancient world and the present. What is particularly relevant for the idea of judicial independence is that a number of primary sources disclose the development of a tradition of adjudicative impartiality in ancient Egypt. The tremendous importance attached to a reputation for judicial fairness by ancient Egyptians gave rise to an established tradition of impartiality. The early origins of this tradition of impartiality, and its maintenance over thousands of years, suggests that impartiality lies at the heart of the judicial process.
The ancient Egyptians established an influential civilisation, which included traditions that can be seen in the present.72 While numerous physical objects and texts from ancient Egypt remain well-preserved, the meaning of their inscriptions remained a mystery for more than a thousand years.73 It was only upon the discovery of the Rosetta Stone stele on Egypt's Mediterranean coast in 1799, which contained an inscription in two forms of hieroglyphs and classical Greek, that Egyptian hieroglyphs could finally be deciphered. This significant achievement brought a large quantity of information from the ancient Egyptian world, in some cases dating back more than 5,000 years, to the present.74 Ancient Egyptian texts reveal a sophisticated legal system.75 Although no complete legal code remains, texts from as early as the Middle Kingdom refer to the existence of one.76 In the ancient Egyptian state, government officials acted as decision-makers in both civil and criminal cases. There was no professional judiciary. Instead, governors adjudicated disputes in a federation of regional courts. Six courts comprised the kingdom's judicial system, each having its own chief judge. Litigants brought their disputes to court through formal written applications or pleadings. It appears that the ancient Egyptians were litigious as court records disclose numerous private and public law cases.77 Extant court records read like case reports, each briefly describing the facts of the case and the judge's decision. An official known as the vizier served as the chief justice of the regional courts and administered the court system. Ancient Egyptians considered the vizier to speak on behalf of Ma'at, the goddess of truth and justice.78 Notably, Ma'at played a special role in judging the dead when a feather of Ma'at would be weighed on a scale against the deceased's heart. Only if the heart was lighter or equal to the weight of the feather would the deceased be permitted to carry on to heavenly paradise. In his role as head of the judicial system, the vizier personally heard the most serious cases, such as murder.
One of the earliest Egyptian references to the adjudicative process appears more than 4,000 years ago in the tombs of two state officials. The officials acted as judges during the reign of Sixth Dynasty Pharaoh Pepi II. The inscriptions read in part, "Never did I judge two brothers in such a way that a son was deprived of his paternal possession."79 These inscriptions are an early indication of a judicial preoccupation with a reputation for adjudicative fairness. By proclaiming that these judges always took broader interests into account in arriving at their decisions, the inscriptions seek to show the Egyptian judge as carrying out a fair and considered process to arrive at a just outcome.
During the subsequent First Intermediate Period, a Heracleopolitan king wrote a number of proverbs to his young son, known as the 'Instruction Addressed to Merikere'. In his advice on the appointment of state officials, the King counselled his son to prefer wealthy judges. The rationale was that judges who lacked material resources would be liable to corruption by wealthy litigants:
Make great thy nobles, that they may execute thy laws. He who is wealthy in his house does not show partiality, for he is a possessor of property and is without need. But the poor man (in office) does not speak according to his righteousness, for he who says 'Would I had', is not impartial; he shows partiality to the one who holds his reward.80
The King's advice reveals the importance of adjudicative impartiality in the ancient Egyptian state, a concern that is reflected at the highest level. It is clear from the instruction that a judiciary seen as corrupt or partial would serve to undermine public confidence in the courts, the effectiveness of the legal system and ultimately the king's own authority. In order to maintain an impartial decision-making process, the King prescribed selection criteria to provide for judicial independence. According to the King, wealthy individuals made the best judges as they would be insulated from the temptations of rewards that could be offered by wealthy litigants.
An inscription from the conclusion of the First Intermediate Period and the reunification of the Egyptian kingdom further supports the idea that wealthy judges would be protected against charges of bias in favour of wealthy litigants. Mentuwoser, a prominent state official serving under Twelfth Dynasty Pharaoh Sesostris I, proclaimed his impartiality on a well-preserved stone tablet found in a temple dedicated to the god Osiris. In the inscription, he boasts, "I was one who heard cases according to the facts without showing partiality to him who held the reward, for I was wealthy and goodly in luxury."81 Whether or not impartiality became a justification for an extravagant lifestyle, this prominently displayed tablet shows the importance of maintaining a reputation for judicial impartiality and the high value placed on perceptions of fairness.82
During the latter half of his Eighteenth Dynasty reign, Thutmose III appointed Rekhmire as vizier. During a lavish appointment ceremony, the Pharaoh instructed Rekhmire on how to carry out the duties of his office, known as the 'Installation of the Vizier'. These detailed instructions established principles to guide the exercise of the vizier's discretion in his state responsibilities. An inscription recounting the instructions from Thutmose III appears in Rekhmire's tomb and includes in part:
It is an abomination of the god to show partiality. This is the teaching: thou shalt do the like, shalt regard him who is known to thee like him who is unknown to thee, and him who is near … like him who is far … Do not avoid a petitioner, nor nod thy head when he speaks.83
These instructions took the Egyptian tradition of judicial impartiality to a new level. Thutmose III places impartiality squarely at the heart of judicial decision-making. In his instructions, he seeks to impose measures of judicial independence to preserve a judicial reputation for impartiality. According to Thutmose III, impartiality is a state of mind that can be perceived by others through the actions and behaviours of the judge hearing the dispute. Thutmose III's caution against a judge nodding his head while parties argue the case reveals a keen awareness of how the behaviours of the judge in court might lead to an accusation of bias and a loss of confidence in the decision-making process. It critical for judges to act fairly, treating the parties as equals in order to maintain their trust. In particular, a party who knows the judge must not be seen to receive any kind of advantage in the decision-making process. The decree to treat those who are near like those who are far calls upon adjudicators to set aside their prejudices and affections in order to decide the dispute justly. Most importantly, by connecting judicial partiality and bias to punishment by the gods, Thutmose III rebuked unfairness and corruption in the strongest terms possible. This denunciation of judicial bias was presumably necessary to curb judicial corruption and is particularly important coming from the mouth of the Pharaoh because of his status as a living god.84
Thutmose III also provided Rekhmire with an illustration of what fairness means in the context of adjudication. The Pharaoh recounts the story of Vizier Kheti, who heard a case involving one of his relatives:
Beware of that which is said of the vizier Kheti. It is said that he discriminated against some of the people of his own kin in favor of strangers, for fear lest it should be said of him that he favored his kin dishonestly. When one of them appealed against the judgment which he thought to make him, he persisted in his discrimination. Now that is more than justice.85
This extraordinary story shows just how far an ancient Egyptian judge would go to preserve his reputation for fairness. In the case, the Vizier denied justice to his relatives in order to insulate himself from any hint of bias. According to the Pharaoh, while impartiality is indispensable, the concern for one's reputation for impartiality must be subordinated to the overarching principle of justice, which requires decisions to be made on the merits of the case.86
In addition to the Pharaoh's instructions found in Rekhmire's tomb, the Vizier had inscribed in his tomb his approach to decision-making as the kingdom's chief justice:
I judged both [the insignificant] and the influential; I rescued the weak man from the strong man; I deflected the fury of the evil man and subdued the greedy man in his hour… I was not at all deaf to the indigent. Indeed I never took a bribe from anyone…87
The inscription shows that Rekhmire wanted to be remembered for having taken Thutmose III's instructions to heart. In addition, like the two Sixth Dynasty officials who came before him, he also wanted to be seen as having drawn upon a broader vision of social justice and equality in deciding his cases. Not only does Rekhmire announce that he never accepted a bribe, he draws attention to cases in which there existed a significant power imbalance, proclaiming that powerful or rich parties could not unfairly influence his decision-making. Here, Rekhmire appears to relish his reputation for protecting the weak from oppression by the strong. And like Thutmose III, Rekhmire shows a preoccupation with the appearance of adjudicative impartiality and fairness by pointing out that he always heard both sides of each case, without regard to their status, before rendering his decision.
In addition to these inscriptions revealing an established tradition of adjudicative impartiality, institutional arrangements developed to separate ancient Egyptian judges from what were perceived to be sources of improper influence. While both the Heracleopolitan King and Mentuwoser prescribed criteria for the appointment of judges, namely individuals with sufficient wealth to resist the temptation of bribes, the judiciary developed a reputation for corruption by the time of Eighteenth Dynasty Pharaoh Horemheb.88 As part of his campaign to restore public confidence in the courts and curb abuses, Horemheb further insulated judges from problematic sources of influence. On a prominently displayed stele, Horemheb established judicial salaries to make judges less dependent on bribes and gifts as a source of income.89 In addition, Horemheb strengthened the financial independence of judges by exempting them from paying taxes.90 In light of these new financial protections, Horemheb extended little sympathy to judges who continued to accept bribes or otherwise demonstrated partiality by increasing the penalty for corruption to the severing of an offender's nose or even death.91
While judges boasted about their fairness and impartiality, the kingdom's literature provides some important cultural context for how judges were perceived. Ancient Egyptian texts that have been translated include religious books, proverbs, biographical works and scientific manuscripts. Several of these sources reflect upon the legal system and suggest popular attitudes toward courts and judges. For example, Nineteenth Dynasty proverbs known as the 'Wisdom of Amenemopet' cautions both litigants and judicial officials against abuses of justice:
Do not force a man to go into court,
Neither shalt thou bend righteousness (or justice),
While thy face is inclined towards showy clothing (of a litigant), And thou drivest away him who is shabby.
Take not gifts from the strong,
Neither shalt thou oppress for him the weak.
Justice is a great gift of god,
He giveth it to whom he will.92
The theme of adjudicative impartiality in this passage echoes instructions given to the Vizier by Thutmose III. At the outset, the proverb acknowledges human weakness and judicial vulnerability. It seems almost inevitable that the appearance of wealthy litigants will impress decision-makers. But instead of giving into their weakness, judges must remain vigilant to avoid allowing the appearance of a litigant to affect the decision-making process. Judges are warned against accepting bribes from litigants and are encouraged to treat all parties equally. As seen in the instructions of Thutmose III, justice flows from the supernatural; judges must uphold their impartiality by receiving the gift of justice from god.
Written c. 1800 BCE, the 'Tale of the Eloquent Peasant' remains one of the most remarkable works of ancient fiction. The tale tells the story of a poor litigant's first-hand experience with the ancient Egyptian legal system. The story begins with the introduction of a peasant named Khunanup, who is traveling to the market with his donkeys laden with goods. On the way, he encounters Nemtinakht, the superintendent of a wealthy noble's lands. Nemtinakht schemes to steal the peasant's goods, diverting Khunanup's caravan over his fields. While passing over the fields, one of the peasant's donkeys eats a mouthful of grain. Nemtinakht uses the 'theft' of his grain as a pretence to beat the peasant and seize his goods. Given this injustice, Khunanup petitions a judge traveling through the region for relief. The judge listens to the peasant deliver an extraordinary speech about truth and justice. After the speech, the judge is so impressed with Khunanup's oratory skills that he invites another official to listen to the story. This scenario repeats itself and Khunanup ends up reciting nine speeches before finally receiving justice from the Pharaoh himself. The Pharaoh listens to Khunanup's final treatise on justice and orders the return of his goods and the forfeiture of Nemtinakht's property to the peasant as additional compensation.93
The nine speeches provide insight into perceptions of the role and philosophy of ancient Egyptian judges. Khunanup's anxiety increases each time he is forced to repeat his pleas. In each additional repetition, the story becomes increasingly desperate, reaching new heights of elaboration. In his first address, the peasant compares the role of the judge to a navigator of a ship on the sea of truth, who must steer around the dangers of injustice. In his second address, Khunanup appeals to the judge's sense of impartiality and fairness:
Helm of heaven! Beam of earth!
Plumbline bearing the weight!
Helm, drift not!
Beam, tilt not!
Plumbline, go not wrong!94
Through these analogies, Khunanup suggests that judges can drift from the course of justice and appeals for the judge to remain faithful to his impartial role as the adjudicator deciding the case. Becoming increasingly exasperated when delivering his third speech, the peasant warns of the subtlety of bias that can creep into the adjudicative process, cautioning the judge to avoid it:
Look, you yourself are the very scales:
if they tilt, then you can tilt.
Drift not, but steer!95
Khunanup envisions the judge as the personification of the scales of justice, an analogy that is familiar to contemporary legal traditions. Biased scales tilt to one side instead of maintaining a true and equal balance. Like the scales, the judge must avoid prejudices that result in the parties having less than a true and equal opportunity to present their case. Khunanup laments the partial or biased judge, describing him as:
… blind to what he sees, and deaf to what he hears,
his heart straying from what is recalled to him.
A partial judge will not listen to the arguments of the parties, and in making his decision, he fails to consider the merits of the case. Khunanup spares no words of condemnation for such corruption:
Look, you are a town without a mayor,
like a generation without a great man,
like a boat with no controller,
a gang without a leader.
Look, you are a stealing officer,
a bribed mayor,
a district-overseer who should beat off the plunderer
who has become an archetype for the evildoer.96
In his sixth speech, Khunanup continues his criticism of biased judges, again invoking the analogy of the scales of justice:
You were appointed to hear cases,
to judge contenders, to punish the thief.
Look, your way is to weigh for the robber.
You are trusted – and are become a misleader.
You were appointed as a dyke for the pauper –
beware lest he drown!
Look, you are his lake, you who drag under!97
In this passage, Khunanup reiterates that adjudication is the basic function of the judiciary. Judges are called upon to decide disputes and dispense justice. By virtue of their office, judges hold great power and are entrusted to decide their cases fairly. Litigants bring their cases to judges with the understanding that the judge will hear both sides before punishing those who are blameworthy under the law. A corrupt or biased judge, whom Khunanup compares to the scales of justice weighed in favour of a thief, betrays their office and threatens the entire process of adjudication.
The Tale of the Eloquent Peasant discloses the value placed on adjudicative impartiality in ancient Egypt. Khunanup's impressive oratory on justice in the courts provides a look at the ancient Egyptian legal system from the perspective of a poor litigant, one who possessed nothing more than an extraordinary way with words. The analogies of justice and impartiality invoked by Khunanup still resonate in legal discourse today. Khunanup's appeal to the judge's sense of justice shows that ancient Egyptian judges took great pride in maintaining reputations for fairness and impartiality (whether or not they were fair and impartial in fact). The mere accusation of adjudicative bias or corruption was shocking and would not be taken lightly. Indeed, after Khunanup questioned the motives of the judge in his third speech, the court attendants responded by beating him on "all his limbs".98
These ancient sources reveal the dawn of a tradition of adjudicative impartiality in ancient Egypt. In applying Glenn's theory of tradition, the familiarity of the notion of impartiality to contemporary legal traditions might indicate the possibility of a connection between the ancient world and the present. Historians and legal scholars have explored a bridge between ancient Egypt and the development of ideas in western civilisation. Pier Giuseppe Monateri, for example, has researched the possibility of an African-Semitic link to western legal thought and traditions.99 Monateri concludes that "[w]estern law is derived not only from Roman Law, but from other ancient laws as well", pointing to examples in contract law, the state, the adjudication of disputes and the role of professional elites in shaping legal culture.100
As the starting point for considering the possibility of a link between ancient Egyptian notions of adjudicative impartiality and the present, it is important to appreciate the extent of idea dispersal among ancient civilisations. For example, an old Babylonian hymn to the judge-god Shamash describes a tradition of adjudicative impartiality:
The unjust judge thou makest behold shackles.
As for him who takes a bribe and bends the right,
Him dost thou burden with punishment.
He who does not take a bribe,
who espouses the cause of the weak,
Is well pleasing to Shamash: he will live long.
The careful judge, who renders a just judgment,
Prepares himself a palace,
a princely residence is his dwelling…101
The language of the hymn appears strikingly similar to the ancient Egyptian sources. A corrupt Babylonian judge who accepted bribes would bend the "right", an analogy close to Khunanup's tilted scales in the Tale of the Eloquent Peasant. Impartiality is considered pleasing to the god Shamash, linking justice and the supernatural as seen in both Thutmose III's instructions to his vizier and the proverbs of Amenemopet. It is also notable that the hymn praises judges who act to protect weaker litigants, reminiscent of the boastful inscriptions in Rekhmire's tomb.
At least two linkages between the traditions of ancient Egypt and contemporary western civilisation can be seen to exist. One possible route that ideas might have taken is via the Greeks and Romans. Monateri points to Ptolemaic Egypt, c. 332 BCE, as a period of information transfer between the legal traditions of the ancient Egyptians and the Greeks.102 This crosspollination of traditions may have occurred even earlier, with the visit of Greek lawmaker Solon in the 6th century BCE who studied in Egypt before returning home to reform the laws of Athens.103 Either way, Octavian's conquest of Greek-controlled Egypt c. 30 BCE, following the death of Cleopatra VII, undoubtedly brought surviving Egyptian legal traditions into the Roman world. Notably, Egyptian laws and institutions continued to operate following the Roman conquest, even enduring after the Antoninian Constitution of 212.104 Whether directly from the Egyptians under Greek control, or borrowed from Greek civilisation, itself influenced by Egyptian practice, it is inescapable that the Romans were aware of Egyptian legal traditions. In turn, Rome's exalted laws continue to exert significant influence on western legal traditions.105
A second route by which ancient legal traditions could have found their way to the western world is through the ancient Hebrews, particularly because of the influence of the Old Testament.106 The Egyptians and Babylonians indirectly influenced Hebrew literature and religious texts through the Canaanite civilisation. Egyptian and Babylonian traditions saturated the Canaanites, who were under Egyptian rule and had developed an extensive trade relationship with the Babylonians.107 It seems likely therefore that the Hebrews were indirectly exposed to Egyptian traditions through their interaction with the Canaanites.108 The Torah also records Egyptian influence on the Hebrews through the prophet Moses. According to the narrative in the book of Exodus, the Pharaoh's family adopted Moses as an infant.109 Raised by Egyptian nobility, Moses spoke Egyptian, learned Egyptian traditions and was intimately familiar with Egyptian culture. The first biblical reference to a tradition of adjudicative impartiality appears shortly after the story of Moses leading the Hebrews out of Egypt. Exodus 18:21 describes Moses' father-in-law, a Midianite priest, advising Moses on the appointment of judges:
[T]hou shalt provide out of all the people able men, such as fear God, men of truth, hating covetousness; and place such over them, to be rulers of thousands, and rulers of hundreds, rulers of fifties, and rulers of tens.110
Deuteronomy 1:16-17 repeats the story of Moses appointing judges:
And I charged your judges at that time, saying, Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him. Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God's: and the cause that is too hard for you, bring it unto me, and I will hear it.111
Similar to the Egyptian tradition, the supernatural plays an important role in the Hebrew conception of justice. Most noteworthy are the similarities between the Hebrew God and the Egyptian goddess Ma'at.112 Both are seen as fountains of justice. The function of the judge is to listen to both sides of a dispute and decide the case in accordance with divine wisdom and justice. The biblical text also reflects the Egyptian tradition of adjudicative impartiality.113 Reminiscent of Rekhmire's boast of saving weaker parties from those who would oppress them, Moses instructs judges to treat both parties as equals, not allowing rich or powerful litigants to improperly influence the outcome of the case.
From these historical linkages, it appears likely that an ancient Egyptian tradition of impartiality has been transmitted to contemporary western legal traditions. Although gaps in the historical record prevent a complete and detailed record of this connection, a prominent symbol of judicial impartiality confirms the transmission of adjudicative impartiality from ancient Egypt to the present. As described earlier, the scales of justice as a hieroglyph originated in the Old Kingdom. Today, this symbol can be seen to adorn modern courthouses as a representation of judicial impartiality and fairness.114 Contemporary familiarity with this symbol, and the idea it represents, suggests our familiarity with an adjudicative tradition that first developed thousands of years ago in ancient Egypt. The scales represent a bridge to the past that has stood the test of time. Judges, in deciding disputes, must act fairly and impartially as a true and equal balance by hearing both sides, something argued by an eloquent peasant nearly 4,000 years ago.115
To obtain a more complete understanding of judicial independence, it is also important to consider its theoretical dimensions. Hobbesian social contract theory explains the importance of impartiality to the process of adjudication. In the state of nature, persons enter into a social contract to establish a peaceful society. This agreement requires individuals to give up certain liberties in the interest of social harmony, which includes the right to judge one's own controversies. Since individuals can no longer decide their own disputes, a third party must be called upon to resolve conflict. In order to enjoy legitimacy and effective decision-making, adjudicators must maintain their status as true third parties to the dispute. Decision-makers showing an interest in the outcome of the case lack standing to decide the case since as they no longer act as true third parties.
It is notable that in his writings, Thomas Hobbes expresses familiarity with ancient Egyptian practice and refers to it in his work, principally in his book of religious verse, Historia Ecclesiastica.116 In that work, Hobbes highlights historical connections between the Egyptians and the Greeks, writing that the lips of men of the Egyptian priestly clan "dripped with profound maxims, which the thirsty Greek and Assyrian drank in."117 On the practice of Egyptian judicial decision-making, an account that Hobbes bases largely on the Greek historian Diodorus Siculus, Hobbes writes that "[o]ne practice of theirs which should certainly be extolled to the stars was the manner in which they conducted judicial enquires."118
In his political science masterpiece, Leviathan,119 Hobbes propounds the first modern conception of the social contract. Published in 1651, during the political turmoil following the execution of King Charles I, the text reveals Hobbes as a royalist, concerned with the outbreak of civil war in England.120 Through his infamous analogy of the state as an artificial person, Hobbes approaches sedition as a political sickness that leads to civil war and ultimately the death of the state.121 The cause of sedition is political unrest, but like a physical sickness, it can be treated and cured.122 It is within this context that the Leviathan is written, offering a prescription for healing England's political malaise by persuading citizens of the legitimacy and necessity of the state.
At the outset, Hobbes paints a poor picture of mankind in the hypothetical state of nature.123 By nature, men have complete liberty, defined by Hobbes as the absence of external impediments that take away power from a man to do what he wants.124 While this may appear favourable on first impression, men with unrestricted liberty in the state of nature are free to employ any means necessary to promote and protect their self-interest. Furthermore, it is a fundamental right of nature that each man can do anything in the name of self-defence.125 According to Hobbes, there is no state, law or even morality in nature, and thus no social organisation, justice or injustice, right or wrong behaviour.126 Each man possesses a right to everything that exists, even another's body.127 Since men evaluate actions from their self-interested point of view, there is no forum for resolving disputes that may arise. Each man acts as his own judge in all matters.128 Violent conflict is liable to erupt when the self-interests of two or more men collide, for example if they desire something that cannot be enjoyed by them all. Given the limited availability of natural resources, men must either destroy or subdue others to survive.129
It is possible for men to escape the brutal state of nature if they enter into a social contract to curtail their natural liberty. Men negotiate this contract on equal terms, given that each man fears death and seeks the benefit of the contract's protection from the violence of war.130 A man must be willing to give up his right to do what he wants in the pursuit of peace when others are prepared to do the same thing.131 The extent to which men must divest their liberty depends upon how much liberty each man would allow another to enjoy against himself. Hobbes characterises the terms of the social contract as the laws of nature that, once recognised, can deliver men from the state of nature to a peaceful society.132 Hobbes sums up the laws with a negation of the golden rule: do not do things to others which you do not want to have done to you.133 This rule provides a simplified way for men to weigh the actions of others against their own. According to Hobbes, inequalities do not exist in the state of nature, but arise from the introduction of civil laws.134 Therefore, men must acknowledge equality amongst themselves.135 Even if a man believes himself to be superior to others, he must accept natural equality because all men enter into the social contract on equal terms.136 Furthermore, it is a premise that a man cannot reserve a right for himself under the social contract which he would not allow others to retain.137 When men keep rights that they do not want others to enjoy, they act against the law of natural equality.138
The laws of nature described by Hobbes demonstrate the reasons for why adjudicative impartiality is important to a peaceful society. Because of man's self-interest, the peaceful resolution of conflict requires men to give up the natural right to decide their own disputes under the social contract:
And seeing every man is presumed to do all things in order to his own benefit, no man is a fit Arbitrator in his own cause: and if he were never so fit; yet Equity allowing to each party equall benefit, if one be admitted to be Judge, the other is to be admitted also; & so the controversie, that is, the cause of War, remains, against the Law of Nature.139
Even though the laws of nature provide the means for men to avoid the state of nature, Hobbes acknowledges that conflict will arise after the formation of the social contract. In order to preserve peace, the parties to a controversy must submit their dispute to a judge for a decision:
And because, though men be never so willing to observe these Lawes, there may neverthelesse arise questions concerning a mans action; First, whether it were done, or not done; Secondly (if done) whether against the Law, or not against the Law; the former whereof, is called a question Of Fact; the later a question Of Right; therefore unlesse the parties to the question, Covenant mutually to stand to the sentence of another, they are as farre from Peace as ever. This other, to whose Sentence they submit, is called an Arbitrator. And therefore it is of the Law of Nature, That they that are at controversie, submit their Right to the judgement of an Arbitrator.140
On account of the central role of judges in maintaining a peaceful society, Hobbes emphasises that judges must remain impartial as between the parties:
Also if a man be trusted to judge between man and man, it is a precept of the Law of Nature, that he deale Equally between them. For without that, the Controversies of men cannot be determined but by Warre. He therefore that is partiall in judgment, doth what in him lies, to deterre men from the use of Judges, and Arbitrators; and consequently, (against the fundamentall Lawe of Nature) is the cause of Warre.141
He further writes that judges will lose their impartiality when they possess an interest in the outcome of the case:
For the same reason no man in any Cause ought to be received for Arbitrator, to whom greater profit, or honour, or pleasure apparently ariseth out of the victory of one party, than of the other: for hee hath taken (though an unavoydabl bribe, yet) a bribe; and no man can be obliged to trust him. And thus also the controversie, and the condition of War remaineth, contrary to the Law of Nature.142
The Hobbesian theory of the social contract demonstrates why third parties must be called upon to decide disputes in a peaceful society. In the state of nature, men can do anything to accomplish their desired ends. No action, no matter how distasteful or repugnant, is immoral or unjust; men are exclusively interested in their survival and maintaining self-defence. Men cannot trust one another in the condition of war to keep promises and are therefore unable to enter into agreements to resolve their conflicts.143 The peaceful determination of disputes is impossible in a scenario of every man for himself. Instead, violence resolves conflict. Eventually, the need for self-defence motivates men to enter into a social contract for peace. Men must agree to set aside their natural right to do what they want in the interest of peace. The extent to which natural liberty must be divested under the social contract depends upon how much liberty each individual would accept from other individuals. In other words, the liberties retained in society are those which each man, negotiating the social contract from a position of natural equality, would permit every other man to enjoy. Hobbes' equality of liberty among men provides the key to understanding the legitimacy of third party adjudication in a peaceful society.
In the state of nature, where men enjoy unrestricted liberty to do what they want, parties in a conflict hold the right to judge their own dispute,144 leading to an impasse that can only be resolved through violence. In the words of Hobbes, "the Controversies of men cannot be determined but by Warre".145 A peaceful society must, therefore, institute a non-violent mechanism to end conflict that will inevitably arise from man's pursuit of self-interest. It is clear that no litigant would allow his or her opposing party to decide the case. Quite simply, one would reject the opposing party as a judge as there could be no trust or confidence that the matter would be decided fairly by a person with a direct interest in the dispute. In the words of Hobbes, "seeing every man is presumed to do all things in order to his own benefit, no man is a fit Arbitrator in his own cause."146 The legitimacy of third party adjudication arises from this understanding on the basis that a third party can be seen by the parties as an impartial decision-maker. It is also required under the social contract. Given that a litigant would deny his opponent's right to judge their controversy, Hobbes' equality of liberty principle requires him to divest his own right to judge the conflict, which necessitates calling upon a third party to resolve the dispute.
If the parties to a dispute cannot judge their own conflict, who should act as the third party to decide? The only possibility to peacefully settle disagreements is the judgment of an individual unconnected to parties or the issue in dispute.147 According to Hobbes, the law of nature commands men to submit their controversies to an arbiter for a decision: "[t]his other, to whose Sentence they submit, is called an Arbitrator … they that are at controversie, [must] submit their Right to the judgement of an Arbitrator."148 The use of the word "other" signifies the third party status of the decision-maker.149 Because impartial arbiters are essential to a peaceful society, men must be able to call upon them to adjudicate their conflicts. If an impartial arbiter cannot be found, men will withhold their disputes from adjudication.150 The implications of this failure may be severe, as the dispute is likely to end in social violence.151
Once a claim is submitted to a third party for a decision, the fairness and impartiality of the decision-making process is critical to ensuring that the losing party has a reason to accept the outcome. In the event the decision of a judge is rejected, the dispute's impasse returns, carrying with it the potential for litigants to take the controversy into their own hands. As discussed, only true third parties can legitimately decide disputes brought before them under the social contract. For the same reason that no man would permit his opposing party to decide the case, he would not accept the judgment of a decision-maker who demonstrated partial affections or treated him unfairly. Hobbes writes that an arbiter who stands to gain "greater profit, or honour, or pleasure" from "the victory of one party, than of the other" has become partial to the outcome of the dispute and loses his status as a true third party. In this case, "no man can be obliged to trust him".152 For example, a judge accepting a bribe from one of the litigants appearing before him loses his impartiality vis-à-vis the parties, resulting in a loss of legitimacy. The acceptance of a bribe revokes the judge's status as a third party to the dispute: he has effectively become a party to the litigation by holding an interest in the outcome of the case. As a party to the dispute, the bribed judge has no right to decide the controversy.153 An unsuccessful litigant is therefore justified in rejecting the decision of a partial arbiter because such a judge has become a proxy for his opponent.
Hobbes' emphasis on impartiality and adjudicative legitimacy is furthered by his warning to those entrusted with deciding disputes. According to Hobbes, the laws of nature require adjudicators to deal with the litigants equally as this is the only means of resolving disputes peacefully.154 Judges who show partial affections dissuade men from submitting their disputes to adjudication. Hobbes condemns partial judges in harsh terms, writing that they are guilty of breaching the fundamental law of nature that can lead to war.155 In addition, the negation of the golden rule shows why all judges must act impartiality. As a summation of the laws of nature, a negated golden rule advises individuals not to do something they would not want done to them. No man acting as an adjudicator would want his own disputes to be decided by a partial judge. He therefore has an obligation to those entrusting him with deciding their case to treat them and the subject matter of their dispute fairly and impartially.
In discovering the development of an important tradition of adjudicative impartiality in ancient Egypt and better understanding the rationale of impartiality under Hobbesian social contract theory, judicial impartiality can be described as including both innate and path-dependent dimensions. On the one hand, innate is ordinarily defined as referring to a feature that exists from birth or that belongs to the original or essential constitution of a thing.156 Judicial impartiality is innate in the sense that it will be seen to exist in all well-ordered societies. As understood by reference to Hobbesian social contract theory, impartial adjudication by a third party necessarily arises where individuals give up the right to decide their own disputes under the social contract. Impartiality supplies the necessary legitimacy for the third party to resolve the dispute. On the other hand, path-dependence refers to the persistent influence and knock-on effects of past events and context in the contemporary way of using and thinking about an idea. The manifestation of judicial impartiality in ancient Egypt, and its development over time into an important legal tradition, played a role in shaping contemporary understandings of the judicial role. In particular, the extensive measures taken to maintain a reputation for impartiality and fairness in ancient Egypt appear to be the first recorded measures of judicial independence enacted. These measures tended to focus on ensuring that a judge had no economic reason to be tempted by bribes offered by wealthy litigants or favours from those in power, measures which can still be seen in contemporary guarantees of fixed judicial compensation. In addition, the development of a powerful symbol of the judge associated with the scales of justice left its mark on the world's legal systems, which continues to influence our conception of the judge and what is necessary for a fair process of adjudication.
This section examines the relationship between judicial impartiality, which developed as an important adjudicative tradition in ancient Egypt and is essential to the functioning of any peaceful society under the Hobbesian social contract, and the legal principle of judicial independence. First, this section engages with the concept of impartiality. As a state of mind, impartiality requires judges to treat the issues and the parties fairly and to decide the case through a process of rational consideration of the law and the facts. The idea of impartiality, however, introduces practical difficulties as it remains impossible to look inside the human mind to reveal actual biases and prejudices. Furthermore, it is likely and perhaps even desirable that human decision-makers hold certain views and predispositions based on their experiences. These practical difficulties can be overcome by adopting a distinction between impartiality in fact and a perception of impartiality, which is the best that human institutions can achieve. Judges who are perceived by potential litigants as impartial third parties to the dispute will have the necessary legitimacy to decide legal disputes. Second, this section looks at external influences on the judicial decision-making process. While the international community advances what can be described as an 'unqualified view' of judicial freedom and autonomy, which is supported by the work of the universalist scholars discussed earlier, this definition leaves important questions unanswered. Importantly, the unqualified view provides little guidance in terms of how to weigh the legal principle of judicial independence against other competing principles. Third, this section connects impartiality to judicial independence by suggesting that independence operates as a means to the end of a perception of impartiality. As understood under the Hobbesian social contract, judges must maintain their status as third parties to the dispute in order to maintain legitimacy in a system of triadic dispute resolution. Measures of judicial independence, such as those first seen in ancient Egypt, create the necessary space between the judiciary and actual and potential sources of improper influence to ensure confidence in impartial adjudication.
The Oxford English Dictionary defines 'impartiality' as "[t]he quality or character of being impartial; freedom from prejudice or bias; fairness".157 'Impartial' means "[n]ot partial; not favouring one party or side more than another; unprejudiced, unbiased, fair, just, equitable".158 The first series of definitions of 'partial' focus on its general meaning in referring to only a part as opposed to the whole while a second series of definitions focuses on unduly favouring one party or side over another in an argument or dispute.159 It would appear that these definitions refer to an actual state of mind or practice that is free of prejudice or bias. However, because of the practical difficulty of looking into the human mind, it is impossible to make a direct assessment of whether or not a judge is impartial in fact. Instead, indirect assessments of judicial impartiality, such as those based on the behaviour of a particular judge or implications drawn from the relationships between judges and others are the best assessments of judicial impartiality that can be made.
Even if a direct inquiry into judicial minds was possible, it would be unsurprising to find that judges hold certain affections. Stated simply, judges are not blank slates. Judges are called upon to decide disputes partly on the basis of their experienced-based knowledge. In a series of extrajudicial speeches, former Supreme Court of the United States Justice Benjamin Cardozo observed that judges hold loyalties like other humans. Because judges are human, these loyalties could never "be utterly extinguished while human nature is what it is."160 According to Cardozo, the judge must limit the influence of these affections in the decision-making process to maintain a sufficient degree of impartiality by adopting a certain attitude toward adjudication, something Cardozo termed the 'judicial temperament'. In Cardozo's view, this approach would "help in some degree to emancipate [judges] from the suggestive power of individual dislikes and prepossessions."161 The judicial temperament seeks to challenge a judge's internal views and "broaden the group to which his subconscious loyalties are due."162 In the 1952 Supreme Court of the United States case of Rochin v California,163 Justice Felix Frankfurter echoed Cardozo's view of the judicial temperament:
To practice the requisite detachment and to achieve sufficient objectivity no doubt demands of judges the habit of self-discipline and self-criticism, incertitude that one's own views are incontestable and alert tolerance toward views not shared.164
Both Cardozo and Frankfurter conceded that all judges held internal preconceptions that were drawn from their identities and life experiences. In reconciling this observation with the idea of judicial impartiality, both characterised impartiality as less of an all or nothing question but rather one of degree. Judges must demonstrate "sufficient objectivity" in making their decisions, which could be achieved by practicing the "requisite detachment" from one's personal views.165 Others have also observed that impartiality does not require judges to be in a position where they cannot draw upon their identity and life experiences. In writing on the impartiality of judges and jurors, Martha Minow has observed that "[n]one of us can know anything except by building upon, challenging, responding to what we already have known, what we see from where we stand."166 According to Minow, the judge must instead adopt an open mind, reminiscent of Cardozo's judicial temperament, to "try to see something new and fresh".167 Likewise, Aharon Barak has written that the judge "must be capable of looking at himself from the outside and of analyzing, criticizing, and controlling himself".168
It therefore appears that judicial impartiality is a question of degree that does not sweep away identity and knowledge gained through individual life experiences. The issue is whether the judge is capable and willing to set aside preconceived notions and views to the extent that is necessary to be seen by members of the community as having the standing to decide the case fairly. Discussions of judicial impartiality must therefore be framed in reference to the perception of impartiality, which is the best that human institutions can achieve. Although potential litigants are likely willing to accept some limits on impartiality arising from the identity and life experience of the judge, indirect or circumstantial evidence tending to implicate the third party status of the judge in the eyes of litigants is liable to cast doubt on the judge's adjudicative fairness and diminish perceptions of impartiality.
The ancient Egyptian tradition of focusing on the judicial reputation for fairness can be seen as related to bolstering a perception of judicial impartiality. Great efforts were made to show that Egyptian judges heard both sides and decided the case fairly, without reference to the power, wealth or status of a litigant. Notably, the Pharaoh directed his vizier to demonstrate that he was impartial:
It is an abomination of the god to show partiality. This is the teaching: thou shalt do the like, shalt regard him who is known to thee like him who is unknown to thee, and him who is near … like him who is far … Do not avoid a petitioner, nor nod thy head when he speaks.169
If the judge nodded while one party spoke, the opposing litigant would perceive the judge as partial to that side. The importance of the perception of impartiality was also recognised by Hobbes, who wrote in the Leviathan:
For the same reason no man in any Cause ought to be received for Arbitrator, to whom greater profit, or honour, or pleasure apparently ariseth out of the victory of one party, than of the other…170
Hobbes' use of the word "apparently" demonstrates a concern with the appearance of adjudicative impartiality vis-à-vis the litigants and the broader community. Under the social contract, a decision-maker can only have legitimacy when he is seen by the litigants as a genuine third party. In the situation where litigants learn of an interest by the judge in the outcome of the case, the perception of adjudicative impartiality would be lost and the decision-maker would have no right to decide the dispute. According to Hobbes, a disappointed party in such a case has no obligation to accept the judgment.
The earlier sections identify impartiality as an essential feature of third party adjudication, which relies upon the perception of the judge as a genuine third party to the dispute. Impartiality also explains the need for judicial independence. In the public law realm, for instance, the state appears as a party and decision-makers are called upon to resolve conflict between individuals and the state. In such cases, close connections between the judiciary and the government might give rise to a view that the judge unduly favours the interest of the state. Given the importance of a judge maintaining his or her status as a third party to the dispute, litigants must perceive the judge as having the freedom to decide the case through a rational process on the basis of established legal standards and the facts, even if that decision goes against the state. While the public interest represented by the state is undoubtedly an important judicial consideration in public law cases, the perception of judicial impartiality would be eroded by the view of an individual judge or the judiciary as servile to the state.171 For example, an accused facing a criminal prosecution could hardly be faulted for having little confidence in the judge whose prospects for promotion are based in part on how many convictions were entered. From the perspective of the accused, some assurance is necessary that the judge will not be promoted by doing what is unfair or demoted by doing what is fair.172
Judicial independence works to supply this assurance by creating a certain amount of space between judges, both individually and collectively, and others who are seen as capable of improperly influencing the judicial decision-making process. This space allows judges to maintain their standing as impartial third parties to the dispute, even in cases where the state appears as a litigant. While judges are subject to a broad range of influences in both their personal and professional lives, not all influences will be seen to diminish judicial impartiality.173 Those that tend to pose the greatest concern will be those that operate outside of the ordinary litigation process. In each case, the influences that threaten to impair judicial impartiality is a question to be decided by members of the community.174 Judicial independence is contextually-dependent in the sense that it imposes measures that will sufficiently insulate judges and courts from these sources of influence to maintain the perception of impartiality. By creating this space, judicial independence promotes the community's confidence in third party adjudication.175
Several questions arise from this coupling of judicial independence to the perception of judicial impartiality. First, how much separation must be imposed between the judiciary and actual and potential sources of improper influence? This question must be assessed by reference to members of the community, who act as a yardstick by which one can measure what degree of separation is necessary.176 The minimum degree of separation in relation to each source of influence will be satisfied when a potential litigant, being a reasonable observer from the community and knowing of the relevant institutional arrangements, has confidence that the judge is likely to resolve the case impartially. The use of the reasonable person in determining the requisite degree of separation between the judiciary and sources of influence explains why judicial independence is contextually-dependent.177 For example, in the case where all members of the community have strong confidence in judicial impartiality because of a longstanding tradition of fair and impartial decision-making, the degree of separation imposed by judicial independence can be much less than a court that has been corrupted by improper influences in the past. Litigants from such communities are likely to suspect interference in the judicial decision-making process unless a high degree of separation is imposed between judges and others. It is important to note that even the highest degree of separation between the judiciary and sources of influence is no guarantee of achieving and maintaining the perception of judicial impartiality and may not be desirable to the extent it deprives judges of a connection to broader interests that should play a role in judicial decision-making. In other words, while measures of judicial independence might be necessary for a perception of impartiality, they might not be sufficient for that purpose. Information suggesting bias in a particular case or judiciaries with a longstanding reputation for corruption are likely to pose a particular challenge to achieving a perception of judicial impartiality in the community.
Second, what are the sources of influences that could implicate the perceived fairness of the judicial decision-making process? Identifying sources by reference to members of the community is necessary to target aspects of the relationships between the judiciary and others that bear upon the public perception of impartiality, which is essential to the legitimacy of third party dispute resolution. A brief survey of courts from around the world demonstrates variation in what is seen as problematic.178 This diversity appears to result from different economic, political and social factors at the ground level.179 For example, it is common for German judges to be members of political parties, sit on city councils and even campaign for political office.180 German judges engaging in such activities are not seen to be improperly influenced by politics or the interests of the state in deciding their cases. The rationale is that the disclosure of political affiliation can better ensure political diversity on the bench, which is of importance in light of Germany's history. By contrast, any such political involvement by judges in Canada would be seen to impair the judge's impartiality in deciding public law cases and would amount to a breach of the judicial ethics code.181 While these differences reveal the futility of developing a 'checklist' approach to a universal conception of judicial independence, further comparative study would provide an important perspective in discovering commonalities and suggesting different ways of solving common challenges.
Third, how is the necessary degree of separation between the judiciary and actual and potential sources of improper influence achieved? Measures of judicial independence, which can take a variety of forms, create space at key points of interaction between judges and others as the means to maintain the perception of judicial impartiality.182 Judicial independence measures are institutional arrangements that limit opportunities for interference in the judicial decision-making process by regulating the relationships between judges, both individually and collectively, and sources of influence. These measures bolster confidence in judicial autonomy and a fair decision-making process. Both formal and informal measures can create space between the judiciary and others. For example, formal measures can be designed to reduce the financial dependence of judges on government discretion through guarantees of fixed remuneration, providing judges with financial security and thus enhanced autonomy vis-à-vis the government. By contrast, an informal convention might arise from longstanding practice, reflecting an underlying commitment among government institutions to a shared value. For example, in the United Kingdom, the sub judice convention developed to restrict the parliamentary discussion of cases before the courts to prevent perceptions of improper pressure being applied by the government to the judicial decision-making process. Given the objective of generating the space necessary to maintain the perception of impartiality in the community, the success of measures undertaken must be measured by this goal. It is unlikely that any judicial independence measures will eliminate the possibility of interference in the judicial decision-making process. At best, measures of judicial independence patrol key points of interaction between judges and others to provide a reasonable assurance that the judge possesses the autonomy necessary to decide the case fairly in a rational process based on established legal standards and the facts.
As seen earlier, measures of judicial independence were first enacted in ancient Egypt to promote perceptions of judicial impartiality. For example, several new laws were enacted by the state to rehabilitate the standing of the courts, which had been weakened by corruption. Pharaoh Horemheb created space between judges and wealthy litigants who had become a source of interference in the judicial decision-making process by establishing judicial salaries.183 Horemheb further strengthened the financial independence of judges by exempting them from paying taxes.184
Potential litigants might see the government as the most significant source of improper influence in the judicial decision-making process, particularly where it holds power over judicial appointment, remuneration, promotion, discipline and even defining the jurisdiction of the courts.185 Given the interdependent nature of legal institutions and the dynamic and evolving relationships between the judiciary and the other branches of government, litigants opposing the state are likely to require assurance of judicial autonomy in the sense that the judge can make his or her decision free of improper pressure or interference by the state. Numerous points of interaction in the relationship between the court and the other branches of government present avenues for influence and interference. Measures of judicial independence can target these opportunities as the means to bolster confidence in adjudicative impartiality.186 As already noted, a legal guarantee of a non-diminutive salary would provide assurance to litigants that the judge has no reason to fear financial punishment in deciding a case against the government.
Growing judicial power in many liberal democracies has raised a tension between the principle of judicial independence and the principle of accountability. In this larger role, often involving constitutional review, courts decide cases that may be perceived as more political than legal, particularly where judges are called upon to choose among competing interests in cases that raise important matters of public policy, a role traditionally ascribed to the legislature. Peter Russell provides a concise summary of the tension between judicial independence and accountability:
[T]he growth of judicial power within long-established liberal democracies and the assignment of major responsibilities to the judiciary in new or emerging liberal democracies raise the … question of how independent a powerful judiciary can be without undermining democracy. Here the liberal principles of judicial independence runs up against the democratic principle of accountability.187
Advocates of increased judicial independence argue that the separation of the judiciary from the other branches of government is necessary to check their political power.188 From this perspective, the fracturing of power in a liberal democracy requires judges to legally invalidate democratic action that violates fundamental rights guarantees. However, judges are not likely to fulfil this important role unless they are highly autonomous from the influence of the state. By contrast, advocates of increased accountability argue that an elitist judiciary striking down laws subverts the will of the people. Judges tend to come from a homogenous background, which means they hold similar philosophies and can substitute democratically formulated choices with their own preferences.189 There does not appear to be an easy resolution to this tension. The compromise struck in liberal democracies reflects the values that each community places on judicial independence and accountability. While the debate over the balance to be struck appears to have no universally applicable answer, it should be remembered that measures of judicial independence are focused on what is required to create the space necessary to maintain the community's confidence in the judicial decision-making process.
It is helpful to survey the views of the international community on judicial independence to provide further insight into the idea of an independent judiciary. First, this section surveys the content of international instruments relating to judicial independence, which indicate that the international community adopts an 'unqualified view' of independence that calls for judicial freedom from all sources of influence. Second, this section critiques this view in light of the understanding of judicial independence as context-dependent. It concludes that while international standards provide a useful starting point in thinking about measures of judicial independence, an unqualified view of the judge free from all sources of influence fails to provide practical guidance in achieving an international standard and neglects to take into account the importance of local circumstances in shaping judicial independence.
A number of international instruments recognise the importance of judicial independence. For example, the tenth article of the Universal Declaration of Human Rights establishes that "[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations".190 Similarly, the International Covenant on Civil and Political Rights recognises the right of "all persons" to be treated equally before the courts.191 Article fourteen states that "[i]n the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."192 Other international instruments, such as the American Declaration of the Rights and Duties of Man,193 the European Convention on Human Rights,194 the American Convention on Human Rights,195 and the African Charter on Human and Peoples' Rights196 refer to the right of a litigant or person charged with an offence to access an independent or impartial court. Although these international instruments provide evidence of a broad consensus in favour of judicial independence, they fall short of setting out the details of what is practically necessary to achieve an independent judiciary.
In 1983, Quebec Chief Justice Jules Deschênes helped organise the World Conference on the Independence of Justice.197 Conference participants adopted a declaration on judicial independence entitled the Basic Principles on the Independence of the Judiciary, which were subsequently endorsed by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders and the General Assembly. According to the preamble, the Principles are designed to "assist Member States in … securing and promoting the independence of the judiciary".198 The Principles, however, set out what can be characterised as an unqualified view of judicial independence in the sense that the judge is envisioned as having maximal autonomy and freedom from any source of influence.199 The Principles' first article requires each state to guarantee judicial independence in its constitution or domestic law and admonishes all government institutions to respect the independence of the judiciary. Article two provides more clarification of what is meant by an independent judiciary:
The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.200
Under the third article, the judge should have jurisdiction over issues of a "judicial nature" and retain the "exclusive authority" to decide whether a matter falls within their jurisdiction.201 Article four provides for independence in the process of adjudication: "There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision…"202 The fifth article requires an established litigation procedure. Article six adds some further clarification on the meaning of judicial independence: "The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected."203 The seventh article calls on the government of each state to provide adequate resources to the judiciary. Articles eight and nine permit judges to freely express themselves and join associations, as long as their activities preserve judicial independence. Under article ten, persons appointed to be judges are to hold the appropriate qualifications in law. The state must also select judges without discrimination on the basis of certain enumerated grounds. The remaining ten articles identify additional requirements for an independent judiciary including terms of office, tenure, criteria for promotion, the assignment of cases, judicial immunity, judicial ethics and a code of conduct and judicial suspension or removal.
In adopting an unqualified view of the judge who enjoys complete freedom, the international community fails to answer several important questions about the legal principle of judicial independence. In particular, it is not clear from the international standards what judicial independence might mean in a practical sense and how states might go about achieving it. Judges in states that adopted all of the Basic Principles of the Independence of the Judiciary could not suddenly expect to be free from all potential sources of influence. While the Principles provide a useful checklist of best practices that might apply across a broad range of legal systems, courts are complex institutions made up of both formal and informal attributes that evolve over time, developing nuanced relationships with other actors and institutions. Therefore, at best, the requirements of an independent judiciary set out in the Principles would regulate only certain aspects of the judicial institution and its relationships with others.
Furthermore, it is not clear that a judiciary approaching absolute independence is desirable as a high degree of separation would serve to isolate the judiciary from its economic, political and social context. If the Principles are, however, meant to be interpreted as setting out general guidance to be weighed against other interests or principles, what balance is to be struck? How far must states go before their judiciaries become sufficiently independent? By leaving the definition of judicial independence in unqualified terms, the Principles provide little by way of an answer. In addition, the drafters of the Principles fail to clearly identify impartiality as the driver of judicial independence, which would focus and reasonably limit the content of judicial independence and autonomy. A more satisfying explanation of judicial independence is necessary. It is suggested that a more contextually-driven conception of judicial independence, focusing on achieving a perception of impartiality, offers a more realistic view of the judicial institution and its relationships with others.
This section examines the Canadian doctrine of judicial independence as a case study to apply the understanding of judicial independence set out earlier. Canada is selected on the basis that its judges often promote the country as an international leader in the independence of the judiciary. For example, in The Queen v Beauregard,204 former Chief Justice Brian Dickson wrote that "Canadian constitutional history and current Canadian constitutional law establish clearly the deep roots and contemporary vitality and vibrancy of the principle of judicial independence in Canada."205 More recently, Justice Ian Binnie, writing on behalf of the Supreme Court of Canada, observed that the Court's independence was "undoubted and has lead to strong public confidence in the administration of justice".206 Under Canada's Constitution, which includes both written and unwritten elements, court judgments are principally responsible for the development of a doctrine of judicial independence. While the text of the Constitution provides for the independence of judges in defined circumstances, the judiciary has interpreted these provisions as part of a much broader unwritten constitutional principle. This section presents relevant provisions of the constitutional text and then turns to several key decisions to flesh out the doctrine of judicial independence in Canadian law.
The text of the Canadian Constitution provides for the independence of the judiciary in certain circumstances. The constitutionally entrenched Charter of Rights and Freedoms207 guarantees the independence of tribunals exercising jurisdiction over persons charged with an offence. Section 11(d) of the Charter characterises this guarantee as a right that belongs to the accused:
11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
In addition, the Constitution Act, 1867208 establishes measures of independence for federally appointed superior court judges by guaranteeing their tenure and the establishment of their salaries.209 These sections of the Constitution paint only part of the picture of judicial independence in Canadian law, however, as judgments of the Supreme Court of Canada have interpreted the textual requirements as features of a much broader unwritten constitutional principle of judicial independence.
Shortly after the enactment of the Charter in 1982, a series of Supreme Court of Canada decisions began to articulate a broader constitutional vision of judicial independence as an unwritten constitutional principle. In the 1985 case of Valente v R,210 the Court first considered the meaning of an independent judiciary under the Charter. The case arose when the independence of a provincial court was questioned in the context of a criminal case. Writing for the unanimous Court, Justice Gerald Le Dain recognised some degree of uncertainty surrounding the Charter guarantee, admitting that the "concept of judicial independence has been an evolving one."211 After reviewing academic commentary and the United Nations Basic Principles on the Independence of the Judiciary, Le Dain held that an independent judiciary was necessary to ensure justice and promote confidence in the administration of justice.212 Le Dain observed that judicial independence comprised both individual and institutional aspects.213 Notably, judicial independence and impartiality were seen as closely related but distinct concepts.214 According to Le Dain, impartiality referred to a state of mind that was free of actual or perceived bias, whereas independence included both individual and institutional relationships that were founded upon objective guarantees.215 These guarantees provide assurance that the tribunal can "act in an independent manner and will in fact act in such a manner."216 Le Dain concluded that a court is independent under the Charter when it is perceived as possessing three essential conditions: security of tenure, financial security and institutional independence related to administrative matters that touch upon judicial functions.217
Following Valente, the Supreme Court of Canada built upon the meaning of judicial independence in the case of The Queen v Beauregard, in which a federally appointed judge challenged legislation that required judges to make contributions to their pension plan. On behalf of a majority of the Court, Chief Justice Brian Dickson held that judicial independence required the "complete liberty" of judges in deciding cases.218 Judicial independence must take into account the new role of the judge in a constitutional democracy, which demands more than the "adjudication of individual cases". Canadian judges were now called upon to protect the Constitution and its underlying values by reviewing the exercise of governmental power.219 In emphasising the importance of judicial independence to this new role, Dickson described it as the "lifeblood of constitutionalism in democratic societies."220 The constitutional review function of the judiciary required that judges "be completely separate in authority and function from all other participants in the justice system."221
In the 1989 case of MacKeigan v Hickman,222 Justice Beverley McLachlin (as she then was) delivered the opinion of a plurality of the Supreme Court of Canada on the issue of whether a judge could be compelled to testify at how a decision was reached. In her reasons, McLachlin appeared to backtrack somewhat from Dickson's unqualified view of judicial independence in Beauregard, noting that the inquiry was a contextual one as the judiciary must maintain relationships with other state actors:
It is important to note that what is proposed in Beauregard v Canada is not the absolute separation of the judiciary, in the sense of total absence of relations from the other branches of government … It is impossible to conceive of a judiciary devoid of any relationship to the legislative and executive branches of government. Statutes govern the appointment and retirement of judges; laws dictate the terms upon which they sit and are remunerated. … It is inevitable and necessary that relations of this sort exist between the judicial and legislative branches of government. The critical requirement for the maintenance of judicial independence is that the relations between the judiciary and other branches of government not impinge on the essential "authority and function" … of the court.223
Two years later, in the 1991 case of R v Lippé,224 the Supreme Court of Canada considered whether a municipal court system employing part-time judges met the Charter requirements of an independent tribunal. Writing for a unanimous Court on this point, Chief Justice Antonio Lamer sought to clarify the relationship between judicial independence and impartiality. Lamer observed that judicial independence serves the perception of impartiality:
The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a "means" to this "end". If judges could be perceived as "impartial" without judicial "independence", the requirement of "independence" would be unnecessary. However, judicial independence is critical to the public's perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.225
While all members of the Court agreed with this view, the judges divided over what this meant in practice. Lamer and two judges found that judicial independence was limited to the independence of judges and courts from the government while four others preferred to see the legal principle of independence in broader terms as protecting judges from all sources of influence.226
The leading 1997 Provincial Judges Reference case placed the issue of judicial independence and the interaction among the branches of the state squarely before the Supreme Court of Canada. During the general economic recession of the early 1990s, the provincial governments of Alberta, Manitoba and Prince Edward Island reduced salaries of public sector employees as a cost-cutting measure. These reductions applied 'across the board', which included the salaries of provincial judges. In Alberta, the independence of the provincial court was challenged by three accused individuals. In Manitoba, the provincial judges themselves brought an action challenging the reduction of their salaries after the executive negotiated directly with the provincial judges association. In Prince Edward Island, the executive submitted a reference on the constitutionality of the salary reductions. The three appeals were joined together into a single case before the Court.
On behalf of six of the seven judges hearing the case, Chief Justice Antonio Lamer considered the doctrine of judicial independence in Canadian law at length, concluding that the salary reductions violated the guarantee of an independent tribunal under section 11(d) of the Charter. Lamer started his reasoning by noting that the Court needed to "explain the proper relationship" between the judiciary and the other branches of government to alleviate the "strain on this relationship".227 Lamer emphasised that judicial independence was not for the benefit of judges, but rather to secure important societal goals that were critical to the administration of justice.228 One principal goal of judicial independence was the maintenance of public confidence in judicial impartiality, which was seen as "essential to the effectiveness of the court system."229
As the appeals at issue were argued under the Charter, the majority felt compelled to decide the case under section 10(d).230 However, Lamer was of the view that serious limitations arose from viewing the text of the Constitution as an "exhaustive and definitive code for the protection of judicial independence."231 The judiciary's broad interpretation of these provisions in past cases reflected "a deeper set of unwritten understandings which are not found on the face of the document itself."232 According to the Chief Justice, the Constitution did not exhaustively establish fundamental rules in its written text.233 Unwritten organising principles could also be found rooted in the preamble which states that Canada's Constitution is similar in principle to the unwritten constitution of the United Kingdom.234 Unwritten constitutional principles demonstrate the "special legal effect" of the preamble that fills in gaps in the express terms of the constitutional text.235 Lamer held that a foundational principle of judicial independence applied to all Canadian courts, which flowed into the Canadian Constitution from the United Kingdom through the preamble:
I am of the view that judicial independence is at root an unwritten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Acts. The existence of that principle, whose origins can be traced to the Act of Settlement of 1701, is recognized and affirmed by the preamble to the Constitution Act, 1867…
Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located.236
The Chief Justice observed that judicial independence, particularly in its institutional dimension, comprised part of the separation of powers doctrine as it insulated the courts from interference by the other branches of government.237
While reductions to the remuneration of provincial judges would not automatically infringe the independent of the judiciary, the Constitution required that any changes to judicial remuneration proceed through an "independent, objective and effective" process to avoid the appearance of political interference and a loss of confidence in the courts.238 This special constitutional process would require an independent compensation commission to recommend an appropriate level of judicial remuneration.239 While the commission process was mandated by the Constitution as a requirement of judicial independence, Lamer found that the design, procedures and arrangements of the commissions should be left to the executive and legislative branches.240 Even though the compensation commission's recommendations would not be binding, the government would be required to justify a decision to depart from them.241 Lamer cautioned that it would never be possible for the judiciary to negotiate directly with other branches of the state.242 Such negotiations are "fundamentally at odds with judicial independence" because of the trade-offs involved.243 Furthermore, since the Crown is often a litigant, negotiations between the judiciary and the legislative or executive branches would result in a conflict of interest.244 Lamer also imposed a floor on remuneration in that salaries of provincial judges could not be reduced below an amount that would make the judiciary susceptible to economic manipulation.245
In elaborating upon the relationship between the legal principle of judicial independence and the separation of powers, the Chief Justice held that section 11(d) of the Charter must be interpreted to protect the separation of powers. This separation requires the constitutional protection of exclusive functions for the various branches of government.246 Despite this separation, Lamer acknowledged the necessity of interaction among state actors such as where the executive branch carries out laws enacted by the legislative branch.247 According to Lamer, the separation of powers focuses on depoliticising the relationships between the judiciary on one hand and the executive and legislative branches on the other hand as the executive and legislative branches must not be seen to exert pressure on the judiciary.248 While the interaction among the branches is principally governed by convention, conventions do not have the force of law. The Constitution therefore must impose binding requirements on these relationships in relation to the judiciary.249
In a strongly worded dissent, Justice Gérard La Forest took issue with the majority's characterisation of judicial independence as an unwritten constitutional principle on the basis that the appeals were argued by reference to the text of the Charter.250 According to La Forest, public confidence in the judiciary rests on judges responding only to the issues raised by the parties to a legal dispute.251
[Judges] respond to grievances raised by those who come before them seeking to have the law applied, listening fairly to the representations of all parties, always subject to the discipline provided by the facts of the case. This sustains their impartiality and limits their powers. Unlike the other branches of the government, the judicial branch does not initiate matters and has no agenda of its own. Its sole duty is to hear and decide cases on the issues presented to it in accordance with the law and the Constitution.252
La Forest viewed the majority as having defined the proper relationships among the branches of government without the benefit of argument on point. The majority of the Court therefore "can hardly be seen to be indifferent, especially as it concerns their own remuneration."253 Furthermore, according to La Forest, it is critical to "remember that judicial independence is not an end to itself. Independence is required only insofar as it serves to ensure that cases are decided in an impartial manner."254 La Forest concluded that across the board public sector salary reductions would not have caused a reasonable person to perceive a lack of judicial impartiality or independence in the provincial courts.255
Numerous cases followed the Provincial Judges Reference in connection with disputes over judicial salaries, culminating in the 2005 case of Provincial Court Judges Association of New Brunswick v New Brunswick (Minister of Justice).256 In that case, the unanimous Supreme Court of Canada reaffirmed its holding in Provincial Judges Reference that in order to comply with the unwritten constitutional principle of judicial independence, judicial salaries could only be changed through an independent commission process, which was described as 'consultative' as opposed to binding. While the commission's recommendations must be given weight, the government could constitutionally depart from them "as long as it justifies its decision with rational reasons".257 Rational reasons were defined by the Court as those that are legitimate and complete and that deal with the recommendation in a meaningful way.258 The Court provided additional guidance on how the government would be required to respond to the commission if it wished to reject or vary the recommendation:
Legitimate reasons must be compatible with the common law and the Constitution. The government must deal with the issues at stake in good faith. Bald expressions of rejection or disapproval are inadequate. Instead, the reasons must show that the commission's recommendations have been taken into account and must be based on facts and sound reasoning. They must state in what respect and to what extent they depart from the recommendations, articulating the grounds for rejection or variation. The reasons should reveal a consideration of the judicial office and an intention to deal with it appropriately. They must preclude any suggestion of attempting to manipulate the judiciary. The reasons must reflect the underlying public interest in having a commission process, being the depoliticization of the remuneration process and the need to preserve judicial independence.
The reasons must also rely upon a reasonable factual foundation. If different weights are given to relevant factors, this difference must be justified. Comparisons with public servants or with the private sector may be legitimate, but the use of a particular comparator must be explained. If a new fact or circumstance arises after the release of the commission's report, the government may rely on that fact or circumstance in its reasons for varying the commission's recommendations. It is also permissible for the government to analyse the impact of the recommendations and to verify the accuracy of information in the commission's report.
The government's reasons for departing from the commission's recommendations, and the factual foundations that underlie those reasons, must be clearly and fully stated in the government's response to the recommendations. If it is called upon to justify its decision in a court of law, the government may not advance reasons other than those mentioned in its response, though it may provide more detailed information with regard to the factual foundation it has relied upon, as will be explained below.259
The judgment also confirmed an extension of the scope of the unwritten constitutional principle of judicial independence to include justices of the peace. Although justices of the peace are not formally appointed as judges, they were seen to exercise an important judicial role and therefore deserving of the same protection as other judges.260
Litigation over judicial salaries, particularly with respect to the recommendations of the independent commissions, has continued for nearly twenty years since the Provincial Judges Reference. Most recently, a majority of the Court of Appeal for British Columbia overturned the government's rejection of a compensation commission's recommendations on the remuneration of provincial judges, finding that the government had improperly relied on actual financial circumstances after the fact instead of basing its decision on the "prospective financial data projections" that had been made by the commission several years earlier.261 According to the majority, "To allow the Legislature to reject [the commission's] recommendations based on actual results or new projections, long after the fact, distorts the process."262 In terms of a remedy, the majority observed that courts "must be very reluctant to instruct a Legislature how to proceed" but that there was "precedent for doing so" in this case.263 The majority provided a declaratory remedy that the judges were "entitled to the recommendations" of the commission. While the Court did "not consider it appropriate to direct the Legislature how to act", it was prepared to "assume it will respond in accordance with the declarations made."264 In dissent, Justice David Harris found that the government's decision could be justified and took issue with the remedy provided by the majority of the Court, writing that it "encroaches on the Legislature's jurisdiction to allocate funds from the public purse."265
Other cases have sought to further elucidate the meaning of the unwritten constitutional principle of judicial independence in Canadian law. In the 2002 case of Mackin v New Brunswick (Minister of Finance),266 a majority of the Supreme Court of Canada again adopted an unqualified view of the unwritten constitutional principle of judicial independence. On the facts of the case, New Brunswick supernumerary judges challenged the termination of their office as a violation of their independence. Writing for a majority of the Court, Justice Charles Gonthier observed that judicial independence was essential to a properly functioning democratic state.267 Citing the United Nations Basic Principles on the Independence of the Judiciary, Gonthier held that a judge must be "completely independent of any other entity in the performance of his or her judicial functions."268 The relationship between judges and others must be defined by an "intellectual separation" so that decisions can be made solely on the requirements of law and justice.269
In the 2013 case of Ontario v. Criminal Lawyers' Association of Ontario,270 a divided Supreme Court of Canada considered the issue of whether in appointing amici curiae, a trial judge could order compensation in an amount that exceeded the government-approved rate. A majority of the Court reiterated that judicial independence included a core administrative component, which was directed at executive and legislative decisions that bear "directly and immediately on the exercise of the judicial function".271 Courts, however, could not fix the rate of compensation for amici outside of constitutional challenge litigation as it was not necessary for the efficient operation of the judicial process.272 A court setting the rate of compensation would impermissibly enter onto the field of political matters and would not respect institutional roles and the separation of powers, particularly with respect to the allocation of public funds:273
While the rule of law requires an effective justice system with independent and impartial decision makers, it does not exist independently of financial constraints and the financial choices of the executive and legislature. Furthermore, in our system of parliamentary democracy, an inherent and inalienable right to fix a trial participant's compensation oversteps the responsibilities of the judiciary and blurs the roles and public accountability of the three separate branches of government. In my view, such a state of affairs would imperil the judicial process; judicial orders fixing the expenditures of public funds put public confidence in the judiciary at risk.274
In addition to these developments in the doctrine of judicial independence in Canadian law, the expansive interpretation of the unwritten principle of judicial independence by the Supreme Court of Canada has encouraged a variety of novel claims and arguments grounded in judicial independence. For example, over several years, a number of justices of the peace who were charged with misconduct had their legal fees paid by public funds partly on the basis of judicial independence.275 In one case, a justice of the peace was suspended for 10 days after a finding that he had sexually harassed female court staff. His legal bill of $123,000 in connection with the proceedings was paid by Canadian taxpayers.276 In the 2005 case of British Columbia v Imperial Tobacco Canada Ltd,277 a tobacco company claimed that legislation enacted by British Columbia to provide a cause of action for the government to sue manufacturers of tobacco and recover certain publically funded health care expenditures was invalid as it infringed the independence of the judiciary. In deciding the case, the Supreme Court of Canada held that judicial independence would be satisfied when the court "is free, and reasonably seen to be free, to perform its adjudicative role without interference, including interference from the executive and legislative branches of government".278 The company's argument that the legislation forced the court to make irrational presumptions and implicated the judicial fact-finding process was rejected. According to the Court, the company's argument "would be to recognize a constitutional guarantee not of judicial independence, but of judicial governance".279 The legislation did not fundamentally alter or interfere with the court's adjudicative role even though it shifted certain onuses of proof and limited the judicial use of certain evidence. In the Court's view, "[j]udicial independence can abide unconventional rules of civil procedure and evidence".280 One year later, in the case of Reilly v Walter,281 an Alberta provincial court judge claimed that the Chief Judge's refusal to allow him to seek reimbursement from a professional development fund for the purpose of attending a conference session on "peace-building initiatives" in Switzerland infringed his individual judicial independence. The judge was unsuccessful before the Alberta Court of Queen's Bench and costs were awarded against him. In the 2011 case of Donald Frederick Angevine v Ontario,282 the Ontario Superior Court of Justice dismissed a claim by a lawyer that he had an enforceable contract with the province's Attorney General to be appointed as a provincial court judge, which he claimed had been breached. The Court rejected the claim. In considering the enforceability of such a contract, the Court held:
It is this exchange of consideration that to my mind undermines judicial independence because it creates a loyalty, or at least the perception of a loyalty to the promissor; in the words of Chief Justice Latimer, it engenders a set of expectations about the behaviour of the parties to the contract. From the public's perspective, it smacks of political inference, and leaves the public to question the impartiality of those tasked with dispensing justice.
A judge whose appointment is the result of a binding contractual promise lacks the appearance of independence, if not actual independence. In this way, making a judicial appointment the subject of a binding promise runs contrary to public policy of the highest order, and such promise ought not to be enforceable.283
In 2015, a defendant who was sued for defamation by the former premier of Newfoundland and Labrador claimed that his right to have the case decided fairly was at risk because a courthouse had been named "The Danny Williams Building" in honour of the premier. In its decision, the Supreme Court of Newfoundland and Labrador rejected that the naming of the courthouse infringed the independence of the judiciary with respect to the suit, pointing to the oath that judges swear to do right to all manner of people "without fear, favour, affection or ill-will".284
Canadian judges have also used an expansive interpretation of the unwritten constitutional principle of judicial independence as the means to question reform efforts. Over the past several years, the British Columbia government has initiated a number of procedural reforms to streamline the litigation process. Some of the proposed reforms have become controversial in relation to judicial independence and the ability of the judiciary to manage its own process. The difficulty relates to the third aspect of judicial independence that is recognised as part of the Canadian doctrine of judicial independence as it is not clear what 'some administrative independence' includes. The interpretive uncertainty of this aspect of judicial independence generated an unprecedented public debate between the British Columbia government and the judiciary. In February 2012, the British Columbia government published a green paper in relation to its Justice Reform Initiative entitled 'Modernizing British Columbia's Justice System'.285 The paper suggested a number of new civil and criminal procedural reforms to modernise and achieve efficiencies in the justice system, which the government noted was important to families and jobs. According to the green paper, the problems of cost and delay in the justice system were unacceptable and required action "due to the reliance of British Columbia, their families and our economy on a sound system of justice."286 The green paper noted:
The system is complex and challenging to reform. While it is possible to point to areas where a discussion of reform is warranted, it is also true that there are significant issues of culture and tradition within the system that may impede real understanding and change. Standing above this is the issue of independence of decision-making within the system. It is vital for our democracy that the exercise of judgment in criminal and civil cases – by police, by counsel, by judges and others in the system – be free of interference or influence. At the same time, the close linkage between the different parts of the justice system in managing case files, and our need to explain what is happening within the system, means we must administer the justice system as a system. In doing so, we must remain on strong constitutional grounds.287
With respect to the constitutionally-protected principle of judicial independence, the green paper noted its interpretive uncertainty and problems that could arise if a broad view of judicial independence was adopted:
Key parts of the system are, as a part of the rule of law, operationally independent by law or under our constitution. But independence should not be used as a shield against scrutiny on issues related to public administration (for example, where business process improvements are needed). Overbroad concepts of independence make it harder to understand why process and other justice system inefficiencies occur. They can also limit accountability.
Possible solution: What is expected by the public, by government, and all other stakeholders of the system, is a model which preserves the essential operational independence of police, the judiciary, corrections, and Crown counsel in a way that respects that independence and discretion on a case-by-case basis while enabling a meaningful capacity to plan, implement and analyze justice system services.288
Following the publication of the government's green paper, the British Columbia judiciary took unprecedented action in responding to the proposed reforms. The Chief Justice of British Columbia, the Chief Justice of the Supreme Court of British Columbia and the Chief Judge of the Provincial Court of British Columbia posted a joint statement on the court website entitled 'Judicial Independence (And What Everyone Should Know About It)'.289 In the statement, the judges linked their independence to the rule of law and the idea that no person or government could operate beyond the reach of the law.290 The judges wrote that they had an obligation to protect their independence and impartiality in the public interest and that judicial independence was a binding principle entrenched in the Canadian Constitution.291 According to the judges, judicial independence "means that judges are not subject to pressure and influence, and are free to make impartial decisions based solely on fact and law."292 The judges took aim at the idea that their independence could be used as a shield against scrutiny, which they described as a "mistaken view" as judicial independence serves the public interest.293 In terms of administrative independence, the judges wrote that courts must be able to decide how to manage the litigation process and which cases judges will hear. In particular, the judges summarised a number of functions that judicial independence required to be within the control of the judiciary, including the assignment of judges to hear cases, the scheduling of court sittings, the control of lists for cases to be heard, the allocation of courtrooms and the direction of registry and court staff in carrying out these functions.294 According to the judges, the public could not have confidence in the independence and impartiality of the judiciary if the government could control or manipulate proceedings by interfering in these functions. While the judges acknowledged the importance of accountability and wrote that they were open to discussing ways to improve the administration of justice, "if there is a business case to be made for cost savings, that case must be made within the confines of what is permitted by the Constitution."295 The judges took direct aim at the reform proposals, noting that they had overlooked important context, that the proposed limits on human resources would create problems and that more flexibility was needed.296 The statement concluded by highlighting how judicial independence was different from the "sort of independence" that related to police, prosecutors and defence counsel.297
The British Columbia government proceeded to appoint lawyer Geoffrey Cowper to conduct an independent review of the criminal justice system. His report made a number of recommendations to improve the performance of the justice system.298 It also included a chapter on judicial independence, which discussed the "boundaries of judicial independence and its role in the reform process."299 Cowper noted that the manner in which judicial independence is interpreted would influence the judicial system's efficiency and that the green paper and the judges' statement had shown that "some interpretations of independence are an obstacle to productive change and go beyond the accepted meaning of those terms."300 According to Cowper, the precise content of 'some administrative independence' required by the unwritten constitutional principle of judicial independence was difficult to interpret. The Supreme Court of Canada's guidance that administrative independence referred to decisions relating directly and immediately to the exercise of the judicial function also raised further questions.301 Cowper's report goes on to discuss a number of cases, arguing that there are "important limitations on interpreting judicial independence" in relation to procedural reform and that the general administrative structure of the court could not be preserved for the exclusive management of judges.302 Cowper's report highlighted cases where the three branches of government worked together to achieve a common goal, which means that judicial independence did not require the strict separation of the courts from the other branches of government in all ways "but only in so far as such a relationship may impact the core elements of the judicial function."303 In Cowper's view, court administration is an area of shared responsibility that must be managed between the judiciary and the government cooperatively and collaboratively.304 This was important to ensure that the government could achieve efficiencies in the judicial system:
[T]he judiciary is appropriately responsible for the discharge of their important adjudicative functions. But in relation to the achievement of broader outcomes, they are best engaged in a persuasive and facilitative role. The Ministry of Justice must be held primarily responsible for the achievement of outcomes from the system.305
Following Cowper's report, the British Columbia government pressed ahead with a number of significant reforms to the justice system, including reforms to the litigation procedure.306 The controversy over procedural reform and judicial independence demonstrates that reform driven by the government's desire to achieve a streamlined judicial system carries broader implications for institutional relationships between the judiciary and the other branches of government. While it is beyond dispute that economic efficiency and access to affordable justice are real concerns in the justice system, they are not the exclusive concerns. In Canadian law, the independence of the judiciary and the rule of law may be implicated by procedural reforms that impair the judiciary's ability to control and manage the judicial process and other matters relating to courts. At the heart of the debate over procedural form was the interpretive uncertainty with respect to the requirement of the unwritten constitutional principle of judicial independence that judges have 'some administrative independence'. The parameters of what is or is not required to be within the exclusive domain of the judiciary is not certain in the case law, creating a significant challenge for ongoing and future reform efforts.
This section critiques the doctrine of judicial independence in Canadian law from the perspective of the contextually-dependent understanding of judicial independence set out earlier. Through a number of its judgments, the Supreme Court of Canada has articulated a broad view of the legal principle of judicial independence, which paradoxically may threaten to undermine the standing of the judicial institution. One of the most significant aspects of the doctrine of judicial independence in Canadian law is the degree to which it empowers the court to be the arbiter of its own independence. A general guarantee of judicial independence is seen to flow into the Canadian Constitution through its preamble. This guarantee has constitutional bite in the sense that it can operate to legally invalidate executive and legislative action. While several court judgments have sought to shed light on the meaning of judicial independence in Canadian law, the unwritten constitutional principle remains somewhat uncertain.
In its early cases, prior to the characterisation of judicial independence as a binding unwritten constitutional principle, the Supreme Court of Canada adopted an unqualified definition of the independence of the judiciary. For example, in The Queen v Beauregard, it held that the judges required "complete liberty" in hearing cases and making decisions.307 According to the Court, "no outsider – be it government, pressure group, individual or even another judge – should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision".308 Chief Justice Brian Dickson envisioned Canadian judges as protectors of the Constitution against the other branches of government, which called for complete judicial freedom from all sources of influence.309 While the Court backtracked from this position in MacKeigan v Hickman by holding that judicial independence was more limited in the sense that it was directed only at essential judicial functions (although it was not clear what counted as an essential judicial function), the Court returned to a broader view of judicial independence in Mackin v New Brunswick (Minister of Finance).
As discussed earlier in relation to the international perspective on judicial independence, an unqualified view of judicial independence provides little guidance in terms of the practical requirements of an independent judiciary. At the international level, the call for absolute judicial freedom results in countries having a lack of direction for achieving an international standard of judicial independence. In Canada, a view of absolute judicial freedom breeds uncertainty in the doctrine of judicial independence, which stands to negatively implicate the operations of governmental actors by overly formalising or sterilising their relationships. Because judges are subject to a wide variety of influences from a number of sources, judicial independence must focus on the key points of interaction between the judiciary and actual and potential sources of improper influence as those are defined by the community. Under a context-dependent view of judicial independence, the community defines the points of interaction between judges and others that are most concerning in terms of promoting perceptions of judicial impartiality.
Although it conceives of judicial independence in broad and unqualified terms, the Supreme Court of Canada has observed that the rationale of independence is impartiality and public confidence in the adjudication of disputes. For example, in Valente v R, the Court held that the purpose of judicial independence was to promote public confidence in the administration of justice.310 In R v Lippé, Chief Justice Antonio Lamer observed that judicial independence served the perception of impartiality.311 Similarly, in the Provincial Judges Reference case, a majority of the Court recognised judicial independence as necessary to the maintenance of public confidence in judicial impartiality.312 This connection between judicial independence and the perception of impartiality is in line with a contextually-dependent understanding of judicial independence. Notably, the perception of impartiality is a well-established doctrine in Canadian law in relation to cases where individual judges are accused of bias. In such cases, the reviewing court decides whether the judge should be removed from the case by applying the contextually-driven test of "what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."313 According to the unanimous Supreme Court of Canada in the 2015 case of Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General),314 the test is designed not only to ensure the reality of impartial adjudication but also the appearance of a fair process.315 In that case, the Court found that a judge who had made a number of disparaging and disrespectful remarks to counsel would lead a reasonable and informed person to conclude that there was a reasonable apprehension of bias.
While the impartiality doctrine in Canadian law is sensibly applied to cases where the conduct of a particular judge is in issue in order to make an assessment of whether the judge should hear the case, it appears rhetorical in judicial independence cases that consider the institutional arrangements and standing of the court more broadly, particularly in relation to the other branches of government. Sweeping views of public perceptions are often expressed by the Supreme Court of Canada on the basis of very little evidence or none at all. Impartiality and public perceptions appear to be used as the means to justify the judicially preferred outcome in such cases. In Provincial Judges Reference, for example, after determining that a compensation commission process was required by the unwritten constitutional principle of judicial independence, a majority of the Court sought to justify its holding with reference to public confidence in the courts, even though this process had not been required in the past. While judicial compensation and salaries are clearly important to public perceptions of the court, which can be seen even in ancient Egypt, the Chief Justice claimed that the absence of a compensation commission would threaten public confidence in a fair judicial process.316 It is surprising that the Court, in invoking and applying a constitutionally binding principle of judicial independence, would speculate on an empirical question about potential increases or decreases in public confidence in the courts given that other constitutional principles would not be interpreted and applied in the absence of supporting evidence.317 While judges are experts in the administration of justice, this expertise does not necessarily correspond to expertise in public opinions about courts and judges. In fact, under a robust view of independence, the judge is likely to be somewhat removed from mainstream views. Evidence of public confidence in the courts is especially important in cases where judges are liable to be seen as self-interested, particularly on matters of compensation. In the case of Provincial Judges Reference, commentators observed that it was very unlikely for Canadians to think that provincial judges would convict innocent persons to gain favour with the government for the purpose of obtaining salary benefits.318 In the words of dissenting Justice La Forest:
It is simply not reasonable to think that a decrease to judicial salaries that is part of an overall economic measure which affects the salaries of substantially all persons paid from public funds imperils the independence of the judiciary. To hold otherwise is to assume that judges could be influenced or manipulated by such a reduction. A reasonable person, I submit, would believe judges are made of sturdier stuff than this.319
Therefore, while the Court properly identified confidence in adjudicative impartiality as the rationale of judicial independence, it has in practice used public confidence and perceptions of impartiality as rhetorical devices to advance its preferred institutional arrangements. The true focus of the courts appears to be on judicial independence instead of perceptions of impartiality. Impartiality is simply invoked to justify the preferred outcome as being in the best interest of Canadians. The link between judicial independence and the perception of impartiality in judicial independence cases must be taken seriously as the perception of impartiality places an important limitation on the content of judicial independence. It appears that Canadian courts would benefit from a more cautious approach in offering views of the community and perceptions of judicial impartiality in judicial independence cases without evidence on point.
The use of an unwritten constitutional principle in the Provincial Judges Reference case may also serve to diminish respect for the value of judicial independence. By claiming that the independence of the judiciary was infringed in a case where provincial governments implemented an across the board public sector salary decrease, which was unlikely to implicate public confidence in the administration of justice, the Supreme Court of Canada 'cried wolf'. Given the critical importance of judicial independence to protect the perception of impartiality, a tradition that can be seen to stretch back through the ages and is an essential ingredient of any peaceful society under the Hobbesian social contract, the independence of the judiciary should be invoked only in extraordinary circumstances. Given its significance to the administration of justice, infringements of judicial independence should be limited to cases involving a clear infringement of a critical rule or practice that is designed to protect perceptions of impartiality. Instead, it appears that judicial independence is invoked by Canadian courts to deal with the intricacies of institutional relationships.
It is clear that the Court did not fully think through the implications of its judgment. The Court's holding that the provincial judiciaries at issue in the Provincial Judges Reference case were not independent created immediate practical difficulties. Criminal defence lawyers quite rightly considered applications to set aside convictions that had been entered by those courts in past cases given that the guarantee under section 11(d) of the Charter for a criminally accused to be tried by an independent tribunal was not met. The Court was required to hold an exceptional re-hearing and issued a second judgment several months later to deal with this question. In Provincial Judges Reference (No 2),320 the Court invoked the doctrine of necessity to allow a judge, who would otherwise be disqualified to hear a case, to sit in the absence of another qualified judge. According to Chief Justice Antonio Lamer, "the doctrine of necessity recognises the importance of finality and continuity in the administration of justice and sanctions a limited degree of unfairness toward the individual accused".321 The provincial judges "through no fault of their own, were found not to be independent as a result of the actions of their governments", which therefore justified the application of the doctrine of necessity to render their decisions valid.322 In this follow-up judgment, the Court also suspended the effect of its original judgment imposing the compensation commission process for a period of one year "to allow governments time to comply with the constitutional requirements … and to ensure that the orderly administration of justice is not disrupted in the interim".323 By characterising judicial independence as an unwritten constitutional principle in Provincial Judges Reference to regulate the negotiation of judicial salaries, the Court had to face the embarrassing implications of its decision on the criminally accused. More importantly, the use of judicial independence in such a case had a number of knock-on effects that implicate the standing of the courts. As seen earlier, it has encouraged trivial judicial independence claims by judges and litigants, which stands to diminish respect for the judicial institution more broadly.
The Supreme Court of Canada's use of judicial independence as an unwritten constitutional principle to regulate relationships between the judiciary and the other branches of government also breeds legal uncertainty. In the Provincial Judges Reference case, the majority of the Supreme Court of Canada failed to clearly define the substantive content or limits of judicial independence in Canadian law. Chief Justice Antonio Lamer held that judicial independence defines the "proper relationship" between the judiciary and other branches of the state without providing certainty as to the meaning of that term.324 The result is an amorphous constitutional principle that provides little guidance in assessing which action might be seen by the courts to interfere with their independence and thus liable to judicial invalidation. In effect, what is seen to infringe this constitutional principle by implicating the "proper relationship" between the judiciary and others will be determined on a case-by-case basis by the courts themselves. Therefore, in addition to an inherent conflict of interest position of the court in deciding such cases, the uncertainty of judicial independence carries the risk of overly formalising and sterilising relationships between the judiciary and the executive and legislative branches as governmental actors will be less likely to take action in relation to the judiciary. For example, the British Columbia case shows that this legal uncertainty acts as a stumbling block in the government proposing important court reforms, which could promote public confidence in the judiciary by enhancing access to justice. The downside of increasingly formalised relationships between the courts and others is the disengagement of governmental actors in matters relating to the judiciary. For example, in the recent book The Politics of Judicial Independence in the UK's Changing Constitution, the authors document the increasingly formal relations between British judges and other legal actors, concluding that "the greatest threat to judicial independence in future may lie not with politicians' actively seeking to undermine the courts, but rather with their increasing disengagement from the justice system and the judiciary."325 Notably, Justice Beverley McLachlin observed the interdependent nature of relationships between the judiciary and the executive and legislature in MacKeigan v Hickman when she held that it was "impossible to conceive of a judiciary devoid of any relationship to the legislative and executive branches of government."326 A retreat of the executive and legislative branches from their proper role in regulating aspects of the courts is especially problematic as courts rely on others to protect their independence in a variety of matters including appointment, procedure, promotion, staffing and facilities and the enforcement of judgments. In other words, judicial independence cannot be protected by courts alone through an unwritten constitutional principle. Instead, the courts must find support for the underlying value of impartial decision-making from within the other institutions of government. Traditionally, this commitment was reflected in the course of their interactions and the development of conventions and other informal norms.327
The ex post facto judicial review of interactions between the judiciary and other state actors is especially ill-suited to the Canadian context, where informal conventions have historically played a large role in regulating the relationships among constitutional actors.328 In the Provincial Judges Reference case, Lamer broke with this venerable tradition by writing that conventions were not up to the job in protecting the autonomy of courts. According to Chief Justice Antonio Lamer, their unenforceable status could not sufficiently guarantee the independence of courts that was necessary to maintain public confidence.329 However, it is important to note that informal conventions have for many years provided Canadians with good reason to hold the courts in high esteem. For example, a cabinet minister who spoke with a judge about a pending case would be expected to resign his or her office.330 Canadian legislators also abide by the sub judice convention to ensure that the court's role is "not usurped by others making public statements about how these issues should be dealt with".331 The upshot of conventions is that they are adaptable, evolving over time to meet new circumstances and challenges, making them well-suited to a changing judicial role. Under an unwritten constitutional principle of judicial independence, by contrast, courts have the final say on what required by adjudicating upon the meaning of judicial independence. Courts also have a privileged position in such cases in that they use the language of rights and the rule of law. Conventions avoid this problem by levelling the playing field as all governmental actors are involved in formulating standards of conduct through their practices and interactions that evolve over time. This organic process provides a more accurate reflection of values shared among the institutions of government, which can be seen as having more legitimacy and normative value. By converting a collection of conventions and other informal norms relating to the independence of courts into an unwritten constitutional principle, the Supreme Court took control over the development of institutional relationships involving the court and ousted the important role previously played by conventions. The relationships between Canadian courts and the other branches of government will now develop not organically but through a formal legal process in court with the judiciary itself determining the "proper relationship" that is required. By seeking to depoliticise the relationships between courts and the executive and legislature, the court instead legalised them.
From the perspective of the context-dependent framework of judicial independence advanced earlier, perhaps the most troubling aspect of the doctrine of judicial independence in Canadian law is the damage that the court judgments, particularly the Provincial Judges Reference case, caused to public perceptions of courts. The judgment unleashed a storm of criticism.332 Commentators viewed the decision as self-serving as provincial judges received large salary increases following the implementation of the commission process that was now mandated by the preamble to the Constitution.333 The Supreme Court of Canada's inherent conflict of interest in mandating a process for changes to judicial compensation can be seen as responsible for the extensive criticism following the judgment. According to Hobbes, adjudicators who appear to gain from the outcome of a decision take an unavoidable bribe in the sense that they become party to the dispute.334 Because individuals are presumed to pursue their self-interest, the Hobbesian social contract concludes that no man is a fit adjudicator in his own case.335 Somewhat ironically, the decision in Provincial Judges Reference was premised on having the very opposite effect of bolstering public confidence in the judiciary. It appears that the majority of the Court focused on the idea of judicial independence, and the autonomy and benefits that could be secured through the judicial recognition of an unwritten constitutional principle of judicial independence, instead of how the case was likely to be perceived and its longer-term implications. In doing so, the Court neglected perceptions of impartiality.
Michael Plaxton offers a solution to cases like Provincial Judges Reference that involve a conflict of interest.336 According to Plaxton, a distinction between constitutional and prophylactic rules could work to preserve the Court's legitimacy in such cases.337 Prophylactic rules are directives fashioned by judges to prevent violations of the constitution, but unlike ordinary rules, prophylactic directives are not mandatory if the state devises an alternate method of fulfilling its obligations.338 Prophylactic rules present just one of several possible options to achieve a constitutional end, thus providing a role for the other branches of government to fashion ways of ensuring constitutional requirements are met.339 An example of a prophylactic rule is the Supreme Court of the United States judgment in Miranda v Arizona,340 where it was held that the police must inform arrested individuals of their right to remain silent and caution them that anything said could be used in evidence against them at trial. The Court devised this warning as a way of protecting the constitutional right against self-incrimination. However, since the Miranda warning is not set out in the text of the Constitution, it is not obligatory where the state finds alternate ways of protecting the right. In other words, while following the Court's directive to provide the warning ensures compliance with the Constitution, it might not be the only constitutionally acceptable course of action. In a case where an accused was not warned, the court must decide whether any statements made to the police were voluntary in accordance with the constitutionally-protected right.
It would appear that prophylactic rules would be suited to the Canadian constitutional context as they encourage institutional dialogue and provide an opportunity for governmental actors to participate in developing a shared understanding of the Constitution, a process more in line with the development of conventions and other informal norms. The Supreme Court of Canada's remedy would not be seen as the final word if the other branches could devise an alternative strategy that protected the underlying constitutional right at issue. With respect to the Provincial Judges Reference case, Plaxton writes:
Had the Court recognized prophylactic rules, it would have regarded itself as bound either to justify its claim that the strategy generated in [Provincial Judges Reference] is dictated by the terms of the constitution (knowing that its reasons would undergo scrutiny and possible challenge at a later date), or to concede that the strategy is strictly prophylactic. In making that concession, the Court would have invited provincial legislatures to examine strategies that would have fulfilled their constitutional responsibilities without guaranteeing perfect public confidence in the independence of judges. Such strategies might well have involved more direct interaction between the judiciary and the legislative branch. On the other hand, provincial legislatures might have concluded that they should have precisely the sort of commissions prescribed in [Provincial Judges Reference]. That would have been their decision to make, for better or for worse.341
The use of prophylactic rules by the Supreme Court of Canada in Provincial Judges Reference would have initiated a dialogue with the other branches and involved them in the process of determining how to appropriately set the salaries of judges while protecting public confidence in the courts.342
This article proposed a context-dependent understanding of judicial independence within which further research and discussion can take place. From the starting point of adjudication as the basic function of the judiciary, this article surveyed past scholarship and embarked on a historical enquiry to shed light on the role of the judge in resolving legal disputes. This enquiry revealed a tradition of judicial impartiality stretching back to the legal system of ancient Egypt. Hobbesian social contract theory confirmed the importance of impartiality in the process of third party adjudication, which is necessary to all peaceful societies where individuals give up the right to decide their own disputes. The article built upon this understanding to propose the perception of impartiality as the rationale of judicial independence. From this perspective, the article examined Canada as a case study on judicial independence and critiqued the doctrine of judicial independence that has developed in Canadian law.
While the understanding of judicial independence set out in this article answers a number of questions relating to the independence of the judiciary, further study and reflection is needed. From the work of the contextualist judicial independence scholars reviewed earlier, it appears that rich and detailed comparative studies of judicial independence at the domestic level stand to offer a great deal to the scholarship by showing the various features that play a role in shaping judicial institutions and the meaning of judicial independence over time. Comparative studies are likely to reveal common elements and problems in judicial independence that may persist across different legal systems and traditions. These studies also stand to show whether judicial independence tends to follow a certain path during the course of its evolution and whether the meaning and use of judicial independence in different states is presently converging or diverging. Finally, comparative studies are likely to enhance the work of judicial reformers and other international organisations concerned with judicial issues by providing a deeper understanding of the working of judicial institutions and their interactions with others.
* JD (Victoria), LLM (McGill), PhD (Cambridge), Member of the Law Society of Upper Canada; Assistant Professor, Thompson Rivers University, Faculty of Law (Kamloops, British Columbia, Canada); Life Member, Clare Hall, University of Cambridge. The author acknowledges the financial support of the Law Foundation of British Columbia, the Law Society of British Columbia, the Social Sciences and Humanities Research Council of Canada and McGill University, Faculty of Law. An earlier version of this paper was published in (2012) The Romanian Judges' Forum Review 28 and on the Social Science Research Network.
1 See eg, Transparency International, 'Judiciary' accessed 20 September 2015 and World Economic Forum, 'The Global Competitiveness Report 2014-2015' accessed 20 September 2015.
2 President Musharraf's suspension of judges in late 2007 sparked protests by lawyer associations both inside and outside of Pakistan, in addition to condemnation by numerous states: see eg, Jane Perlez and David Rohde, 'Pakistan Attempts to Crush Protests by Lawyers' The New York Times (6 November 2007) accessed 20 September 2015 and Gardiner Harris, 'President of Sri Lanka Dismisses Chief Justice' The New York Times (13 January 2013) accessed 20 September 2015.
3 G Gee, 'The Politics of Judicial Independence in a British-style Constitution' presentation to the Looking Back, Looking Forward: Judicial Independence in Canada and the World conference, 30 November 2007 accessed 20 September 2015 and Peter H Russell, 'Toward a General Theory of Judicial Independence' in Peter H Russell and David M O'Brien (eds), Judicial Independence in the Age of Democracy: Critical Perspectives From Around the World (University Press of Virginia 2000). See Russell 1–6 who discusses expectations of a general theory of judicial independence.
4 United Nations, 'Basic Principles on the Independence of the Judiciary' (1985) adopted at the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Milan, 1985) endorsed by General Assembly Res. 40/32 (29 November 1985) and Res. 40/146 (13 December 1985), art 2.
5 This phrase is borrowed from Thomas Nagel, The View From Nowhere (OUP 1986). In this context, it refers to an adjudicator devoid of opinions or perspectives.
6 Ref re Remuneration of Judges of the Prov Court of PEI ("Provincial Judges Reference") [1997] 3 SCR 3.
7 This definition is inspired by John Rawls, A Theory of Justice (rev ed, Harvard University Press 2005) 4.
8 While arbitration and mediation play a significant role in helping persons overcome disagreements, this paper focuses on conflicts that cannot be settled by other means except adjudication.
9 Judiciaries in most states tend to perform many more functions than adjudication but for the purposes of this paper, adjudication is explored as the basic function of courts. Russell points out that the 'judiciary' includes any official who performs adjudication in order to prevent the state from transferring adjudicative functions to others who do not receive the same protections as judges: Russell (n 3 above) 8–9.
10 See Peter H Russell, The Judiciary in Canada: The Third Branch of Government (McGraw-Hill Ryerson 1987) 5–10.
11 Shimon Shetreet and Jules Deschênes, Judicial Independence: The Contemporary Debate (Martinus Nijhoff 1985).
12 Shimon Shetreet, 'The Emerging Transnational Jurisprudence on Judicial Independence: IBA Standards and Montreal Declaration' in Shimon Shetreet and Jules Deschênes, Judicial Independence: The Contemporary Debate (Martinus Nijhoff 1985) 393 and Shimon Shetreet, 'Judicial Independence: New Conceptual Dimensions and Contemporary Challenges' in Shimon Shetreet and Jules Deschênes, Judicial Independence: The Contemporary Debate (Martinus Nijhoff 1985) 590.
13 Shetreet, 'Judicial Independence: New Conceptual Dimensions' (n 12 above) 590–2.
14 Ibid 591–2.
15 Ibid 591.
16 International Bar Association, 'Minimum Standards of Judicial Independence' (1982) accessed 20 September 2015.
17 World Conference on the Independence of Justice, 'Universal Declaration on the Independence of Justice' (10 June 1983) accessed 20 September 2015.
18 Basic Principles (n 4).
19 Shetreet, 'The Emerging Transnational Jurisprudence' (n 12 above) 395.
20 World Conference on the Independence of Justice, 'Mount Scopus Approved Revised International Standards of Judicial Independence' (19 March 2008) accessed 20 September 2015.
21 Shimon Shetreet, 'The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges' (2009) 10 Chicago Journal of International Law 275, 276.
22 Mount Scopus Standards (n 20 above) art 1.1.
23 Ibid art 1.2.
24 Shetreet (n 21 above).
26 Shimon Shetreet and Christopher Forsyth (eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Martinus Nijhoff 2012).
27 Ibid 17.
31 Ibid 18–19 and Mount Scopus Standards (n 20 above) art 2.21. See also Shimon Shetreet (ed), The Culture of Judicial Independence: Rule of Law and World Peace (Martinus Nijhoff 2014).
32 Anja Seibert-Fohr (ed), Judicial Independence in Transition (Springer 2012).
33 Anja Seibert-Fohr, 'Judicial Independence – The Normativity of an Evolving Transnational Principle' in Anja Seibert-Fohr (ed), Judicial Independence in Transition (Springer 2012) 1279.
36 Ibid 1281, 1350.
37 Stephen B Burbank and Barry Friedman (eds), Judicial Independence at the Crossroads: An Interdisciplinary Approach (Sage 2002).
38Stephen B Burbank and Barry Friedman, 'Reconsidering Judicial Independence' in Stephen B. Burbank and Barry Friedman (eds), Judicial Independence at the Crossroads: An Interdisciplinary Approach (Sage 2002) 17.
42 Russell and O'Brien (n 3 above).
43 Russell (n 3 above) 1.
44 Ibid 4.
48 Antoine Garapon, 'A New Approach for Promoting Judicial Integrity' in Randall Peerenboom (ed), Judicial Independence in China: Lessons for Global Rule of Law Promotion (CUP 2009) 37.
55 See eg Ran Hirschl, 'Early Engagements with the Constitutive Laws of Others: Lessons from Pre-Modern Religious Law' in Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (OUP 2014).
56 H Patrick Glenn, Legal Traditions of the World (3d edn, OUP 2007).
62 Ibid. The value Glenn places on the knowledge and understanding of others is presumably itself a tradition.
65 Ibid 9. For example, if the language of the text could no longer be understood, its meaning would be lost from the collective human memory.
66 Presumably, this is why many great texts take the form of dialectic reasoning.
67 Glenn (n 56 above) 10.
68 Oxford English Dictionary (online edn) 'tradition' accessed 20 September 2015.
71 Information must be received from physical objects and written texts with great care and cultural sensitivity. With respect to physical objects, Glenn observes that they "do not speak or communicate in a human language, so a particular receptivity is called for […]" ibid 7. The interpretation of written texts presents significant challenges. Glenn writes that "[a]gainst non- traditional interpretations, the text cannot answer back. It simply is the canon, forever such and as such, forever vulnerable. … Absent demonstrable adherence to custom, or revelation, the text may be seen more as a point of departure than as a means of continuance" ibid 10.
72 For example, the scales of justice as a symbol of justice first appeared in ancient Egypt c. 2000 BCE. See James Henry Breasted, The Dawn of Conscience (Charles Scribner's Sons 1933) 189–90, the title of which inspired the name of this section. See also Russ VerSteeg, Law in the Ancient World (Carolina Academic Press 2002) 108. In addition to legal traditions, ancient Egyptians contributions to art, architecture, astronomy, literature and medicine are felt in the present. The progressiveness of ancient Egyptian society is detailed by Breasted.
73 Although many ancient records have been lost or destroyed, the ancient Egyptians meticulously recorded their affairs, producing huge quantities of written sources, a fraction of which are preserved. See RO Faulkner, 'The Kingdom Under Ramesses III' in The Cambridge Ancient History: The Middle East and the Aegean Region c. 1380–1000 BC (3d edn, CUP 1975) 244, 245 and John Van Seters, In Search of History: Historiography in the Ancient World and the Origins of Biblical History (Yale 1983) 129 who writes that "no Near Eastern society was more meticulous in its record keeping".
74 See generally EA Wallis Budge, The Rosetta Stone (Dover Publications 1989).
75 See Raymond Westbrook, 'What is the Covenant Code?' in Bernard M. Levinson (ed), Theory and Method in Biblical and Cuneiform Law (Sheffield Academic Press 1994) 13.
77 See Pier Giuseppe Monateri, 'Black Gaius: A Quest for the Multicultural Origins of the "Western Legal Tradition"' (2000) 51 Hastings LJ 479, 521.
78 For a critical examination of Ma'at in modern moral language see Maulana Karenga, Maat, The Moral Ideal in Ancient Egypt: A Study in Classical African Ethics (Routledge 2004).
79 James Henry Breasted, Ancient Records of Egypt (vol 1, Michael S. Sanders 1988) 325–31, 355–7.
80 Breasted (n 72 above) 154–7.
83 James Henry Breasted, Ancient Records of Egypt (vol 2, Michael S. Sanders 1988) 665–68.
84 John Albert Wilson, 'Authority and Law in Ancient Egypt' in John Albert Wilson and EA Speiser, Authority and Law in the Ancient Orient (American Oriental Society 1954) 6.
85 James Henry Breasted, Development of Religion and Thought in Ancient Egypt (University of Philadelphia Press 1972) 241–2.
86 See Breasted (n 72 above) 127.
87 VerSteeg (n 72 above) 111.
88 Cyril Aldred, 'The Reign of Horemheb' in The Cambridge Ancient History: The Middle East and the Aegean Region c. 1380–1000 BC (3d edn, CUP 1975) 71, 76 who writes that there was "widespread corruption" at the time Horemheb assumed office.
89 Wilson (n 84 above) 120–3.
91 Ibid. See also Aldred (n 88 above) 76.
92 Breasted (n 72 above) 324.
93 Story paraphrased from the translations in RB Parkinson, The Tale of Sinuhe and Other Ancient Egyptian Poems (OUP 1997) 54–88 and George A. Barton, Archeology and The Bible (7th ed, American Sunday School 1937) 525–8.
94 Parkinson, ibid 63.
97 Ibid 69. The text "weigh for the robber" is taken to mean that a biased judge places more weight on the scales in favour of the blameworthy party.
99 Monateri (n 77 above).
100 Ibid 516.
101 Breasted (n 72 above) 341.
102 Monateri (n 77 above) 519, 522.
103 See Yaacov Shavit, History in Black: African-Americans in Search of an Ancient Past (Frank Cass 2001) 114. Greek laws at the time were 'draconian', having been written by Draco, and consisted of almost entirely capital offences.
104 Monateri (n 77 above) 527.
105 At its height, the Roman Empire included most of continental Europe and parts of Great Britain. For the consideration of Roman influence on the civil law tradition see John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (3d edn, Stanford University Press 2007) 13. Although Roman legal traditions had less influence on the development of the common law, its influence is still felt. See Arthur P Monahan, Consent, Coercion and Limit: The Medieval Origins of Parliamentary Democracy (McGill-Queen's University Press 1987) 76 and George Mousourakis, The Historical and Institutional Context of Roman Law (Ashgate 2003) 434.
106 See Breasted (n 72 above) 338. For consideration of the influence of the Old Testament on western civilisation see 'The Old Testament' in John L. Beatty and Oliver A. Johnson, Heritage of Western Civilization (vol 1, 8th edn, Prentice Hall 1995) 21.
108 Hebrew interaction with the Semitic Canaanite civilisation is recorded in the Old Testament books of Joshua and Judges.
109 Exodus 2:10.
110 King James Version.
112 The two tablets delivered by Moses on Mount Sinai may represent the Ma'atian concepts of law and justice. See Gerald Massey, Ancient Egypt: The Light of the World (vol 1, T Fisher Unwin 1907) 537. See also J Gwyn Griffiths, 'The Legacy of Egypt in Judaism' in William Horbury, WD Davies and John Sturdy, The Cambridge History of Judaism: The Early Roman Period (vol 3, CUP 2000) 1025, notably the biblical references to the Egyptian scales of justice at 1045. In addition, the Wisdom of Amenemopet was translated into Hebrew, read by Hebrews and influenced the writing of the Old Testament: Breasted (n 72 above) 322.
113 According to Breasted, the pharaoh instructed the vizier that his duty was "not to show respect of persons", words nearly identical to Moses' instructions: ibid 342–3.
114 Wolfgang Boochs, Altägyptisches Zivilrecht (Academia Verlag 1999) 13, cited in Glenn (n 56 above) 93, n 2, see also n 72 above and Griffiths (n 112 above). The scales of justice also appear in the Tale of the Eloquent Peasant.
115 In the Tale of the Eloquent Peasant, Khunanup draws an analogy between the judge and the scales of justice, imploring the judge to maintain a fair and true balance.
116 Patricia Stablein and Paul Wilson (eds), Hobbes's 'Historia Ecclesiastica' (Honoré Champion 2008).
117 Ibid lines 219–20.
118 Ibid lines 227–8.
119 Thomas Hobbes, Leviathan (first published 1651, Dover 2006).
120 Geoffrey M. Vaughan, Behemoth Teaches Leviathan: Thomas Hobbes on Political Education (Lexington 2002) 16.
123 The usage of the masculine pronoun in this section is for the purpose of integration with the original text of the Leviathan, but should be read as including all persons.
124 Hobbes (n 119 above) 72.
126 Ibid 71.
143 This is why the Leviathan must be created to enforce the social contract between men in the state of nature: ibid 76.
147 A third party in this context includes multiple persons, for example a group of individuals such as a jury.
148 Hobbes (n 119 above) 87. Emphasis added.
150 Hobbes recognises as much when he writes that judges exhibiting partial affections dissuade men from bringing their controversies before an arbiter. Such judges are responsible for a return to the condition of war: ibid 86. The decision-maker must be accepted by all parties to the dispute as a genuine third party, in the sense that he is unconnected to the subject matter or the parties involved. Because ending disputes is in the best interest of all members of society, the state creates and maintains institutions to provide access to justice. It is likely that other barriers to third party adjudication, particularly complexity and cost, may also play a role in dissuading individuals from submitting their controversies for adjudication.
151 An ongoing dispute, such as an intergenerational blood feud, can be as destructive of a peaceful society as a dispute ended by one of the parties by violence. According to Hobbes, the state of war is liable to return where men fail to bring their controversies to an arbiter. Without an impartial decision-maker, a dispute cannot be settled except for in the condition of war: ibid.
153 Of course, this situation would return the dispute to an impasse that could only be resolved by conquest. Hobbes writes that "no man is a fit Arbitrator in his own cause: and if he were never so fit; yet Equity allowing to each party equall benefit, if one be admitted to be Judge, the other is to be admitted also; & so the controversie, that is, the cause of War, remains, against the Law of Nature": ibid.
154 Impartial adjudication derives from the arbiter's status as a third party to the dispute, affording legitimacy to the decision: ibid 86.
156 Oxford English Dictionary (online ed) 'innate' accessed 20 September 2015.
157 Oxford English Dictionary (online ed) 'impartiality' accessed 20 September 2015.
158 Benjamin Cardozo, The Nature of the Judicial Process (Yale University Press 1921) 176. Discussed in Russell (n 10) 87.
159 Oxford English Dictionary (online ed) 'partial' accessed 20 September 2015.
160 Cardozo (n 158 above).
163 Rochin v California 342 US 165 (1952).
164 Ibid 171–2.
166 Martha Minow, 'Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors' (1992) 33 W&M LR 1201, 1217 cited in Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General) 2015 SCC 25 [34].
167 Minow, ibid.
168 Aharon Barak, The Judge in a Democracy (Princeton University press 2006) 103–4 cited in Yukon Francophone School Board (n 166 above) [36].
169 Breasted (n 83 above) 665–8.
171 The same is also true for one level or branch of the state against another.
172 See Russell (n 3 above) 10.
173 See John Bell, Judiciaries Within Europe: A Comparative Review (CUP 2010).
174 John M. Williams, 'Judicial Independence in Australia' in Russell and O'Brien (n 3 above) 181.
175 Confidence is necessary for courts to effectively perform adjudicative functions. See Shimon Shetreet, 'The Critical Challenge of Judicial Independence in Israel' in Russell and O'Brien ibid 239.
176 Russell points out that the rationale of judicial independence is key to knowing the appropriate degree of independence. See Russell (n 3 above) 3–4, 9.
177 The reasonable person from the community includes both subjective and objective elements. The variation of judicial independence among different states is recognised by Russell who writes, "One of the most interesting findings in comparative research may well be variation in the relationships that are perceived to have the greatest bearing on judicial independence in different states": ibid 4.
178 While there are some commonalities in the identification of threats to adjudicative impartiality in democratic states, the points of interaction between the judiciary and actual and potential sources of improper influence that are seen as problematic may vary significantly. See Russell and O'Brien (n 3 above) for a collection of essays describing judicial independence in the United States, Japan, Russia, states in post-communist Central and Eastern Europe, Germany, England, Australia, South Africa, Israel and Central America.
180 See eg, Donald P. Kommers, 'Autonomy versus Accountability: The German Judiciary' in Russell and O'Brien (n 3 above) 137, 139.
181 The Canadian Judicial Council advises judges that they must cease all political activity when they are appointed and "refrain from conduct that, in the mind of a reasonable, fair minded and informed person, could give rise to the appearance that the judge is engaged in political activity." The Council specifically requires judges to refrain from various political activities such as membership in political parties, political fundraising, attending political gatherings and events or contributing to political parties. See Canadian Judicial Council, 'Ethical Principles for Judges' (Canadian Judicial Council 2004) 28–9.
182 Russell writes that since impartial minds cannot be manufactured, arrangements must be made to increase the separation between judges and others: Russell (n 3 above) 8.
183 Wilson (n 84 above) 120–3.
185 Jurisdiction is used in a broad sense, including both the types of cases heard and the judicial function. The role of the judiciary has become increasingly contentious in modern liberal democracies where courts have taken on more of a political role by making decisions between among interests with implications for public policy. This new role of the court has created tension between judicial independence and accountability.
186 Russell notes that measures of judicial independence cannot cover all of the connections between the judiciary and others: Russell (n 3 above) 12.
187 Ibid 2. Footnotes omitted.
188 See eg, AE Dick Howard, 'Judicial Independence in Post-Communist Central and Eastern Europe' in Russell and O'Brien (n 3 above) 89.
189 See eg, Andrew Petter, The Politics of the Charter (University of Toronto Press 2010) who observes that judicial recruitment takes places from within a small group of affluent middle-aged lawyers. The homogeneity of the bench creates a difficulty in understanding the economically and socially disadvantaged. Petter concludes that democratic process is better positioned to reflect these interests, pointing to a legislative record of public interest initiatives.
190 United Nations, Universal Declaration of Human Rights adopted by the United Nations General Assembly resolution 217 A (III) of 10 December 1948, art 10 accessed 20 September 2015.
191 United Nations, International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976 in accordance with Article 49, art 14 accessed 20 September 2015.
192 Ibid art 14.
193 Organization of American States, American Declaration of the Rights and Duties of Man, adopted by the Ninth Conference of American States in Bogota, Columbia 1948, art 26 accessed 20 September 2015: "Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment."
194 Council of Europe, European Convention on Human Rights, adopted by the Members of the Council of Europe in Rome on 4 November 1950, art 6(1) accessed 20 September 2015: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…".
195 Organization of American States, American Convention on Human Rights, agreed to at the Inter-American Specialized Conference on Human Rights in San Josi, Costa Rica on 22 November 1969, art 8 accessed 20 September 2015: "Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature."
196 African Commission on Human and Peoples' Rights, African Charter on Human and Peoples' Rights, adopted 27 June 1981, in force 21 October 1986, art 7(1) accessed 20 September 2015: "Every individual shall have the right to have his cause heard. This comprises: … (d) the right to be tried within a reasonable time by an impartial court or tribunal."
197 The preamble to the Principles states:
Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law,
Whereas the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and in addition, the Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay…
199 Russell concludes that the Principles are unrealistic. See Russell (n 3 above) 12.
200 Basic Principles (n 4 above) art 2.
201 Ibid art 3.
204 The Queen v Beauregard [1986] 2 SCR 56.
205 Ibid [25].
206 Ian Binnie, 'Judicial Independence in Canada' accessed 20 September 2015.
207 Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
208 The Constitution Act, 1867 (UK), 30 & 31 Vict, c 3.
209 Ibid ss 99, 100.
210 Valente v R [1985] 2 SCR 673.
211 Ibid 686, 691.
215 Ibid 685, 687, 689.
218 The Queen v Beauregard (n 204 above) [21].
222 MacKeigan v Hickman [1989] 2 SCR 796.
224 R v Lippé [1991] 2 SCR 114.
226 Ibid 137–8, 152–3.
227 Provincial Judges Reference (n 6) [8].
228 Ibid [9].
234 Ibid [94]–[104]. The relevant part of the preamble states:
Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom…
235 Ibid [104].
236 Ibid [83], [109].
240 Ibid [167]. Though Lamer sets out detailed guidelines for the creation of the commissions. See ibid [169]–[185], [287].
241 Ibid [133]. Lamer writes that where the government singles out judges in a pay cut, the justification required for departing from the judicial remuneration commission's will be "heavy".
256 Provincial Court Judges Association of New Brunswick v New Brunswick (Minister of Justice) 2005 SCC 44.
259 Ibid [25]–[27].
260 Ibid [122]. See also Ell v Alberta, 2003 SCC 35 [17]–[27]. Notably, the Supreme Court of Canada did not extend judicial independence protections to members of administrative bodies in Ocean Port Hotel v British Columbia, 2001 SCC 52.
261 Provincial Court Judges' Association of British Columbia v British Columbia, 2015 BCCA 136 [37].
264 Ibid [88] f.
266 Mackin v New Brunswick (Minister of Finance) [2002] 1 SCR 405.
270 Ontario v Criminal Lawyers' Association of Ontario 2013 SCC 43.
271 Ibid [40] citing Provincial Judges Reference (n 6 above) [117].
272 Ontario v Criminal Lawyers' Association of Ontario ibid [80].
275 Olivia Carville, 'Taxpayers Billed for Guilty Justices' Legal Fees' Toronto Star (Toronto, 20 November 2014) accessed 20 September 2015.
277 British Columbia v Imperial Tobacco Canada Ltd 2005 SCC 49.
281 Reilly v Walter 2006 ABQB 383.
282 Donald Frederick Angevine v Ontario 2011 ONSC 4523.
283 Ibid [12f.]
284 Alderon Iron Ore Corporation v Cabana 2015 NLTD(G) 84.
285 Minister of Justice and Attorney General (British Columbia), 'Modernizing British Columbia's Justice System' (February 2012) accessed 20 September 2015.
286 Ibid 2.
288 Ibid 16. Emphasis added.
289 Lance Finch, Robert Bauman, and Thomas Crabtree, 'Judicial Independence (And What Everyone Should Know About It)' (15 March 2012) accessed 20 September 2015.
294 Ibid 3 drawing from Valente v R (n 210 above).
295 Ibid 3, 5.
298 D Geoffrey Cowper, 'A Criminal Justice System for the 21st Century' (27 August 2012) accessed 20 September 2015.
306 See Minister of Justice and Attorney General (British Columbia), 'White Paper on Justice Reform: Part One: A Modern, Transparent Justice System' (October 2012) accessed 20 September 2015 and Minister of Justice and Attorney General (British Columbia), 'White Paper on Justice Reform: Part Two: A Timely, Balanced Justice System' (February 2013) accessed 20 September 2015.
310 Valente v R (n 210 above) 689.
311 R v Lippé (n 224 above ) 139.
312 Provincial Judges Reference (n 6 above) [10].
313 Committee for Justice and Liberty v National Energy Board [1978] 1 SCR 369, 394, per Justice de Grandpré (dissenting), affirmed most recently by the Supreme Court of Canada in Yukon Francophone School Board (n 166 above) [20] where the test was referred to by the unanimous Court as "undisputed".
314 Yukon Francophone School Board ibid.
316 Provincial Judges Reference (n 6 above) [186].
317 In Canada, this assistance to the court is often provided by interveners. See, eg, Ian Brodie, Friends of the Court: The Privileging of Interest Group Litigants in Canada (State University of New York 2002) and Benjamin R.D. Alarie and Andrew J. Green, 'Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance' (2010) 48 Osgoode Hall LJ 381. For the developing picture of interveners at the Supreme Court of the United Kingdom, see Lorne Neudorf 'Intervention at the UK Supreme Court' (2013) 2(1) Cambridge Journal of International and Comparative Law 16.
318 Peter Hogg, 'The Bad Idea of Unwritten Constitutional Principles' presentation to the Looking Back, Looking Forward: Judicial Independence in Canada and the World conference, 30 November 2007 accessed 20 September 2015.
320 Ref re Remuneration of Judges of Prov Court of PEI ("Provincial Judges Reference (No 2)") [1998] 1 SCR 3.
324 Provincial Judges Reference (n 6 above) [8].
325 Graham Gee, Robert Hazell, Kate Malleson and Patrick O'Brien, The Politics of Judicial Independence in the UK's Changing Constitution (CUP 2015), back cover.
326 MacKeigan v Hickman (n 222 above) 827–8.
327 See Lorne Neudorf, 'The Supreme Court and the New Judicial Independence' 1(2) Cambridge Journal of International and Comparative Law 25.
328 Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law & Politics (2d ed, OUP 2014) and Peter W. Hogg, Constitutional Law of Canada (vol 1, 5th edn, Thomson Carswell 2007) 1-21 to 1-30, 9-3.
329 Provincial Judges Reference (n 6) [141].
330 Heard (n 328) 189–93.
331 Ibid and Ministry of the Attorney General (Ontario), 'Sub Judice Rule' accessed 20 September 2015.
332 See, eg, Jean Leclair, 'Canada's Unfathomable Unwritten Constitutional Principles' (2002) 27 Queen's LJ 389, Jean Leclair and Yves-Marie Morissette, 'L'indépendance judiciaire et la Cour suprême: reconstruction historique douteuse et théorie constitutionnelle de complaisance' (1998) 36 Osgoode Hall LJ 485 and Hogg (n 318 above).
333 See, eg, Sylvia LeRoy, 'Judicial Independence and the Integrity of the Judiciary', (August 2004) Fraser Forum 3.
336 Michael Plaxton, 'In Search of Prophylactic Rules' (2005) 50 McGill LJ 127.
337 Ibid 130–2, 138–43.
340 Miranda v Arizona (1966) 384 US 436.
341 Plaxton (n 336) 143. Footnotes omitted.
342 For further academic discussion of prophylactic rules, see David A Strauss, 'The Ubiquity of Prophylactic Rules' (1988) 55 The University of Chicago LR 190, Evan H Caminker, 'Miranda and Some Puzzles of "Prophylactic" Rules' (2001) 70 The University of Cincinnati LR 1, Susan R Klein, 'Identifying and (Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure' (2001) 99 Michigan LR 1030, and Brian K Landsberg, 'Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules' (1999) 66 Tennessee LR 925.
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