Revista Forumul judecatorilor nr 2 2011

28 Revista Forumul Judecãtorilor – Nr. 2/2012

Judicial Independence:Judicial Independence:Judicial Independence:Judicial Independence:Judicial Independence:The Judge as a Third Party

to the DisputeLorne Neudorf,

Faculty of Law, Institute of Comparative Law,McGill University, Montreal

Abstract:In this thesis, the author sets out a conceptual framework for judicial independence.

From the starting point of adjudication as the basic function of the judiciary, the authorembarks on an historical inquiry to shed light on the judicial determination of disputes.This inquiry reveals an ancient tradition of adjudicative impartiality stretching back toancient Egypt. This tradition of impartiality is the unifying theme in Hobbes’ theory oflaw. In the state of nature, each person possesses complete liberty. In order to enterinto a peaceful society, persons must give up the right to decide their own disputes.Since persons can no longer act as their own judges, a third party must resolve legalconflict. Given this understanding, the author proposes the perception of impartialityas the fundamental rationale of judicial independence. Judicial independence createsthe necessary space between judges and potential sources of undue influence topreserve the status of the judge as an impartial third party to the dispute. Finally, theauthor critiques the doctrine of judicial independence in Canadian law from theperspective of this conceptual framework.

Abstrait:Dans cette thèse, l’auteur établit un cadre conceptuel pour l’indépendance judiciaire.

Du point de départ de la resolution des disputes comme la fonction de base du systèmejudiciaire, l’auteur se lance dans une enquête historique afin d’illuminer le processusde la détermination juridique des disputes. Cette enquête révèle une ancienne traditiond’impartialité judiciarie qui remonte à l’Égypte antique. Cette tradition de l’impartialitéest le thème unificateur dans la théorie du droit de Hobbes. Dans l’état de la nature,chaque personne possède une liberté totale. Afin de creer une société pacifique, lespersonnes doivent renoncer au droit de juger leurs propres disputes. Du fait que lespersonnes ne puissent plus agir comme leur propres juges, il faut une tierce partiepour résoudre les conflits. L’auteur propose que c’est la necessité que cet “autre” soitperçu comme impartiel par les parties au dispute qui est le fondement del’indépendance judiciaire. L’indépendance de la justice crée une espace entre lesjuges et les sources d’influence afin de préserver le statut du juge comme une tiercepartie au dispute. Enfin, l’auteur critique la doctrine de l’indépendance judiciaire dansle droit canadien dans la perspective de ce cadre conceptuel.

Rezumat:În aceastã lucrare, autorul stabileºte un cadru pentru noþiunea de independenþa a

justiþiei. Plecând de la ideea cã soluþionare a litigiilor ar fi funcþia de bazã a sistemului

Revista Forumul Judecãtorilor – Nr. 2/2012 29

judiciar, autorul porneºte într-o anchetã istoricã pentru a clarifica procesul desoluþionare a diferendelor juridice. Cercetarea indicã o tradiþie veche a imparþialitãþiijudecãtoreºti datând încã din Egiptul antic. Aceastã tradiþie a imparþialitãþii este temaunificatoare în teoria juridicã a lui Hobbes. În starea sa naturalã, fiecare persoanã arelibertate totalã. Pentru a crea o societate paºnicã, persoanele fizice trebuie sã renunþela dreptul de a-ºi face singure dreptate. Deoarece oamenii nu mai pot acþiona încalitate de judecãtori proprii, avem nevoie de o terþã parte pentru a rezolva conflictele.Autorul aratã cã necesitatea ca acest terþ sã fie perceput ca imparþial de pãrþile înlitigiu este fundamentul independenþei judecãtoreºti. Independenþa sistemului judiciarcreeazã un spaþiu între judecãtori ºi potenþialele surse de influenþã cu scopul de apãstra statutul de judecãtor, ca terþ imparþial în litigiu. În cele din urmã, autorul criticãdoctrina independenþei judecãtoreºti în sistemul canadian din perspectiva acestuicadru conceptual.

Keywords: judicial independence, magistracy, impartiality, Canadian law

[I]t is certainthat when publicjudicatories areswayed, either byavarice or partialaffections, theremust follow adissolution ofjustice, the chiefsinew of society.

Sir Thomas More, Utopia (1516)

INTRODUCTIONJudicial independence has many

friends and defenders. Judges claim topossess and jealously guard it, statesfrom a wide range of legal traditionsguarantee it in their fundamental laws andpolitical scientists exalt it as the hallmarkof liberal democracy. Support for judicialindependence extends far beyond theborders of individual states as well; it hasbecome an international obsession.Observers evaluate and comparativelyrank state judiciaries on an “indepen-dence index”, used by a variety oforganizations to target indepen-dence-enhancing reform projects.24

Acknowledgments

I would like to acknowledge my advisorProfessor Evan Fox Decent, of McGill’s

Institute of Comparative Law, for hisguidance and encouragement, parti-cularly with respect to my interest inpolitical theory. I would also like to thankProfessor Peter Russell who was kindenough to allow me to discuss my ideaswith him, Professor John Borrows andDean Andrew Petter, of the University ofVictoria, for sparking my academicinterest in the judiciary, and Professor H.Patrick Glenn, of McGill’s Institute ofComparative Law, for his suggestions andexamination of my thesis. The translationof the abstract from English into Frenchis thanks to Rodney MacDonald. Finally,I am very grateful for the suggestions ofpatient colleagues and friends upon whomI inflicted earlier drafts and ideas. I wouldalso like to acknowledge the generousfinancial support of my research projectfrom the Law Foundation of BritishColumbia, the Law Society of BritishColumbia, the Social Sciences andHumanities Research Council of Canadaand McGill University, Faculty of Law.

24 See, i.e. Transparency International: TheGlobal Coalition Against Corruption, online: <http:/

/www.transparency.org/publications/gcr>.


Perhaps the most telling example of thedeeply rooted reverence for judicialindependence was the internationalcommunity’s reaction to the suspensionof Pakistani judges by the state’sexecutive in late 2007.25

Yet, despite its popular support, theconcept of judicial independence remainselusive. Little has been written on whatan independent judiciary actually meansor why one is so desirable. Commentatorshave become increasingly vocal inlamenting this lack of clarity: one de-scribes judicial independence as under-theorized in a theory-drenched age whileanother portrays the world of liberaldemocracy eagerly anticipating a generaltheory.26 But what would a theoreticalunderstanding of judicial independenceaccomplish? A satisfactory theory wouldprovide a basic structure from withinwhich further research and discussioncould take place. It would identify therationale of an independent judiciary andunearth its key elements. Although ageneral theory is unlikely to solveconcrete problems, it would demonstratethe degree of independence that isdesirable and provide a yardstick tomeasure the effectiveness of actionstaken to enhance judicial independence.

The present theoretical state of judicialindependence is hardly satisfactory when

assessed by these ambitions. Judicialindependence remains hopelesslyentangled with other ideas, locked in anawkward embrace with concepts thatprovide scant clarification of its essentialcharacter: justice, fairness, impartiality,corruption, bias, separation of powers andthe rule of law, to name but a few.Scholarship on judicial independence isalmost entirely parochial, steeped indoctrine gleaned from specific cases inparticular legal traditions. On the rareoccasion where judicial independence isconsidered more broadly, the role of thejudge becomes a chimera. The UnitedNations? Basic Principles on theIndependence of the Judiciary illustratesthis approach by establishing the generalprinciple that judges must be free from“any restrictions, improper influences,inducements, pressures, threats orinterferences, direct or indirect, from anyquarter or for any reason.”27 While settingout a starting point for the concept ofjudicial independence, this view fails todefine the practical requirements of anindependent judiciary.

Chapter 1 addresses this confusedtheoretical state by setting out aconceptual framework for judicialindependence. The search for thetheoretical underpinnings of indepen-dence begins with an often-neglected

25 President Musharraf’s suspension of judgesin late 2007 sparked protests by lawyer associationsboth inside and outside of Pakistan, in addition tocondemnation by numerous states. See, i.e. JanePerlez & David Rohde, “Pakistan Attempts to CrushProtests by Lawyers” The New York Times (6November 2007), online: New York Times <http://www.nyt imes.com/2007/11/06/wor ld/asia/06pakistan.html>.

26 Graham Gee, “The Politics of JudicialIndependence in a British-style Constitution”(Lecture to the Looking Back, Looking Forward:Judicial Independence in Canada and the WorldConference, 30 November 2007), online: Universityof Toronto <http://www.law-lib.utoronto.ca/conferences/judicial_independence/index.htm> and

Peter H. Russell, “Toward a General Theory ofJudicial Independence” in Peter H. Russell & DavidM. O’Brien, eds.., Judicial Independence in the Ageof Democracy: Critical Perspectives From Aroundthe World (Charlottesville, Virginia: University Pressof Virginia, 2000) at 1, respectively. See Russell at1-6 for an overview of the expectations of a generaltheory of judicial independence.

27 Basic Principles on the Independence of theJudiciary, adopted at the Seventh United NationsCongress on the Prevention of Crime and theTreatment of Offenders held in Milan in 1985,endorsed by General Assembly resolutions 40/32and 40/146 (New York: United Nations Departmentof Public Information, 1988) art. 2.


historical inquiry into the adjudication ofdisputes. Early history reveals the dawnof a tradition of impartiality in ancientEgypt, now a core principle of westernlegal traditions. Understanding thedevelopment of impartiality in ancientEgypt helps to explain impartiality as thefoundation of judicial independence.Hobbesian social contract theory furtherconfirms the importance of impartiality toadjudication. In order to escape the stateof nature, men enter into an agreementto maintain peaceful relations. This socialcontract requires them to give up certainliberties that they previously enjoyed. Oneliberty that must be divested is the rightfor a man to judge his own disputes. Thirdparty adjudication to resolve conflicts overrights and entitlements becomesnecessary when parties can no longerdecide their own cases.28 Decision-makers showing partiality lose theirlegitimacy since they no longer act as thirdparties to the dispute. As a state of mind,impartiality provides a legitimizing forcefor third party adjudication. However,given the difficulty of finding anadjudicator with a “view from nowhere”29

and the impossibility of assessingimpartiality in a human mind, a perceptionof impartiality supplies the necessarylegitimacy. As the best human institutionscan achieve, the perception of impartialitypromotes confidence in third partyadjudication when held by the litigants andthe community.

While considering the concept ofjudicial independence, the internationalcommunity adopts an unqualified view

that sets out a general principle thatjudges are to possess complete freedomfrom all sources of influence in decidingcases.30 This view neglects to answerseveral key questions about judicialindependence and the practical meaningof independence remains unclear. Ifinterpreted as a norm requiring absoluteindependence, unqualified independencewould require an isolated judiciary. Evenif seen as a principle that must be weighedagainst other principles, questions ariseconcerning the balance necessary toensure sufficient judicial independence.In addition, unqualified independenceleaves its rationale unstated, resulting ina lack of interpretive guidance. In orderto maintain the perception of impartiality,the judiciary must be seen as independentfrom sources of undue influence. Theperception of impartiality develops thecontours of judicial independence bydetermining the extent to which measuresof independence are necessary. Theminimum degree of judicial independenceis satisfied when litigants and the

28 Included in the phrase “rights andentitlements” is the right of persons to ascertainwhether rules created by the society have beenviolated, thus encompassing both private and publiclaw.

29 This phrase is borrowed from Thomas Nagel,The View From Nowhere (New York: OxfordUniversity Press Inc., 1986), and in this contextmeans an adjudicator devoid of any predeterminedopinion or perspective. While modern social

contractarians, particularly John Rawls? highlyabstract veil of ignorance, share the Kantian viewthat persons are capable of assessing principlesfrom an impartial and objective viewpoint, theproposition that individual judges, working within aparticular legal tradition and applying sources of lawto specific facts, can maintain an objective viewstretches impartiality far beyond its breaking point.

30 See i.e., the absolutist perspective of theUnited Nations, supra note 4.

Judicial independence createsthe necessary space between

judges and potential sources ofundue influence to preserve the

status of the judge as animpartial third party to the

dispute.


community perceive adjudicative insti-tutions as impartial. In other words, thejudiciary possesses the requisite inde-pendence when a reasonable observerfrom the community would, as a potentiallitigant in a legal dispute, presumeadjudicative impartiality. This presump-tion of impartiality is context-dependent.Judiciaries enjoying long-establishedtraditions of the community’s confidence,arising from a history of just decisions,require less formal protection than thosein emerging democracies or those whosemembers are known to be corrupt.Presumptions of impartiality vary instrength, but can be easily destroyed byinformation that suggests bias in a specificcase. Where a reasonable observer failsto hold a presumption of impartiality,increased measures of judicial inde-pendence become necessary to maintainconfidence in the judiciary.

Measures directed at enhancingjudicial independence limit opportunitiesfor undue influence by defining theappropriate relationships between judges,both individually and collectively, andothers. However, these measures cannoteliminate all possible sources of influence.Judges enjoying robust guarantees oftheir independence, such as tenure andnon-diminutive salaries, can still beinfluenced or hold personal biasesresulting in decisions based on improperconsiderations. This prospect is simplyunavoidable; it exists even under the viewof judicial independence as unqualified.31

Instead of attempting to remove allsources of influence, measures of judicialindependence regulate the relationships

between judges and others where undueinfluence is most likely to arise. Definingthe boundaries of these relationshipsprovides grounds for litigants and thegeneral community to presume impar-tiality, fostering confidence in judges asthird party adjudicators.

The growth of judicial power in manyliberal democracies has raised importantnew questions about judicial inde-pendence and the extent to which it mayundermine democratic principles. Thereis no easy resolution to this tension. Onone hand, it is argued that judiciariesreviewing the actions of the otherbranches of government requireincreased independence to maintain theperception of impartiality. Without a clearseparation of the judiciary and thelegislative and executive branches,litigants may perceive the judiciary asbeing in the pocket of the other branches.The separation of the judiciary from otherconstitutional actors is also necessary infederal states where judges resolvedisputes between the various levels ofgovernments. On the other hand, advo-cates of accountability claim thatinstitutions deciding between competinginterests in matters of public policy requirea democratic mandate in order to pre-serve their legitimacy. The compromisestruck in states facing this conflictrepresents the relative values assignedto the liberal concept of judicial inde-pendence and the democratic principle ofaccountability. Chapter 2 takes theconceptual framework established inChapter 1 and applies it to the doctrine ofjudicial independence in Canadian law.

31 Given that there is no judicial “view fromnowhere”, supra note 6, a judge enjoying freedomfrom any potential source of influence would stillpossess internal views. While judges may be ableto challenge their personal biases sufficiently tokeep an open mind, the risk of bias tainting thedecision-making process cannot be overcome bycomplete judicial freedom. Whether actual bias

exists depends upon the character of the individualjudge and his or her capacity to set aside personalbiases that arose from life experiences. Becausesetting aside such biases is based on one’scharacter, there does not appear to be anynecessary connection between completeindependence and the ability to fairly consider otherperspectives.


The enactment of a constitutionallyentrenched bill of rights in 1982 throughthe Charter of Rights and Freedomssignificantly expanded the power of theCanadian court. Specific measuresproviding for the separation of the judi-ciary from the influence of the legislativeand executive branches appear in the textof the Constitution Acts, but a generalprinciple of judicial independence hasbecome a deeply rooted tradition.

In the 1997 landmark case of Provin-cial Judges Reference32, the SupremeCourt of Canada recognized judicialindependence as an unwritten consti-tutional principle. The case arose whenthe governments of three provincesreduced the salaries of provincial judgesas part of economic measures to limitbudget expenditures. In one of theseprovinces, the executive negotiatedjudicial remuneration with the judgesassociation. The Court found that theunwritten principle of judicial indepen-dence prevented any direct salarynegotiations between the judiciary and theother branches of government. Instead,the Constitution demanded the creationof “independent, objective and effective”compensation commissions to depoli-ticize judicial remuneration.33 Accordingto the Court, governments must firstconsult with non-binding compensationcommissions before tinkering with judicialsalaries. Since the provincial gover-nments did not consult these commi-ssions, the Court struck down the judicialsalary reductions as a violation of judicialindependence.

The Provincial Judges Reference caseis extraordinary in Canadian law forseveral reasons. First, the Supreme Court

of Canada’s characterization of judicialindependence as an unwritten consti-tutional principle, extending to all judgesand capable of invalidating deliberativepolitical action, unleashed an unpre-cedented storm of academic criticism.This criticism attacked the justiciability ofan unwritten constitution, the interpre-tation of constitutional texts as subor-dinate to unwritten principles and theCourt’s so-called activism. Second, theCourt muddied the doctrinal waters ofjudicial independence by invoking theprinciple in a case where the perceptionof impartiality was not impaired by anacross-the-board public service salarycut. The provincial judges never arguedthat their reduced salaries fell below athreshold where they would considertaking bribes from litigants. Since allpublic sector workers faced the samesalary reductions as the judges, it isdoubtful that the action by the provincialgovernments would prevent a reasonableobserver from presuming adjudicativeimpartiality. Faced with the difficulty ofarticulating how impartiality wasthreatened, the Court made desperateattempts to explain the necessity of theindependent compensation commissionprocess. The Court held that the absenceof a salary recommendation from anindependent commission would causelitigants to perceive judicial bias in favourof the government. This could have theeffect of reducing the community’sconfidence in the judiciary. However, itseems implausible that a reasonableobserver would expect provincial judgesto start convicting innocent persons inorder to obtain trivial and speculativebenefits at the bargaining table.34 In

32 Reference Re Remuneration of Judges ofthe Provincial Court of Prince Edward Island, [1997]3 S.C.R. 3, 150 D.L.R. (4th) 577 [Provincial JudgesReference cited to S.C.R.].

33 Ibid. at para. 169.34 This argument is advanced forcefully by

Professor Hogg. See Peter Hogg, “The Bad Idea of

Unwritten Constitutional Principles” (Lecture to theLooking Back, Looking Forward: JudicialIndependence in Canada and the WorldConference, 30 November 2007), online: Universityof Toronto <http://www.law- lib.utoronto.ca/conferences/judicial_ independence/index.htm>.


addition to these problems presented bythe Provincial Judges Reference case,the result of the decision may para-doxically result in diminished judicialindependence. Possessed with juris-diction only when petitioned by litigants,judicial institutions are incapable ofissuing timely responses to acute attackson their independence. The judiciarynecessarily relies on others, notably thelegislative and executive branches, toprotect its interests. Moreover, thesenon-judicial branches of government areresponsible to enact specific guaranteesof judicial independence, such as tenureand non-diminutive salaries. The Court’sfailure to acknowledge the essential roleof the legislative and executive branchesin initiating and preserving measures ofjudicial independence sends the messagethat the courts are fully capable of lookingafter themselves. After the ProvincialJudges Reference case, the legislativeand executive branches of governmentmay be wary of taking action touchingupon the judiciary, particularly since suchaction is liable to be held unconstitutionaleven when it poses no threat to theperception of impartiality.

Compounding the prospect of a retreatby the legislative and executive branchesfrom their legitimate role in judicial affairsis the lack of predictive certainty inCanadian law. The unwritten consti-tutional principle of judicial independenceis slippery and amorphous; the case lawreveals no coherent standard by whichto assess conduct beforehand. Whilepredictability is a long-establishedprinciple of the rule of law, the stakes areconsiderably higher given the vitalinteraction between the primary organsof the state. These interactions lose theirdynamic character when patrolled by a

judiciary that defines the limits of its ownsupervisory power. The prospect of expost facto legal review of this interactionis especially ill suited in the Canadiancontext, where informal conventionsregulate the relations between con-stitutional actors. The legislative andexecutive branches now face theunenviable task of ascertaining theirproper role vis-à-vis the judiciary underan uncertain constitutional scheme. Achilling effect on deliberative actionnecessary to protect and enhance judicialindependence is likely to result.

However, the most troubling aspect ofthe Provincial Judges Reference case isthe lasting damage it inflicted on theperception of impartiality. Within a shortperiod of time after the implementation ofthe compensation commission process,the salaries of many provincial judgesincreased significantly.35 Most observerscharacterized the Court’s decision asgreedy and self-serving. These accu-sations stem from the perceived conflictof interest between the Court’s role as athird party adjudicator and the judicialbranch appearing as a litigant. Theresolution of a dispute by a decision-maker substantially aligned in perspectiveand interest with one of the parties erodeseven the most strongly held presumptionof impartiality. How could the opposingparties, in this case the legislative andexecutive branches, have confidence inthe impartiality of judges hearing a caseabout the financial compensation ofjudges? Even operating under the pre-sumption that the judges were impartialin fact, the obvious conflict of interest andthe substantial legal obligations imposedon the legislative and executive branchesin the Provincial Judges Reference casediminished confidence in adjudicativeimpartiality.

35 See Sylvia LeRoy, “Judicial Independenceand the Integrity of the Judiciary”, August 2004Fraser Forum 3.


Maintaining the link between judicialindependence and the perception ofimpartiality provides the means toovercome these problems. The SupremeCourt of Canada provided a brief glimmerof hope in the Provincial JudgesReference case by noting that one of thegoals of judicial independence “is themaintenance of public confidence in theimpartiality of the judiciary”. 36 However,the Court quickly forgot about thisconnection by getting lost in the creationof elaborate metaphors to articulate itsvision of judicial independence as part ofthe unwritten constitution.37 The effect ofthe decision in Provincial JudgesReference is a decoupling of judicialindependence with the perception ofimpartiality by treating judicial inde-pendence as the means to its own end.

Even if the Court maintains the linkbetween judicial independence and theperception of impartiality, it still faces anunavoidable conflict of interest in caseswhere the judicial branch appears as alitigant. While there does not appear tobe an ideal solution to this problem, courtscan temper a perception of bias in suchcases by creating a distinction betweenconstitutional rules. Specifically, theadoption of prophylactic rules in casespresenting obvious and unavoidableconflicts of interest, such as ProvincialJudges Reference, would go a long wayin shielding the judiciary from attacks onits legitimacy.38 Prophylactic rules arejudicially crafted directives to preventviolations of the constitution. Unlikeordinary constitutional rules, prophylacticdirectives are not mandatory where the

state devises an alternative method offulfilling its constitutional obligations.Prophylactic rules are just one of severalpossible strategies to achieve aconstitutional end, thus providing a rolefor non-judicial actors to fashion ways ofprotecting substantive constitutionalrequirements.39 Prophylactic rules arewell suited to the Canadian context asthey encourage dialogue and promoteinformal conventions to regulateinteraction between the branches ofgovernment.

For example, in Provincial JudgesReference, the Supreme Court of Canadafound that a compensation commissionwas the only constitutionally acceptablesolution to protect judicial indepen-dence.40 Had the Court treated thecompensation commission process as aprophylactic directive, it would haveinitiated a dialogue with the legislative andexecutive branches. These branches ofgovernment would then have to decidewhether to follow the Court’s directive orcome up with a different way of settingjudicial salaries that protected judicialindependence. By involving non-judicialconstitutional actors in the decision-making process, the perception of biasgenerated from the unavoidable conflictof interest would have been significantlyreduced. Furthermore, treating thecompensation commission process as aprophylactic directive would haverespected the role of the Court as theinterpreter of the Constitution, whileensuring space for creative complianceby the other branches of government.

36 Provincial Judges Reference, supra note 9at para. 10.

37 Ibid. at para. 109 where the Court writes thatjudicial independence flows through the “preamble,which serves as the grand entrance hall to the castleof the Constitution”.

38 See Michael Plaxton, “In Search ofProphylactic Rules” (2005) 50 McGill L.J. 127.

39 Ibid. at 130.40 Provincial Judges Reference, supra note 9

at para. 133 where a majority of the Court held that“[g]overnments are constitutionally bound to gothrough the commission process”.


CHAPTER 1: DEVELOPING ATHEORY OF JUDICIAL

INDEPENDENCE

I. PRELIMINARY MATTERS

This chapter sets out a framework forthe concept of judicial independencefounded on the core principle ofadjudication; however, it is important atthis preliminary stage to identify the scopeand limitations of this endeavour. Mostimportantly, this chapter does notadvance a full theory of judicialindependence. Instead, as the name ofthe chapter implies, the frameworkadvances toward an understanding ofjudicial independence by consideringissues and answering questions that anysatisfactory theory must address. Giventhat the framework does not present acomplete theoretical foundation, it will notbe able to answer all questions that mayarise in relation to judicial independence;however, such questions will presumablyprove more answerable in light of it.41

The goal of this chapter is to arrive ata framework that provides the key tounlocking the most significant problemsof judicial independence. Even if this goalis accomplished, one may find instanceswhere the framework does not work asexpected. For example, it may not holdtrue in states which place limitedemphasis on third party adjudication toresolve legal disputes. In addition, it ispossible that the framework will notadequately address problems arising fromits export to legal traditions considerablydifferent from those in western liberal

democracies, although there appears tobe no automatic reason for why this wouldbe the case. It is important to emphasizethat the framework should not be rejectedsimply because scenarios can beenvisioned where it would not work; thisresult is expected. Instead, the frameworkis valuable for the light it sheds on theconcept of judicial independence.42

It is useful at this stage to defineseveral keywords and reveal theassumptions necessary to understand theframework set out in this chapter. It is afundamental premise of this chapter thata peaceful society is a good that shouldbe strived for. A peaceful society refersto an association of persons whorecognize rules established by the societyas binding on themselves in their relationswith others, and generally comply withsuch rules.43 This chapter assumes thatpersons tend to act rationally and in theirself-interest, and that the pursuit ofself-interest inevitably leads to conflictwith others doing the same. Many kindsof conflicts are bound to arise; however,this chapter is especially concerned withdisputes containing a legal element. Legaldisputes involve persons who cannotagree on their conflicting rights andentitlements. This broad definitionincludes the determination of whether anindividual has violated societal rules, thusencapsulating both private and public law.Since persons are not always capable ofresolving their conflicts in ways thatpromote harmonious social relations, apeaceful society must maintain amechanism to decide disputes.44 Thejudiciary, established by the state as an

41 Professor Russell acknowledges that a theoryof judicial independence will not provide concreteanswers to questions that arise in specific casesbecause of complex normative issues and the lackof knowledge in how measures of independencewill affect its underlying motivation. See Russell,“Toward a General Theory of Judicial Indepen-dence”, supra note 3 at 4-5.

42 See ibid. at 5-6.

43 This definition inspired by John Rawls, ATheory of Justice, rev. ed. (Cambridge, MA: HarvardUniversity Press, 2005) at 4.

44 Arbitration and mediation play a significantrole in helping persons overcome disagreements,however for the purposes of this paper, theadjudication of legal disputes refers to conflicts thatcannot be settled by any other peaceful means.


institution to adjudicate legal disputes,fulfills this essential role.45

II. IMPARTIALITY AT THE HEARTOF ADJUDICATION

An inquiry into the concept of judicialindependence begins with the idea ofadjudication as the basic function of thejudiciary.46 Given that judges decide legaldisputes, what lies at the heart of theirdecision-making and what does it revealabout judicial independence? First, thissection considers adjudication in itshistorical context by examining theoften-neglected ancient origins ofdecision-making with the aim of sheddinglight on the concept of judicial inde-pendence. Second, the application of theHobbesian social contract to the processof adjudication discloses the status of ajudge as a third party to the dispute.

The early history of judging de-monstrates the development of a traditionof impartiality in ancient Egypt, now a coreprinciple of western legal traditions.Although legal scholars often overlook adetailed examination of the origins ofadjudication, the context of nascent ideashas the potential to illuminate contem-porary understandings. Comparing thedevelopment of historical traditions topresent conceptions provides a startingpoint to discover the rationale of legalprinciples. Numerous primary sourcesdescribe the importance of impartiality toancient Egyptian judges. These judgesboasted about their fairness, while thoseaccepting bribes or favouring certaininterests were liable to harsh punishmentfor betraying confidence in the judicial

system. Ancient Egyptians fostered thistradition of impartiality over thousands ofyears to the extent that it became a fixtureof contemporary conceptions ofadjudication. Understanding the birth ofimpartiality in ancient Egypt helps toexplain impartiality as the object of judicialindependence today. Hobbesian socialcontract theory confirms the importanceof impartiality to the adjudicative process.In a hypothetical state of nature, menenter into a social contract with the aimof establishing a peaceful society. Thisagreement requires men to give up certainliberties in the interest of peace, includingthe right to judge their controversies.Since men can no longer decide their owndisputes, a third party must resolveconflict. In order to maintain legitimacy,these decision-makers must uphold theirstatus as true third parties. Adjudicatorswith an interest in the outcome of the caselack legitimacy to decide the case sincethey are no longer third parties to thedispute.

A. THE DAWN OF IMPARTIALITYPrimary sources, many recently

accessible because of advancements inlinguistics and archeology, disclose thedevelopment of a tradition of adjudicativeimpartiality in ancient Egypt. Theimportance attached to judicial fairnessby the ancient Egyptians gave rise toimpartiality as a core principle of westernlegal traditions. This origin of impartialityprovides a valuable foundation for theconsideration of impartiality as therationale of judicial independence.

In the first chapter of Legal Traditionsof the World, Professor Glenn sets out a

45 Of course, judiciaries in most states tend toperform many more functions than adjudication, butfor the purposes of this chapter adjudication isexplored as the basic function of judicial institutions.Furthermore, Professor Russell’s theory that thejudiciary refers to any officials who performadjudication must be considered in order to prevent

the state from transferring adjudicative functions toothers who do not receive the same protections asmember of the formal judiciary. See Russell, supranote 3 at 8-9.

46 See Peter H. Russell, The Judiciary inCanada: The Third Branch of Government (Toronto:McGraw-Hill Ryerson Limited, 1987) at 5-10.


theory of tradition.47 Glenn’s starting pointis one presumably familiar to most of hisreaders: a description of the westernworld’s concept of tradition. The westernworld sees tradition as an outdated wayof doing things; tradition is a way for thepast to control the present, best avoidedby rational thinking.48 Instead of thinkingfor themselves, adherents to traditionallow the past to make decisions for them.Glenn argues that the westernperspective on tradition is problematicsince it fails to take into account thatthinking rationally about tradition is itselfa tradition.49

Glenn writes that the evaluation of onetradition through the logic of another isliable to produce biased results, andexpresses a general uneasiness withtheories of tradition.50 In a world ofcompeting traditions, Glenn points out thatthere is “no initial justification for grantingprimacy of one [tradition] over others”.51

With this relativist perspective in mind,Glenn fleshes out the contours of traditionto provide a way to think about andcompare multiple traditions. According toGlenn, thinking theoretically abouttradition is a valuable exercise becauseit expands knowledge and understandingabout others.52 Contemplating traditionrequires one to suspend conviction in atradition to learn from another in a “middleground”.53

Tradition is defined by Glenn as thepresence of past information that

underwent the process of traditio.54 First,the presence of past information isnecessary to use and further transmittradition. If information about the past isnot accessible, a tradition is unknown.Presence of the past refers to the captureof information in a way that makes itaccessible to others, occurring through avariety of means such as objects, speechand writing. In considering variousphysical means, Glenn notes that objectscontain implicit information about howthey were made. The mere existence ofan object discloses an understanding ofthe physical world necessary to itscreation.55 For example, a clay potdemonstrates the creator’s knowledge ofhow to mould soft earth into a usefulshape, and the process of hardening clayby extreme heat. Like other physicalobjects, written texts are durable butremain vulnerable to human destruction,natural decay and the loss of meaningfrom collective human memory.56 Even ifdecipherable, texts are liable to theinterpretation of the reader since differentindividuals at different times will likelydraw different meanings from the sametext.57 Furthermore, texts cannot answera reader’s challenge or criticism. The textmust be able to, on its own terms,convince whomever it happens to meet.58

Second, traditio describes a processof transmission which brings pastinformation to the present. Glenn’s useof the word traditio originates in the 15th

47 H. Patrick Glenn, Legal Traditions of theWorld, 3rd ed. (New York: Oxford University Press,2007).

48 Ibid. at 2-3.49 Ibid. Certainly, rational thinking has an

extensive presence in western philosophy,stretching back to ancient civilizations.

50 Ibid. at 4.51 Ibid.52 Ibid. However, the value Glenn places on

the knowledge and understanding of others is itselfa tradition. Glenn may acknowledge this implicitlywhere he expresses uneasiness with the evaluation

of one tradition through the logic of another, seesupra note 27.

53 Ibid.54 Ibid. at 4-15.55 Ibid. at 8.56 For example, if the language of the text was

no longer understood or decipherable, its meaningwould be lost from the collective human memory.Ibid. at 9.

57 Presumably, this is why many great texts takethe form of dialectic reasoning.

58 Supra note 24 at 10.


century Latin root of tradition meaning“delivery, surrender, handing down, asaying handed down, instruction ordoctrine delivered”.59 The continuoustransmission of past information within aparticular social context is necessary toensure its present relevance.60 In otherwords, the process of traditio is necessaryto provide cultural familiarity with pastinformation. Where the process of traditiofails, traditions appear strange and theiradherents come across as different.61

Glenn’s theory of tradition provides auseful structure by which to consider legaltraditions of ancient Egypt. Our historicalknowledge derives from physical objectsand written texts which survived thedestructive tendencies of time. Theavailability of ancient information in thepresent has increased dramaticallybecause of recent advances in theunderstanding of ancient languages andarcheological techniques. This infor-mation reveals well-defined legal tradi-tions in the ancient world, and particularlyancient Egypt.62 As expected, many ofthese traditions appear strange, indicatinga breakdown in the continuity of their

transmission. While centuries of sub-sequent intellectual development maydiscredit ancient ideas, an unbridgeabledichotomy between the ancient world andthe present is not beyond question.Descriptions of ancient Egyptian legaltraditions that appear surprisinglyunsurprising in the western legal contextreveal links between the ancient and thepresent. While gaps in the historicalrecord prevent the tracing of thesetraditions through the passage of time,their comparison with contemporaryunderstandings leaves no doubt of theirtransmission, speaking to their consi-derable venerability.

Considered one of the most influentialcivilizations, the ancient Egyptianscreated a progressive society anddeveloped legal traditions still felt in thepresent.63

Although large quantities of physicalobjects and written texts from the FertileCrescent remain well preserved, themeaning of their inscriptions remained amystery for more than a millennium.64 Asignificant breakthrough occurred with thediscovery of the Rosetta Stone stele on

59 The Oxford English Dictionary, 2d ed., s.v.“tradition”.

60 Supra note 24 at 12.61 Ibid.62 Information must be received from physical

objects and written texts with great care and culturalsensitivity. With respect to physical objects,Professor Glenn notes that they “do not speak orcommunicate in a human language, so a particularreceptivity is called for...” Ibid. at 7. The reading ofwritten texts presents significant interpretationchallenges. Glenn writes that “[a]gainstnon-traditional interpretations, the text cannotanswer back. It simply is the canon, forever suchand as such, forever vulnerable. … Absentdemonstrable adherence to custom, or revelation,the text may be seen more as a point of departurethan as a means of continuance.” Ibid. at 10.

63 For example, the scales of justice as a symbolof justice first appeared in ancient Egypt c. 2000BCE. See James Henry Breasted, The Dawn ofConscience (New York: Charles Scribner’s Sons,1933) at 189-90, the title of which inspired the name

of this section. See also Russ VerSteeg, Law in theAncient World (Durham, NC: Carolina AcademicPress, 2002) at 108. The scales of justice arediscussed further in this section. In addition to legaltraditions, ancient Egyptians contributions to art,architecture, astronomy, literature and medicine arefelt in the present. The progressiveness of ancientEgyptian society is detailed by Breasted.

64 Although many ancient records have beenlost or destroyed, the ancient Egyptiansmeticulously recorded their affairs, producing hugequantities of written sources, a fraction of which arepreserved. See R.O. Faulkner, “The Kingdom UnderRamesses III” in The Cambridge Ancient History:The Middle East and the Aegean Region c.1380-1000 B.C., 3rd ed. (Cambridge: CambridgeUniversity Press, 1975) 244 at 245 and John VanSeters, In Search of History: Historiography in theAncient World and the Origins of Biblical History(New Haven: Yale, 1983) at 129 who writes that“no Near Eastern society was more meticulous inits record keeping”.


Egypt’s Mediterranean coast in 1799. TheStone contained an inscription in twoforms of hieroglyphs and classical Greek.This discovery became a catalyst for theeventual decipherment of hieroglyphs, amomentous achievement occurringseveral decades later. This accom-plishment brought the presence of ancientEgyptian information to the present.65 Asa result, the texts of numerous ancientsources, some dating back more than5,000 years, are now available incontemporary languages.

Ancient Egyptian texts reveal aremarkably organized and sophisticatedlegal system.66 Although no legal coderemains, texts from as early as the MiddleKingdom refer to one.67 In the ancientEgyptian state, officials acted as decision-makers in both civil and criminal cases.Since there was no professional judiciary,governors adjudicated disputes in afederation of regional courts. Six courtscomprised the kingdom’s judicial system,each with a chief judge. Litigants broughtdisputes for adjudication through formalwritten applications. It appears that theancient Egyptians were a litigious lot;court scribes meticulously recordednumerous private and public cases.68

These records read like case reports,each briefly describing the facts and thejudge’s decision. In terms of govern-mental structure, an important officialknown as the vizier acted as thekingdom’s prime minister. In addition tocarrying out a range of executivefunctions, the vizier served as the chiefjustice of the regional courts and

administered the judicial system. AncientEgyptians considered the vizier to speakon behalf of Ma’at, the goddess of truthand justice.69 In his role as head of thejudicial system, the vizier bothinvestigated and heard serious cases,such as murder.

One of the earliest references to theadjudicative process appears more than4,000 years ago in the tombs of two stateofficials. These officials acted as judgesduring the lengthy reign of the SixthDynasty pharaoh, Pepi II. The inscriptionsread, “Never did I judge two brothers insuch a way that a son was deprived ofhis paternal possession.”70 These earlyinscriptions illustrate the most ancientEgyptian adjudicators taking the interestsof persons, other than the parties to thelitigation, into account. Not only do theseinscriptions demonstrate the conside-ration of broader societal interests indecision-making, their inclusion in thetombs of two state officials indicates theofficials? concern with their reputation forfairness in the community. These twoinscriptions provide the first reference toan increasingly important theme ofadjudicative fairness in the ancientEgyptian kingdom. During the subsequentFirst Intermediate Period, a Heracleo-politan king wrote eloquent passages ofwisdom to his young son, known as theInstruction Addressed to Merikere. Withrespect to the appointment of stateofficials, the king advised his son to selectwealthy judges. Judges lacking materialresources were liable to corruption bywealthy litigants:

65 See generally, E.A. Wallis Budge, TheRosetta Stone (New York: Dover Publications,1989).

66 See Raymond Westbrook, “What is theCovenant Code?” in Bernard M. Levinson, ed.Theory and Method in Biblical and Cuneiform Law(Sheffield: Sheffield Academic Press, 1994) 13.

67 Ibid.68 See P.G. Monateri, “Black Gaius: A Quest

for the Multicultural Origins of the „Western LegalTradition?” (2000) 51 Hastings L.J. 479 at 521.

69 For a critical examination of Ma’at in modernmoral language, see Maulana Karenga, Maat, TheMoral Ideal in Ancient Egypt: A Study in ClassicalAfrican Ethics (New York: Routledge, 2004).

70 James Henry Breasted, Ancient Records ofEgypt, vol. 1 (Irvine, California: Michael S. Sanders,1988) at 325-31, 355-57.


Make great thy nobles, that they mayexecute thy laws. He who is wealthy inhis house does not show partiality, for heis a possessor of property and is withoutneed. But the poor man (in office) doesnot speak according to his righteousness,for he who says „Would I had?, is notimpartial; he shows partiality to the onewho holds his reward.71 The Heracleo-politan king’s advice to his eventualsuccessor demonstrates the importanceof adjudicative impartiality in the ancientEgyptian state. A corrupt judiciary wouldundermine public confidence in thejudicial system, and ultimately the king’sauthority. In order to maintain adjudicativeimpartiality, the king wisely separated theinterests of his judicial officials from thoseof powerful litigants by ensuring thatjudges were sufficiently wealthy to resisttheir influence.

An inscription from the conclusion ofthe First Intermediate Period and thereunification of the Egyptian kingdomevidences the entrenchment of theHeracleopolitan king’s idea that sufficientresources would shield judicial officialsfrom the influence of wealthy litigants.Mentuwoser, a prominent state officialserving under the Twelfth Dynastypharaoh Sesostris I, proudly proclaimedhis impartiality on a well-preserved stonetablet found in a temple dedicated to thegod Osiris. In the inscription, he boasts,“I was one who heard cases according tothe facts without showing partiality to himwho held the reward, for I was wealthyand goodly in luxury.”72 Whether or notimpartiality was a justification forMentuwoser’s extravagant lifestyle, thisprominently displayed tablet reveals thejudicial adjudicative impartiality embed-

ded among ancient Egyptian judges andthe value of a reputation for fairness.73

Deeply entrenched among Egyptianjudges, the tradition of impartialityreceived its strongest endorsement fromthe pharaoh himself. Thutmose IIIappointed Rekhmire as vizier over thekingdom during the latter half of hisEighteenth Dynasty reign. During thelavish appointment ceremony, ThutmoseIII furnished Rekhmire with detailedinstructions on how to carry out the dutiesof his office, known as the Installation ofthe Vizier. These instructions establishguidelines for the vizier’s behaviour in theexercise of his executive, administrativeand judicial responsibilities, and in hisrelations with others. An impressiveinscription recounting these instructionsappears in Rekhmire’s tomb:

It is an abomination of the god to showpartiality. This is the teaching: thou shaltdo the like, shalt regard him who is knownto thee like him who is unknown to thee,and him who is near… like him who isfar… Do not avoid a petitioner, nor nodthy head when he speaks.74

Thutmose III’s instructions make a keycontribution toward the development ofthe tradition of adjudicative impartiality byplacing fairness at the heart of judicialdecision-making. The Installation of theVizier views impartiality as an indispen-sable feature of adjudication. By connec-ting judicial partiality to condemnation bythe gods, the pharaoh rebuked corruptionin the strongest terms possible. Thisdenunciation of partiality is even moresignificant from the mouth of the pharaoh,given that ancient Egyptians consideredthe pharaoh a living god.75 Theinstructions of Thutmose III also refer to

71 Breasted, supra note 40 at 154-57.72 Ibid. at 161.73 Ibid.74 James Henry Breasted, Ancient Records of

Egypt, vol. 2 (Irvine, California: Michael S. Sanders,

1988) at 665-68.75 John A. Wilson, “Authority and Law in Ancient

Egypt” in Authority and Law in the Ancient Orient(Baltimore: American Oriental Society, 1954) at 6.


impartiality as a state of mind: adjudi-cators are to see the parties as equals. Alitigant who knows the judge must notreceive a juridical advantage. The king’sdecree to treat those who are near likethose who are far requires officials toabandon their prejudices and affectionsin deciding disputes. Furthermore,Thutmose III’s caution against a judgenodding his head while parties argue thecase reveals an awareness of how aperception of partiality could result in aloss of confidence in the judicial system.Interestingly, this admonition shows thepharaoh taking the perspective of anordinary litigant by considering that aperception of unfairness could resultwhere a litigant views the judge’s bodylanguage as receptive to the opposingparty. Thutmose III also providedRekhmire with an example of whatfairness means. The pharaoh recountsthe story of vizier Kheti, who heard a caseinvolving one of his relatives:

Beware of that which is said of thevizier Kheti. It is said that he discriminatedagainst some of the people of his own kinin favor of strangers, for fear lest it shouldbe said of him that he favored his kindishonestly. When one of them appealedagainst the judgment which he thought tomake him, he persisted in hisdiscrimination. Now that is more thanjustice.76

This story shows how far a judgewould go to avoid having his reputationtainted by accusations of partiality. InKheti’s case, the vizier denied justice tohis relatives in order to insulate himselffrom charges of bias. According to thepharaoh, this went too far. WhileThutmose III clearly valued the perceptionof impartiality, his instructions make clear

that decisions must always be made onthe merits of the case.77 Further inRekhmire’s tomb, the vizier describes hisapproach to decision-making as the chiefjustice of Egypt:

I judged both [the insignificant] and theinfluential; I rescued the weak man fromthe strong man; I deflected the fury of theevil man and subdued the greedy man inhis hour... I was not at all deaf to theindigent. Indeed I never took a bribe fromanyone…78

This inscription demonstrates howRekhmire decided cases in accordancewith Thutmose III’s instructions. Rekhmirehighlights cases where a significant powerimbalance existed between litigants,proclaiming that powerful parties couldnot intimidate him. Not only doesRekhmire assert that he decided casesin favour of the weaker party whendemanded by justice, he appears to relishin his reputation of protecting the weakfrom oppression. Like Thutmose III,Rekhmire considers the appearance ofhis impartiality by pointing out that healways heard both parties, without regardto their status, before rendering adecision. Listening attentively to each sideprevented disappointed litigants fromclaiming that Rekmire ignored theirarguments because of their lowly status.Lastly, the inscription emphasizes thatRekmire decided cases exclusively on therequirements of justice, never succum-bing to influence from wealthy litigantsoffering bribes.

In addition to inscriptions describingthe tradition of adjudicative impartiality,institutional arrangements developed overtime to separate ancient Egyptian judgesfrom sources of influence. While both theHeracleopolitan king and Mentuwoser

76 James Henry Breasted, Development ofReligion and Thought in Ancient Egypt(Philadelphia: University of Philadelphia Press,

1972) at 241-42.77 See Breasted, supra note 40 at 127.78 VerSteeg, supra note 40 at 111.


advocated the appointment of judges withthe resources to resist bribes, thejudiciary’s reputation in the kingdomeventually suffered. By the timeEighteenth Dynasty pharaoh Horemhebascended the throne, the judiciary was rifewith corruption.79 To restore confidencein state institutions and curb furtherabuses, Horemheb issued an edict toinsulate judges from sources of influence.On a prominently displayed stele,Horemheb decreed the establishment ofjudicial salaries to make judges lessdependant on bribes as a source ofincome.80 In addition, Horemheb furtherstrengthened the financial independenceof judges by exempting them from taxes.81

Given these new protections, Horemhebextended little sympathy to judgesaccepting bribes or otherwise demon-strating partiality, increasing the penaltyfor corruption to the severing of anoffender’s nose, or even death.82 AncientEgyptian literature reflects a variety ofwriting styles and techniques, providinga glimpse into the kingdom’s culture.Translated texts include religious books,proverbs, biographical works andscientific manuscripts. Several of thesesources look at the ancient Egyptian legalsystem and reflect popular attitudestoward adjudication. For example, theNineteenth Dynasty era proverbs knownas the Wisdom of Amenemopet cautionsboth litigants and judicial officials againstabuses of justice:

Do not force a man to go into court,Neither shalt thou bend righteousness (orjustice), While thy face is inclined towardsshowy clothing (of a litigant), And thoudrivest away him who is shabby. Take notgifts from the strong, Neither shalt thou

oppress for him the weak. Justice is agreat gift of god, He giveth it to whom hewill.83 The theme of adjudicativeimpartiality in this passage echoes theinstructions of Thutmose III. The proverbopenly acknowledges judicial vulne-rability; it is inevitable that the appearanceof wealthy litigants will impress decision-makers. Instead of giving into theirweaknesses, judges must remain vigilantto avoid allowing the appearance of alitigant to affect the decision-makingprocess. Judges are warned againstaccepting bribes from litigants, and areencouraged to treat all parties equally. Asseen in the instructions of Thutmose III,justice flows from the supernatural; judgesmust uphold their impartiality by receivingthe gift of justice from god.

Written in c. 1800 BCE, The Tale ofthe Eloquent Peasant remains as one ofthe most remarkable works of ancientfictional literature. The Tale tells the storyof a poor litigant’s firsthand experiencewith the ancient Egyptian legal system.The story begins with a peasant namedKhunanup traveling to the market with hisdonkeys laden with goods. On the way,he encounters Nemtinakht, the superin-tendent of a wealthy noble’s lands.Nemtinakht schemes to steal thepeasant’s goods, diverting Khunanup’scaravan over his fields. While passingover the field, one of the peasant’sdonkeys eats a mouthful of grain.Nemtinakht uses the “theft” of his grainas a pretense to beat the peasant andseize his goods. Given this injustice,Khunanup petitions a judge travelingthrough the region for relief. The judgelistens to the peasant deliver anextraordinary speech about truth and

79 Cyril Aldred, “The Reign of Horemheb” in TheCambridge Ancient History: The Middle East andthe Aegean Region c. 1380-1000 B.C, supra note41, 71 at 76 who writes that there was “widespreadcorruption” at the time Horemheb assumed office.

80 Wilson, supra note 52 at 120-23.81 Ibid.82 Ibid. See also Aldred, supra note 56 at 76.83 Breasted, supra note 40 at 324.


justice. After the speech, the judge is soimpressed with Khunanup’s oratory skillsthat he invites another official to listen tothe story. This scenario repeats itself, andKhunanup ends up reciting nine speechesbefore finally receiving justice from thepharaoh himself. The pharaoh listens toKhunanup’s final treatise on justice andorders the return of his goods and theforfeiture of Nemtinakht’s property to thepeasant for additional compensation.84

The nine speeches describe the roleand philosophy of ancient Egyptianjudges. Khunanup’s anxiety increaseseach time he is forced to repeat his pleas;with each additional repetition, the storybecomes increasingly desperate,reaching new heights of elaboration. Inhis first address, the peasant comparesthe role of the judge to a navigator of aship on the sea of truth, who must steeraround the dangers of injustice. In hissecond address, Khunanup appeals tothe judge’s sense of impartiality andfairness: Helm of heaven! Beam of earth!Plumbline bearing the weight! Helm, driftnot! Beam, tilt not!

Plumbline, go not wrong!85 Throughthese analogies, Khunanup suggests thatjudges can drift from justice, and appealsfor adjudicative impartiality. Becomingexasperated when delivering his thirdspeech, the peasant warns of biascreeping into the adjudicative process,admonishing the judge to avoid it:

Look, you yourself are the very scales:if they tilt, then you can tilt. Drift not, butsteer!86 Khunanup sees the judge as thepersonification of the scales of justice, an

analogy surprisingly familiar to contem-porary legal traditions. Biased scales tiltto one side instead of maintaining a trueand equal balance. Like the scales, thejudge must avoid prejudices that result inthe parties having less than a true andequal opportunity to present their case.Khunanup laments a partial judge,describing him as: … blind to what hesees, and deaf to what he hears, his heartstraying from what is recalled to him.

A partial judge does not listen to thearguments of the parties, and in makinghis decision, fails to consider the meritsof the case. Khunanup spares no wordsfor such a judge: Look, you are a townwithout a mayor, like a generation withouta great man, like a boat with no controller,a gang without a leader.

Look, you are a stealing officer, abribed mayor, a district-overseer whoshould beat off the plunderer who hasbecome an archetype for the evildoer.87

In his sixth speech, Khunanup persists inhis criticism of partial judges, againinvoking the analogy of the scales:

You were appointed to hear cases, tojudge contenders, to punish the thief.Look, your way is to weigh for the robber.You are trusted — and are become amisleader.88 In this passage, Khunanupreiterates adjudication as the basicfunction of the judiciary. Judges arenecessary to decide disputes anddispense justice. By virtue of their office,judges possess great power and publictrust. Litigants call upon judges to decidetheir conflicts with the understanding thatthe judge will hear both sides before

84 Story paraphrased from the translations inR.B. Parkinson, The Tale of Sinuhe and OtherAncient Egyptian Poems (New York: OxfordUniversity Press, 1997) at 54-88 and George A.Barton, Archeology and The Bible, 7th ed.(Philadelphia: American Sunday School, 1937) at525-28.

85 R.B. Parkinson, ibid. at 63.86 Ibid. at 66.87 Ibid. at 67.88 Ibid. at 69. The text “weigh for the robber” is

taken to mean that a biased just places moreemphasis on the scales of justice in favour of themorally blameworthy party


punishing the morally blameworthy party.A corrupt judge, who Khunanup comparesto the scales of justice weighed in favourof a thief, betrays their office andthreatens the process of adjudication.

The Tale of the Eloquent Peasantreveals the enormous value placed onadjudicative impartiality in ancient Egypt.Khunanup’s impressive speeches onjustice provide a detailed look at theancient Egyptian legal system from theperspective of a poor litigant, one whopossessed nothing more than an extra-ordinary way with words. The analogiesof justice and impartiality invoked byKhunanup still resonate in legal discoursetoday. Khunanup’s appeal to his judge’ssense of justice indicates that judges tookgreat pride in their reputations for fairnessand impartiality; the mere accusation ofadjudicative bias or corruption wasshocking and scandalous. Indeed, afterKhunanup questioned the motivations ofhis judge in the third speech, the courtattendants responded by beating him on“all his limbs”.89

Primary sources considered in thissection, many accessible only in the pasttwo centuries, reveal the dawn ofadjudicative impartiality in the ancientEgyptian kingdom. This tradition appearsfamiliar as a core principle of westernlegal traditions; does this indicate a bridgebetween the ancient world and thepresent time? Historians and legalscholars have explored a connectionbetween ancient Egypt and westerncivilization. Professor Monateri, forexample, has researched the possibilityof an African-Semitic link to western legaltraditions.90 Monateri concludes that“[w]estern law is derived not only fromRoman Law, but from other ancient lawsas well”, pointing to examples in contract

law, the state, the adjudication of disputesand the role of professional elites inshaping legal culture.91

As the starting point of this connection,sources indicate extensive diffusion oftraditions among ancient civilizations. Forexample, an old Babylonian hymn to thejudge-god Shamash describes a traditionof adjudicative impartiality: The unjustjudge thou makest behold shackles. Asfor him who takes a bribe and bends theright, Him dost thou burden withpunishment. He who does not take abribe, who espouses the cause of theweak,

Is well pleasing to Shamash: he willlive long. The careful judge, who rendersa just judgment, Prepares himself apalace, a princely residence is hisdwelling…92 The language of this hymnappears strikingly similar to ancientEgyptian sources. A corrupt Babylonianjudge accepting bribes bends the “right”,an analogy like Khunanup’s tilted scalesin the Tale of the Eloquent Peasant.Impartiality is considered pleasing to thegod Shamash, linking justice and thesupernatural as seen in both ThutmoseIII’s instructions to the vizier and theproverbs of Amenemopet. It is alsonotable that the hymn praises judgesprotecting weaker litigants, reminiscent ofthe boastful inscriptions in Rekhmire’stomb.

This diffusion of information in theancient world, coupled with historicalevents, evidences linkages between thetraditions of ancient Egypt and westerncivilization. These linkages appear like amatryoshka doll: inspecting the traditionsof one civilization reveals the traditionsof another inside. In chronological order,the ancient Egyptians and Greeksrepresent the first such connection.

89 Ibid. at 67.90 Monateri, supra note 45.

91 Ibid. at 516.92 Breasted, supra note 40 at 341.


Monateri points to Ptolemaic Egypt,starting in c. 332 BCE, as a period ofinformation transfer between the legaltraditions of the ancient Egyptians and theGreeks.93 This crosspollination oftraditions may have occurred even earlier,with the visit of Greek lawmaker Solon c.6th century BCE who studied in ancientEgypt before returning home to reformAthens? draconian laws.94

Octavian’s conquest of Greek-controlled Egypt c. 30 BCE, following thedeath of Ptolemaic Queen Cleopatra VII,brought surviving ancient Egyptian legaltraditions into the Roman world. Egyptiannational law and legal institutions conti-nued to operate after the Roman con-quest, even enduring after the AntoninianConstitution of 212.95 Whether from theEgyptians under Greek control, or borro-wed from Greek civilization influenced byancient Egypt, the Romans were awareof and influenced by ancient Egyptianlegal traditions. In turn, Rome’s exaltedlaws exerted great influence on westernlegal traditions.96

An alternative route by which ancientlegal traditions may have found their wayto the western world is through the ancientHebrews, especially considering thetremendous influence of the OldTestament.97 The ancient Egyptian and

Babylonian civilizations indirectlyinfluenced Hebrew literature and religioustexts through the Canaanites. At the timeof the Hebrew settlement in Palestine,ancient Egyptian and Babylonian tradi-tions saturated the resident Canaanitecivilization.98 The Canaanites were underEgyptian rule, and had developed anextensive trade relationship with theBabylonians. Therefore, it seems likelythat the Hebrews were indirectly exposedto ancient Egyptian traditions through theirinteraction with the Canaanites.99

The Torah records direct evidence ofancient Egyptian influence on the Hebrewcivilization through the prophet Moses.According to the narrative in the book ofExodus, the pharaoh’s family adoptedMoses as an infant.100 Raised by Egyptiannobility, Moses spoke Egyptian, learnedEgyptian traditions and became familiarwith Egyptian culture. The first biblicalreference to a tradition of adjudicativeimpartiality appears shortly after the storyof Moses leading the Hebrews out ofEgypt. Exodus 18:21 describes Moses?father-in-law, a Midianite priest, advisingMoses on the appointment of judges:

[T]hou shalt provide out of all thepeople able men, such as fear God, menof truth, hating covetousness; and placesuch over them, to be rulers of thousands,

93 Monateri, supra note 45 at 519, 522.94 See Yaacov Shavit, History in Black:

African-Americans in Search of an Ancient Past(London: Frank Cass, 2001) at 114. Greek laws atthe time were literally draconian, having been writtenby Draco, and consisted of almost entirely capitaloffences.

95 Monateri, supra note 45 at 527.96 At its height, the Roman Empire included

most of continental Europe, and even reached intoGreat Britain. For the consideration of Romaninfluence on the civil law tradition see John HenryMerryman & Rogelio Pérez-Perdomo The Civil LawTradition: An Introduction to the Legal Systems ofEurope and Latin America, 3rd ed. (Palo Alto,California: Stanford University Press, 2007) at 13.Although Roman legal traditions had less influenceon the development of the common law, its influence

is still felt. See Arthur P. Monahan, Consent,Coercion and Limit: The Medieval Origins ofParliamentary Democracy (Montreal: McGill-Queen’s University Press, 1987) at 76 and GeorgeMousourakis, The Historical and InstitutionalContext of Roman Law (Burlington, Vermont:Ashgate Publishing, 2003) at 434.

97 See Breasted, supra note 40 at 338. Forconsideration of the influence of the Old Testamenton western civilization see “The Old Testament” inJohn L. Beatty & Oliver A. Johnson, Heritage ofWestern Civilization, vol. 1, 8th ed. (EaglewoodCliffs, New Jersey: Prentice Hall, 1995) 21.

98 Breasted, supra note 40 at 347.99 Hebrew interaction with the Semitic

Canaanite civilization is recorded in the OldTestament books of Joshua and Judges.

100 Exodus 2:10.


and rulers of hundreds, rulers of fifties,and rulers of tens.101 Deuteronomy1:16-17 repeats the story of Mosesappointing judges:

And I charged your judges at that time,saying, Hear the causes between yourbrethren, and judge righteously betweenevery man and his brother, and thestranger that is with him. Ye shall notrespect persons in judgment; but ye shallhear the small as well as the great; yeshall not be afraid of the face of man; forthe judgment is God’s: and the cause thatis too hard for you, bring it unto me, and Iwill hear it.102

Like the ancient Egyptian tradition, thesupernatural plays an important role in theancient Hebrew conception of justice.Most noteworthy are the similaritiesbetween the Hebrew God and theEgyptian goddess Ma’at.103 Both repre-sent a fountain of justice; the function ofthe judge is to listen to both sides of thedispute and then decide the case inaccordance with divine judgment. Thebiblical text also reflects the ancientEgyptian tradition of adjudicativeimpartiality.104 Reminiscent of Rekhmire’sboast of saving weaker parties from thosewho would oppress them, Moses instructsjudges to treat both parties the same, andnot to fear intimidation by powerfullitigants.

From these historical linkages, itappears that the ancient Egyptian traditionof impartiality has become a core principleof western legal traditions. Although gapsin the historical record prevent precisetracing, a prominent symbol of impartialityconfirms the transmission of a traditionof adjudicative impartiality from ancientEgypt to the present. Originating in theOld Kingdom of ancient Egypt, the scalesof justice adorn modern courthouses,representing impartiality.105 Our contem-porary familiarity with the scales of justicedemonstrates our familiarity with anancient symbol and a tradition developedover thousands of years in the ancientEgyptian kingdom. The scales representthe existence of a bridge to the past; aproposition that thousands of years ofsubsequent intellectual development hasupheld: judges, in carrying out theirfunction of deciding disputes, must actimpartiality and listen to both sides,something argued by an eloquent peasantnearly 4,000 years ago.106

B. IMPARTIALITY UNDER THEHOBBESIAN SOCIAL CONTRACT

Hobbesian social contract theoryconfirms the importance of impartiality toa peaceful society. In his political sciencemasterpiece, Leviathan107, Thomas

101 King James Version.102 King James Version.103 The two tablets delivered by Moses on

Mount Sinai may represent the Ma’atian conceptsof law and justice. See Gerald Massey, AncientEgypt: The Light of the World, vol. 1 (London: T.Fisher Unwin, 1907) at 537. See also J. GwynGriffiths, “The Legacy of Egypt in Judaism” inWilliam Horbury, W.D. Davies & John Sturdy, TheCambridge History of Judaism: The Early RomanPeriod, vol. 3 (Cambridge: Cambridge UniversityPress, 2000) 1025, notably the biblical referencesto the Egyptian scales of justice at 1045. In addition,the Wisdom of Amenemopet was translated intoHebrew, read by Hebrews and influenced the writingof the Old Testament: Breasted, supra note 40 at322.

104 According to Breasted, the pharaohinstructed the vizier that his duty was “not to showrespect of persons”, words nearly identical toMoses? instructions. Ibid. at 342-43.

105 Wolfgang Boochs, Altägyptisches Zivilrecht(Sankt Augustin, Academia Verlag, 1999) at 13,cited in Glenn, supra note 24 at 93 n. 2, see alsosupra note 40 and Griffiths, supra note 80. Thescales of justice also appear in the Tale of theEloquent Peasant, considered earlier.

106 In the Tale of the Eloquent Peasant,Khunanup analogies the judge to the scales ofjustice, and implores him to maintain a fair and truebalance.

107 Thomas Hobbes, Leviathan (Mineola, NewYork: Dover Publications Inc., 2006).


Hobbes propounds the first moderniteration of the social contract. Publishedin 1651, during the political turmoilfollowing the execution of King Charles I,the text reveals Hobbes as a staunchroyalist, intimately concerned with theoutbreak of civil war in his nativeEngland.108 Through his infamousanalogy of the state as an artificial person,Hobbes approaches sedition as a politicalsickness leading to civil war, andultimately the death of the state.109 Thecause of sedition is political unrest, butlike a physical sickness, it can be treatedand cured.110 Within this context, theLeviathan is as much of a work ofscholarship as it is a prescription forhealing England’s political sickness bypersuading citizens of the legitimacy andnecessity of the state.

Hobbes paints a miserable picture ofthe hypothetical state of nature.111 Bynature, men enjoy complete liberty,defined by Hobbes as the absence ofexternal impediments that take awaypower from a man to do what he wants.112

While this may appear favourable at firstglance, men with unrestricted liberty in thestate of nature employ any meansnecessary to promote and protect theirself-interest. Furthermore, it is a funda-mental right of nature that each man cando anything in the name of self-defence.113 According to Hobbes, thereis no state, law or even morality in nature,and thus no social organization, justiceor injustice, right or wrong behaviour.114

Each man possesses a right to everythingthat exists, even another’s body.115 Since

men evaluate actions from theirself-interested point of view, there is noforum for resolving disputes that mayarise; each man acts as his own judge inall matters.116 Violent conflict is liable toerupt when the self-interests of two ormore men clash, for example if they desiresomething that cannot be enjoyed bythem all. Given the limited availability ofnatural resources, men must eitherdestroy or subdue others to survive.117

It is possible for men to escape thisbrutal state of nature if they enter into acontract to curtail their natural liberty. Mennegotiate this social contract on equalterms, given that each man fears deathand seeks the benefit of its protection fromthe violence of war.118 A man must bewilling to give up his right to do what hewants in the pursuit of peace when othersare also prepared to do so.119 The extentto which men must divest their libertydepends upon how much liberty eachman would allow another to enjoy againsthimself. Hobbes characterizes the termsof the social contract as the laws of naturethat, once recognized, can deliver menfrom the state of nature into a peacefulsociety.120 Hobbes sums up the laws witha negation of the golden rule: do not dothings to others which you do not want tohave done to you.121 This rule provides asimplified way for men to weigh theactions of others against their own.

According to Hobbes, inequalities donot exist in the state of nature, but arisefrom the introduction of civil laws.122

Therefore, men must acknowledge

108 Geoffrey M. Vaughan, Behemoth TeachesLeviathan: Thomas Hobbes on Political Education(Lanham, Maryland: Lexington Books, 2002) at 16.

109 Ibid.110 Iibd.111 The usage of masculine references in this

section are for the purposes of integration with theoriginal text of the Leviathan, but should be readas including all persons.

112 Supra note 84 at 72.

113 Ibid. at 72.114 Ibid. at 71.115 Ibid. at 72.116 Ibid. at 78.117 Ibid. at 69.118 Ibid. at 86.119 Ibid. at 73.120 Ibid. at 88.121 Ibid.122 Ibid. at 86.


equality amongst themselves.123 Even ifa man believes himself to be superior toothers, he must accept natural equalityamong men given that they enter into thesocial contract on equal terms.124

Furthermore, it is a premise that a mancannot reserve a right for himself underthe social contract which he would notallow others to retain.125 When men keeprights that they do not want others toenjoy, they act against the law of naturalequality.126 The laws of nature describedby Hobbes demonstrate the importanceof adjudicative impartiality to a peacefulsociety. Given men’s self-interest, thepeaceful resolution of conflict requiresmen to give up the natural right to decidetheir own disputes under the socialcontract:

And seeing every man is presumed todo 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 Equityallowing to each party equall benefit, ifone be admitted to be Judge, the other isto be admitted also; & so the controversie,that is, the cause of War, remains, againstthe Law of Nature.127 Even though thelaws of nature provide the means for mento avoid the state of nature, Hobbesacknowledges that conflict may arise afterthe formation of the social contract. Inorder to preserve peace, the parties to acontroversy must submit their dispute toa judge for a decision:

And because, though men be neverso willing to observe these Lawes, theremay neverthelesse arise questionsconcerning a mans action; First, whetherit were done, or not done; Secondly (ifdone) whether against the Law, or notagainst the Law; the former whereof, iscalled a question Of Fact; the later a

question Of Right; therefore unlesse theparties to the question, Covenant mutuallyto stand to the sentence of another, theyare as farre from Peace as ever. Thisother, to whose Sentence they submit, iscalled an Arbitrator. And therefore it is ofthe Law of Nature, That they that are atcontroversie, submit their Right to thejudgement of an Arbitrator.128 Given thecentral role of judges in maintaining apeaceful society, Hobbes emphasizesthat judges must remain impartialbetween the parties:

Also if a man be trusted to judgebetween man and man, it is a precept ofthe Law of Nature, that he deale Equallybetween them. For without that, theControversies of men cannot bedetermined but by Warre. He thereforethat is partiall in judgment, doth what inhim lies, to deterre men from the use ofJudges, and Arbitrators; and conse-quently, (against the fundamentall Laweof Nature) is the cause of Warre.129

Hobbes further writes that judges losetheir impartiality when they possess aninterest in the outcome of the case:

For the same reason no man in anyCause ought to be received for Arbitrator,to whom greater profit, or honour, orpleasure apparently ariseth out of thevictory of one party, than of the other: forhee hath taken (though an unavoydablbribe, yet) a bribe; and no man can beobliged to trust him. And thus also thecontroversie, and the condition of Warremaineth, contrary to the Law ofNature.130

The Hobbesian theory of the socialcontract demonstrates why third partiesmust be called upon to decide disputesin a peaceful society. In the state ofnature, men can do anything to

123 Ibid.124 Ibid.125 Ibid.126 Ibid.

127 Ibid. at 87.128 Ibid.129 Ibid. at 86.130 Ibid. at 87.


accomplish their desired ends. No action,no matter how distasteful or repugnant,is immoral or unjust; men are exclusivelyinterested in their survival and maintainingself-defence. Men cannot trust oneanother in the condition of war to keeppromises and are therefore unable toenter into agreements to resolve theirconflicts.131 The peaceful determinationof disputes is hardly possible in thescenario of every man for himself; instead,violence ends up resolving inevitableconflicts over limited natural resources.Eventually the need for self-defencemotivates men to enter into a socialcontract for peace. Men must agree to setaside their natural right to do what theywant in the interest of peace. The extentto which natural liberty must be divestedunder the social contract depends uponhow much liberty men would allow others.In other words, the liberties retained insociety are those which each man,negotiating the social contract from aposition of natural equality, would permitevery other man to enjoy against himself.Hobbes? equality of liberty among menprovides the key to understanding thelegitimacy of third party adjudication in apeaceful society.

In the state of nature, where men enjoyunrestricted liberty to do what they want,both parties to a conflict possess the rightto judge their dispute,132 leading to animpasse that can only be resolved byconquest. In the words of Hobbes, “theControversies of men cannot bedetermined but by Warre”.133 Conflictsbetween men do not disappear once asocial contract for peace is established.Disputes are bound to arise from man’spursuit of self-interest in even the mostharmonious of societies, thus a peaceful

society must hold a non-violentmechanism to end them. It is beyondobvious that no self-interested litigantwould allow his opposing party to decidetheir disagreement, yet this simpleproposition reveals what lies behind thelegitimacy of arbiters. One would rejecthis opponent as a judge withouthesitation, since there would be noconfidence that the matter would bedecided fairly by the very person whoseinterests are at stake. This propositiondemonstrates impartiality as essential tothe acceptance of a decision-maker.None of the contesting parties isacceptable to the others as the judge ofthe controversy since they are all partial;moreover, none possesses this rightunder the social contract. Given that aparty to a dispute would deny hisopponent’s liberty of judging theircontroversy, Hobbes? equality of libertyprinciple requires him to divest the rightto judge his conflicts under the socialcontract. Thus, in a peaceful society noman can judge his own case: “And seeingevery man is presumed to do all things inorder to his own benefit, no man is a fitArbitrator in his own cause.”134

If the parties to a dispute lack thelegitimacy to judge their conflict, who, thenshould decide? The only rational optionto settle disagreements in a peacefulsociety is the judgment of a third party,someone unconnected to the dispute.135

According to Hobbes, the law of naturecommands men to submit theircontroversies to an arbiter for a decision:“[t]his other, to whose Sentence theysubmit, is called an Arbitrator… they thatare at controversie, [must] submit theirRight to the judgement of an Arbitrator.”136

131 This is why the Leviathan must be createdto enforce the social contract between men in thestate of nature: ibid. at 76.

132 Ibid. at 78.133 Ibid. at 86.

134 Ibid. at 87.135 A third party in this context is broad enough

to include multiple persons, for example a group ofindividuals such as a jury.

136 Supra note 84 at 87. Emphasis added.


The use of the word “other” signifies thethird party status of the decision-maker.137

Because impartial arbiters are essentialto a peaceful society, men must be ableto access genuine third parties toadjudicate their conflicts. If an impartialarbiter cannot be found, men will withholdtheir disputes from third party adju-dication.138 The potential consequencesof this failure may be severe, as thedispute is apt to end in a mannerdestructive of a peaceful society.139 Thepeaceful adjudication of disputes dependsnot only upon men bringing theircontroversies before an arbiter, but alsoupon their willingness to abide by thearbiter’s decision. What makes the partiesto a dispute willing to accept an adversedecision? The answer to this questionilluminates the legitimacy of theadjudicative process, and is particularlyimportant to the effectiveness of thirdparty decision-making since one party isbound to be routinely disappointed withthe outcome of the case. In the event thedecision of a judge is rejected, thedispute’s impasse returns, carrying withit the potential for litigants to take thecontroversy into their own hands. Giventhat men are generally self-interested,they must have a stronger motivation toabide by an unfavourable judgment thanto simply reject it after the fact.

As demonstrated earlier, only thirdparty adjudicators can legitimately decidedisputes brought before them under thesocial contract. For the same reason thatno man would permit his opposing partyto decide their case, he would not acceptthe judgment of a decision-maker whodemonstrated partial affections or treatedhim unfairly. Hobbes writes that an arbiterwho stands to gain “greater profit, orhonour, or pleasure” from “the victory ofone party, than of the other” has becomepartial to the outcome of the dispute. Inthis case, “no man can be obliged to trusthim”.140

For example, a judge accepting a bribefrom one of the litigants appearing beforehim loses his impartiality vis-à-vis theparties; the absence of impartiality resultsin a loss of legitimacy. The acceptanceof a bribe revokes the judge’s status as athird party to the dispute. In effect, he hasbecome a party to the litigation since hedevelops a direct interest in the outcomeof the case. Since he acts as a party tothe dispute, he has no right to decide thecontroversy unless all the litigantspossess the same right.141 Theunsuccessful litigant is thus justified inrejecting the decision of a partial arbiterbecause such a judge has simply becomea proxy for his opponent.

137 See ibid.138 Hobbes recognizes as much when he writes

that judges exhibiting partial affections dissuademen from bringing their controversies before anarbiter. Such judges are responsible for a return tothe condition of war. Ibid. at 86. The decision-makermust be accepted by all parties to the dispute as agenuine third party, in the sense that he isunconnected to the subject matter or the partiesinvolved. Considering that the ending of disputesis in the best interest of all members of society, thestate creates and maintains judicial institutions toprovide access to justice. It is likely that otherbarriers to third party adjudication, particularlycomplexity and cost, may further dissuadeindividuals from submitting their controversies foradjudication if an alternative third partydecision-maker is not readily available.

139 An ongoing dispute, such as anintergenerational blood feud, can be as destructiveof a peaceful society as a dispute ended by one ofthe parties by violence. According to Hobbes, thestate of war is liable to return where men fail to bringtheir controversies to an arbiter. Without an impartialdecision-maker, a dispute cannot be settled exceptfor in the condition of war: ibid. at 86.

140 Ibid. at 87.141 Of course, this situation would return the

dispute to an impasse that could only be resolvedby conquest. Hobbes writes that “no man is a fitArbitrator in his own cause: and if he were never sofit; yet Equity allowing to each party equall benefit,if one be admitted to be Judge, the other is to beadmitted also; & so the controversie, that is, thecause of War, remains, against the Law of Nature.”Ibid.


Hobbes? emphasis of the relationshipof impartiality to adjudicative legitimacyis further demonstrated by his harshwarning to those entrusted with decidingdisputes and the negation of the goldenrule. First, the laws of nature requirearbiters to deal with the litigants equally.Under the laws of nature, impartialadjudication is the only means to decidedisputes peacefully.142 Judges exhibitingpartial affections dissuade men fromsubmitting their disputes before an arbiterin the first place. Hobbes condemns suchjudges in the harshest of terms, findingthem guilty of breaching the fundamentallaw of nature and blaming them forcausing war.143 Second, the negation ofthe golden rule confirms impartiality at thecore of third party adjudication. As asummation of the laws of nature, the ruleadvises men not to do something theywould not want done to them. No manacting as an arbiter would want his owndisputes to be decided by someoneexhibiting partiality. Thus, he has anobligation to those entrusting him withdeciding their case to treat them and thesubject matter of their dispute withimpartiality. If he cannot treat the partiesfairly, he must not decide the matter ashe is no longer a third party to the conflict.

III. IMPARTIALITY AND JUDICIALINDEPENDENCE

In the previous section, theconsideration of the historical recordrevealed the dawn of impartiality inancient Egypt. The importance ofimpartiality to decision-making was thenconfirmed by the Hobbesian socialcontract. Since the legitimacy of judges

hinges on their status as third parties tothe dispute, a decision-maker must treatthe issues and the parties fairly tomaintain legitimacy. Given that impar-tiality is identified by an early historicalanalysis and the Hobbesian socialcontract as essential to adjudication, whatdoes impartiality reveal about the contem-porary concept of judicial independence?This section sets out to answer thisquestion through an examination of theconcepts of impartiality and judicialindependence in the context of judicialinstitutions.144

First, this section looks directly at thejudicial mind by considering the conceptof impartiality. As a state of mind,impartiality requires judges to treat theissues and the parties fairly. However, theidea of actual impartiality is plagued bypractical difficulties. There is no way tolook inside the human mind to see biasesand or prejudices, making it impossibleto assess whether a judge was actuallyimpartial in any particular case.Furthermore, it is likely that actual humanimpartiality is unrealistic. Judges areselected to decide cases because of theirexperience-based knowledge, andpossess opinions and feelings thatamount to partial affections. Thedifficulties of actual impartiality can beovercome by adopting a distinctionbetween actual impartiality and theperception of impartiality. Given thatimpartiality is required to maintain apeaceful society, the perception ofimpartiality is the best that humaninstitutions can accomplish. Judges seenas third parties to the dispute by litigantsand the community possess thenecessary legitimacy to determine

142 Impartial adjudication derives from thearbiter’s status as a third party to the dispute,affording legitimacy to the decision. Ibid. at 86.

143 Ibid. at 86.144 The state creates and maintains judicial

institutions to provide access to justice. This accessto justice is accomplished by offering judges astrained third party arbiters to decide disputes thatarise.


conflicts. Second, this section looksoutside the judicial mind to externalinfluences by considering the contem-porary understanding of judicial inde-pendence. The definition of judicialindependence as unqualified by theinternational community sets out theprinciple that judges must maintaincomplete freedom and autonomy fromany other entity in the performance of theirjudicial functions. While establishing astarting point for judicial independence,unqualified judicial independence leavesdifficult questions unanswered.Furthermore, unqualified independenceprovides no guidance for how to weighthe principle of complete judicial freedomagainst other principles.

Third, this section connects theconcepts of impartiality and judicialindependence by proposing indepen-dence as a means to the end of aperception of impartiality. This propositionprovides a more satisfying explanation ofjudicial independence than unqualifiedjudicial independence. Judicial indepen-dence is best understood in the contextof a liberal democracy where the stateappears as a litigant. In disputes involvingthe state, judges must maintain theirstatus as a third parties to the dispute inorder to preserve their legitimacy.Measures of judicial independence createthe necessary space between thejudiciary and sources of undue influenceto ensure confidence in impartialadjudication.

A. THE PERCEPTION OF IMPAR-TIALITY

The Oxford English Dictionary definesimpartiality as “[t]he quality or character

of being impartial; freedom from prejudiceor bias; fairness”.145 Impartial means“[n]ot partial; not favouring one party orside more than another; unprejudiced,unbiased, fair, just, equitable”.146 In otherwords, impartiality represents a state ofmind free from prejudice or bias, a mindthat considers others and their positionsfairly. When applied to adjudication, thisdefinition becomes fraught with practicaldifficulties. Assuming that impartiality hasa concrete meaning, one cannot probeinto the human mind to assess whether ajudge holds bias or prejudice. Thus, it isimpossible to determine with certaintywhether a judge’s mind is impartial.

Even if an inquiry into judicial mindswas possible, it is likely that every judgewould hold certain personal affections.Judges are not blank slates; they areselected to adjudicate disputes becauseof their experienced-based knowledge.Former United States Supreme CourtJustice Benjamin Cardozo admitted in aseries of speeches that judges holdpreconceived loyalties, but that theseaffections could be reduced by a certainattitude toward adjudication. According toCardozo, a judicial temperament “will helpin some degree to emancipate [judges]from the suggestive power of individualdisliltes and prepossessions.”147 Thejudicial temperament challenges a judge’sinternal views because it will “broaden thegroup to which his subconscious loyaltiesare due.”148 Justice Felix Frankfurterechoed Cardozo’s judicial temperamentin the unanimous 1952 United StatesSupreme Court case of Rochin v.California149:

To practice the requisite detachmentand to achieve sufficient objectivity no

145 The Oxford English Dictionary, 2d ed., s.v.“impartiality”.

146 Benjamin Cardozo, The Nature of theJudicial Process (New Haven: Yale UniversityPress, 1921) at 176. Discussed in Russell, The

Judiciary in Canada, supra note 23 at 87.147 Ibid.148 Ibid.149 Rochin v. California, (1952) 342 U.S. 165,

72 S.Ct. 205 [Rochin cited to U.S.].


doubt demands of judges the habit ofself-discipline and self-criticism, incer-titude that one’s own views are incon-testable and alert tolerance toward viewsnot shared.150

As legal realists, Justices Cardozo andFrankfurter concluded that all judges heldinternal preconceptions from theirexperience. In grappling with thereconciliation of this internal bias withimpartiality, they emphasized a relativistapproach. Judges are to demonstrate“sufficient objectivity” in decision-making,achievable by practicing the “requisitedetachment” from one’s personalviews.151 However, Justice Cardozoconceded that “[n]ever will these loyaltiesbe utterly extinguished while humannature is what it is.”152

The defects of actual impartiality in anadjudicative context lie in the concept’sfactual indeterminacy and the under-standing that all humans possess partialaffections. These challenges are bestovercome by substituting actual impar-tiality with a perception of impartiality.Given that impartiality can never befactually determined, nor does it appearto be humanly possible, its perceptionsupplies the necessary legitimacy to thirdparty decision-making. Stated simply, theperception of impartiality is the best thathuman institutions can achieve. Theperception of impartiality takes intoaccount that all humans hold internalviews, but such views must not be seento manifest themselves in the process ofadjudication. Any action or status of thejudge that, in the eyes of the litigants orthe broader community, casts doubt onadjudicative fairness or reveals a personalinterest in the outcome of the decisiondiminishes the appearance of impartiality.

A preference for the perception of impar-tiality as opposed to actual impartialitywas realized by the ancient Egyptians.Most notably, the pharaoh directed hisvizier to show impartiality as opposed tobeing impartial in fact:

It is an abomination of the god to showpartiality. This is the teaching: thou shaltdo the like, shalt regard him who is knownto thee like him who is unknown to thee,and him who is near… like him who isfar… Do not avoid a petitioner, nor nodthy head when he speaks.153 If the judgenodded while one party spoke, litigantswere likely to perceive the judge as partial.Support for the perception of adjudicativeimpartiality was also offered by Hobbesin the Leviathan:

For the same reason no man in anyCause ought to be received for Arbitrator,to whom greater profit, or honour, orpleasure apparently ariseth out of thevictory of one party, than of the other...154

Hobbes? use of the word “apparently”demonstrates his concern with theappearance of adjudicative impartiality tothe litigants and the broader community.Under the social contract, a decision-maker can only possess legitimacy if heis seen a genuine third party to the issuesand the parties. If litigants learn of thejudge’s personal interest in the outcomeof the case, the perception of impartialityis lost and the decision-maker lackslegitimacy to decide the dispute. Whileextraordinary adjudicators may becapable of making fair decisions in caseswhere they have a personal interest intheir decision, a disappointed party hasno obligation to accept the judgment of adecision-maker who is not a genuine thirdparty to the dispute.

150 Ibid. at 171-72.151 Ibid.152 Cardozo, supra note 123.

153 Breasted, supra note 51 at 665-68.154 Hobbes, supra note 84 at 87. Emphasis

added.


1. Hidden Bias and the Perceptionof Impartiality

If the perception of impartialityreplaces actual impartiality, why shouldjudges strive to decide cases fairly if theycan simply convince others that this iswhat they are doing? The perception ofimpartiality appears to open the door forjudges to maintain hidden biases towardthe issues or the parties; judges cansimply conceal their interests andprejudices to preserve their legitimacy.This is a real possibility in individualcases; however, the viability of asurreptitious noble lie, where judicialinstitutions engage in a public conspiracy,is unlikely for several reasons.155 First, amassive hoodwinking is liable to exposuresimply because of its sheer complexity.In order to pull off a noble lie ofadjudicative impartiality, an elite cadre ofjudges would have to possess consi-derable foresight to hide their interestsand prejudices from litigants and thecommunity. Moreover, the maintenanceof secrecy would require the participationof every person with knowledge of theconspiracy; none could stand to gain morefrom its disclosure than its concealment.Second, records of judicial proceedingswould likely reveal specific interests ofdecision-makers. For example, a patternof deciding against litigants wearing blueties may suggest the existence of a biasagainst blue ties. Third, the considerablerisk of the noble lie scenario makes itunattractive from the outset. Participantsin the conspiracy would have to acceptthe possibility of inadvertent disclosurewith the knowledge that such a revelationwould have devastating consequences.It seems unlikely that all decision-makers

would agree to take on the risk of thishigh-stakes gamble.

Conspiracy theories aside, individualjudges are apt to act upon their generaldispositions. The influence of a judge’sworldview on the process of decision-making ranges from minimal todeterminative. By practicing the judicialtemperament advanced by JusticesCardozo and Frankfurter, judges canminimize the adjudicative impact of theirpartial affections. Since the perception ofimpartiality on its own provides no reasonfor judges to challenge their internalviews, motivation is required from anothersource. For example, professional judicialtraining can demonstrate the value ofadjudicative impartiality. Judgescommitted to an ethic of impartialityencourage the development of the law bycarefully considering other points of viewand novel arguments. However, itremains possible for judges to decidecases on their predetermined views aslong as they come across as impartial.While the perception of impartiality cannotguarantee that judges will strive to actimpartiality instead of concealing theirinterests, its value as the legitimizing forceof third party adjudication outweighs thedisadvantages of hidden bias in individualcases. As demonstrated earlier, apeaceful society requires a mechanismto determine conflicts that inevitably arisebetween self-interested persons. Theeffectiveness of this mechanism dependsupon its acceptance by the parties; inother words, a disappointed litigant mustaccept that the decision finally ends thedispute. The perception of impartialitysupplies the mechanism of third partyadjudication with the legitimacynecessary to fulfill this essential role.

155 The noble lie scenario originates from Plato’sThe Republic, where a plan is devised to convincethe population that they are constituted fromdifferent metals, and thus belong to different

classes. See Plato, The Republic, 2nd ed., trans.by Desmond Lee (London: Penguin Classics, 2003)at 115-17.


B. UNQUALIFIED JUDICIAL INDE-PENDENCE

A series of international instrumentssets out the recognition of judicialindependence by the internationalcommunity. The tenth article of the 1948Universal Declaration of Human Rightsestablishes that “[e]veryone is entitled infull equality to a fair and public hearingby an independent and impartial tribunal,in the determination of his rights andobligations”.156 Similarly, the 1966 Inter-national Covenant on Civil and PoliticalRights recognizes the right of “all persons”to be treated equally before the courts.157

Article fourteen states that “[i]n thedetermination of any criminal chargeagainst him, or of his rights and obliga-tions in a suit at law, everyone shall beentitled to a fair and public hearing by a

competent, independent and impartialtribunal established by law.”158 Otherinternational instruments, such as the1948 American Declaration of the Rightsand Duties of Man159, the 1950 EuropeanConvention on Human Rights160, the 1969American Convention on HumanRights161, and the 1981 African Charteron Human and Peoples? Rights162 referto the right to access an independent orimpartial court.

Although these instruments evidencethe international community’s support ofjudicial independence, they do notconsider what is practically necessary toachieve an independent judiciary. In 1983,Quebec Chief Justice Deschênesorganized the World Conference on theIndependence of Justice to provide furtherclarification.163 The Conference partici-

156 Universal Declaration of Human Rights,adopted by the United Nations General Assemblyresolution 217 A (III) of 10 December 1948, art. 10,online: <http://www.un.org/Overview/rights.html>.

157 International Covenant on Civil and PoliticalRights, adopted by the United Nations GeneralAssembly resolution 2200A (XXI) of 16 December1966, entry into force 23 March 1976 in accordancewith Article 49, art. 14, online: <http://www.unhchr.ch/html/menu3/b/a_ccpr.htm>.

158 Ibid. at art. 14.159 American Declaration of the Rights and

Duties of Man, adopted by the Ninth Conference ofAmerican States in Bogota, Columbia 1948, art. 26,online: Human & Constitutional Rights <http://www.hrcr. org/docs/OAS_Declaration/oasrights.html>: “Every person accused of an offense hasthe right to be given an impartial and public hearing,and to be tried by courts previously established inaccordance with pre-existing laws, and not toreceive cruel, infamous or unusual punishment.”

160 European Convention on Human Rights,adopted by the Members of the Council of Europein Rome on 4 November 1950, art. 6(1), online:Hellenic Resources Network <http://www.hri.org/docs/ECHR50.html>: “In the determination of hiscivil rights and obligations or of any criminal chargeagainst him, everyone is entitled to a fair and publichearing within a reasonable time by an independentand impartial tribunal established by law…”.

161 American Convention on Human Rights,agreed to at the Inter-American SpecializedConference on Human Rights in San Josi, Costa

Rica on 22 November 1969, art. 8, online: Human& Constitutional Rights <http://www.hrcr.org/docs/American_Convention/oashr.html>: “1.Everyperson has the right to a hearing, with dueguarantees and within a reasonable time, by acompetent, independent, and impartial tribunal,previously established by law, in the substantiationof any accusation of a criminal nature made againsthim or for the determination of his rights andobligations of a civil, labor, fiscal, or any othernature.”

162 African Charter on Human and Peoples’Rights, adopted 27 June 1981, in force 21 October1986, art. 7(1), online: Human & ConstitutionalRights <http://www.hrcr.org/docs/American_Convention/oashr.html>: “Every individual shallhave the right to have his cause heard. Thiscomprises:… (d) the right to be tried within areasonable time by an impartial court or tribunal.”

163 The preamble to the Principles state:Whereas the Universal Declaration of Human

Rights enshrines in particular the principles ofequality before the law, of the presumption ofinnocence and of the right to a fair and publichearing by a competent, independent and impartialtribunal established by law, Whereas theInternational Covenants on Economic, Social andCultural Rights and on Civil and Political Rights bothguarantee the exercise of those rights, and inaddition, the Covenant on Civil and Political Rightsfurther guarantees the right to be tried without unduedelay… Supra note 4.


pants adopted a declaration on judicialindependence entitled the BasicPrinciples on the Independence of theJudiciary. The Principles were subse-quently endorsed by both the SeventhUnited Nations Congress on thePrevention of Crime and the Treatmentof Offenders and the General Assembly.According to the preamble, the Principlesare to “assist Member States in …securing and promoting the indepen-dence of the judiciary”.164 Given thispurpose, one would expect the Principlesto provide guidance on the necessary anddesirable level of judicial independence.

Instead, the Principles set out anunqualified definition of judicial inde-pendence that raises complex questionsabout judicial independence.165 Althoughthe Principles identify characteristics ofan independent judiciary as a startingpoint, they avoid answering many salientquestions. The Principles? first articlerequires each state to guarantee judicialindependence in its constitution ordomestic law, and admonishes allgovernment institutions to respect theindependence of the judiciary. Article twosets out the unqualified view of judicialindependence:

The judiciary shall decide mattersbefore them impartially, on the basis offacts and in accordance with the law,without any restrictions, improperinfluences, inducements, pressures,threats or interferences, direct or indirect,from any quarter or for any reason.166

Under the third article, judges possessjurisdiction over issues of a “judicialnature” and retain the “exclusive authority”to decide whether a matter falls withintheir jurisdiction.167 Article four provides

for independence in the process ofadjudication: “There shall not be anyinappropriate or unwarranted interferencewith the judicial process, nor shall judicialdecisions by the courts be subject torevision…”168 The fifth article requiresestablished legal procedures. Article sixattempts to clarify the concept of judicialindependence: “The principle of theindependence of the judiciary entitles andrequires the judiciary to ensure thatjudicial proceedings are conducted fairlyand that the rights of the parties arerespected.”169 The seventh article calls onstates to provide adequate resources tothe judiciary. Articles eight and nine permitjudges to freely express themselves andjoin associations, as long as theseactivities preserve judicial independence.Under article ten, judges are to possessthe appropriate qualifications in law. Thestate must also select judges withoutdiscrimination based on certainenumerated grounds. The remaining tenarticles identify characteristics of anindependent judiciary. Article elevenrequires terms of judicial office to be fixedby law. The twelfth article mandatestenure until a mandatory retirement ageor the term of office expires. Judicialpromotions must be made according toobjective criteria under the thirteentharticle. Article fourteen provides for theinternal assignment of judges to hearcases. Judges must maintain professionalsecrecy under article fifteen. Thesixteenth article calls for judicial civilimmunity. Article seventeen requires aformal and fair procedure to decidejudicial complaints. According to articleeighteen, judges can only be suspendedor removed when they are unfit to

164 Ibid.165 Professor Russell concludes that the

Principles are unrealistic. See Russell, “Toward aGeneral Theory of Judicial Independence”, supranote 3 at 12.

166 Supra note 4 at art. 2.167 Ibid. at art. 3.168 Ibid. at art. 4.169 Ibid. at art. 6.


discharge their duties. Establishedstandards of judicial conduct are to governjudicial disciplinary proceedings underarticle nineteen. Finally, article twentypermits an independent review ofdisciplinary proceedings.

In adopting an unqualified view ofjudicial independence, the internationalcommunity neglects to answer severalkey questions about judicial indepen-dence. What does independencepractically mean, and how do statesachieve it? One would be hard pressedto assess whether judges meet thedefinition of independence as establishedby the Principles. Influences inevitablyresult from a variety of sources. Judgesin states implementing the tencharacteristics of an independent judiciaryare not immune from all sources ofinfluence. Furthermore, corruption andpartiality can infiltrate judiciaries enjoyingthe strongest guarantees of indepen-dence, a possibility not specificallycontemplated by the Principles.170 In theevent that the Principles are interpretedas a norm requiring absolute inde-pendence, as opposed to establishinggeneral principles, states would have tocut off their judges from as much influenceas possible. What would an isolatedjudiciary look like? A judiciary approa-ching absolute independence wouldoperate as a considerably elitist insti-tution, disassociated from broadersociety. Judicial independence to thisdegree is not desirable since isolatedjudges would possess a limited contextby which to make their decisions andappear unsuitable to litigants seekingsympathetic decision-makers.

If the Principles are interpreted assetting out general principles that are to

be weighed against other principles, whatbalance is necessary to ensure judicialindependence? How far must states gobefore their judiciaries become sufficientlyindependent? By leaving the definition ofjudicial independence in unqualifiedterms, the Principles provide no answerto this key question. The extensiverecognition of judicial independence ininternational instruments reveals its value,yet the source of this value is notexpressly stated. While the drafters of thePrinciples may have presupposedimpartiality as the source of judicialindependence, identifying impartiality asthe purpose of independence would haveprovided guidance to “assist MemberStates in … securing and promoting theindependence of the judiciary”.171

Even though the Principles leave keyquestions on the nature of independenceunanswered, they require states toguarantee judicial independence in theirconstitutions or domestic laws.172 ThePrinciples also require judges to maintainthe power to determine the scope of theirjurisdiction over matters of a “judicialnature”.173 These provisions place judgesin the position of interpreters of their ownindependence. An unqualified view ofjudicial independence must then decidewhether to accept or reject impartiality asnecessary to judicial independence. Onone hand, the perception of impartialitymay be compromised where judgespossess exclusive legal authority todetermine the appropriate relationshipsbetween themselves and others,particularly where the principles providelittle guidance in their interpretation. Ifimpartiality is necessary for indepen-dence, judges interpreting the require-ments of judicial independence would no

170 Professor Russell writes that impartialitydoes not automatically result from judicialindependence. Russell, “Toward a General Theoryof Judicial Independence”, supra note 3 at 6-7.

171 Supra note 4.172 Ibid. at art. 1.173 Ibid.


longer be independent. On the other hand,if impartiality is not necessary for judicialindependence, the Principles admit thepossibility of independent judges whowould appear partial.

While the Principles adopted by theinternational community identify the keycharacteristics of an independent judiciarythat must be taken into account, andprovide a useful starting point inunderstanding the concept of judicialindependence, a more compellingtheoretical elaboration is required toanswer complex questions that arise.

A satisfactory alternative view mustdefine judicial independence in qualifiedterms and expressly identify a principleto determine the desirable degree ofindependence.

C. THE LINK BETWEEN IMPAR-TIALITY AND INDEPENDENCE

The preceding sections identifyimpartiality as the core principle of thirdparty decision-making. Adjudicativelegitimacy depends upon litigants and thecommunity perceiving judges as genuinethird parties to disputes. When consideredin the context of liberal democratic states,the perception of impartiality explains theneed for judicial independence. In liberaldemocracies, the state often appears asa litigant in a variety of contexts: statelawyers prosecute criminal actionsagainst individuals; individuals sue thestate in civil and constitutional matters;and various branches and levels ofgovernment disagree over theirrespective rights and obligations. Thesecases call upon adjudicators to makedecisions in conflicts between individualsand the state, and between various

emanations of the state. In these types ofcases, close connections between thejudiciary and a particular branch of thestate could give rise to the apprehensionthat judges may favour the state’sinterests, causing a loss of perceivedimpartiality. Since the legitimacy ofdecision-makers hinges on their status asgenuine third parties, individuals have noobligation to accept the decision of anadjudicator reasonably perceived asbeing in the pocket of the state.174 Forexample, an accused facing a criminalprosecution by the state could hardly befaulted for having little confidence in theadjudicative fairness of a judge whoseprospects for promotion are based onfavourable treatment toward the state. Inthis case, the accused needs assurancethat the judge does not stand to bepromoted by doing what is unfair ordemoted by doing what is fair.175

Judicial independence furnishes thisassurance by creating space between thejudiciary and others, allowing judges tomaintain their status as impartial thirdparties to the dispute. While judges aresubject to a wide range of influences intheir personal and professional lives, onlyinfluences from sources that thecommunity views as capable of interferingin the decision-making process areundue.176 Judicial independence acts asa prophylactic device to maintain theperception of impartiality that wouldotherwise be lost in the face of unre-gulated relationships between thejudiciary and others holding undueinfluence. In order to accomplish this task,both judges and judicial institutions mustbe sufficiently separated from sources ofundue influence to avoid the appre-

174 The same is also true for one level or branchof the state against another.

175 See Russell, “Toward a General Theory ofJudicial Independence”, supra note 3 at 10.

176 The judiciary can only be shielded from

undue influences, as opposed to others thatcontinue to exist. See John M. Williams, “JudicialIndependence in Australia” in Peter H. Russell &David M. O’Brien, eds., Judicial Independence inthe Age of Democracy, supra note 3, 173 at 181.


hension that such sources may receivefavoured adjudicative treatment.177 Bycreating sufficient space to maintain theperception of impartiality, the concept ofjudicial independence preserves thecommunity’s confidence in the judicialdetermination of disputes.178

Several key questions arise from theview of judicial independence as themeans to maintaining confidence inadjudication by separating the judiciaryfrom others. First, how much separationis required between the judiciary andsources of undue influence? Discoveringthe minimally necessary separation isrequired for assessing whether a judiciaryis sufficiently independent to maintain itslegitimacy. As the underlying objective ofjudicial independence, the perception ofimpartiality provides a yardstick tomeasure the required separation betweenthe judiciary and others.179 The minimumdegree of separation is satisfied whenboth litigants and the community perceiveadjudicative impartiality between thejudiciary and a particular source of undueinfluence. In other words, the judiciary

possesses the requisite independencefrom each source of undue influencewhen a reasonable observer from thecommunity would perceive adjudicativeimpartiality as a litigant against thatsource.

The use of a reasonable person fromthe community to determine the requiredseparation between the judiciary andsources of undue influence demonstratesthe relative nature of judicial inde-pendence.180 In a hypothetical scenariowhere all members of the communitypossess unwavering confidence in adju-dicative impartiality, separation betweenthe judiciary and others would beunnecessary. Despite this theoreticalpossibility, maintaining a perception ofadjudicative fairness in disputes againstpowerful interests is likely to require acertain degree of separation in mostcommunities.

At the high end of the separationspectrum, communities lacking faith intheir judicial institutions are apt to demandmore separation between the judiciaryand sources of undue influence. Litigants

177 Where this apprehension is reasonably heldby a member of the community as a potential litigantagainst the source of the influence, a loss ofconfidence would result since the judge is no longerperceived as impartial. Judges partial to the issuesor the parties lose their status as a genuine thirdparty. Under the Hobbesian social contract, judgesmust be genuine third parties in order to possessthe necessary legitimacy to decide the dispute.Therefore, the apprehension that a judge mayfavour an influence results in the loss of adjudicativelegitimacy.

178 Confidence is necessary for courts toeffectively perform adjudicative functions. SeeShimon Shetreet, “The Critical Challenge of JudicialIndependence in Israel” in Peter H. Russell & DavidM. O’Brien, eds., Judicial Independence in the Ageof Democracy, supra note 3, 233 at 239.

179 Professor Russell points out that therationale of judicial independence is key to knowingthe appropriate degree of independence. SeeRussell, “Toward a General Theory of Judicial Inde-pendence”, supra note 3 at 3-4, 9.

180 The reasonable person from the community

test is both subjective and objective: the constructionof the hypothetical reasonable person is objectivewhile the community to which this person belongsintroduces subjectivity. While a relativistic accountof judicial independence is devoid of fixed contentsince it can require different things in differentcommunities at different times, it would be a mistaketo view the concept of judicial independence asmeaningless. To the contrary, the concept of judicialindependence has a precise meaning:independence separates judges and otherspotentially holding undue influence to the extentnecessary to maintain a perception of impartiality.The content of judicial independence is subjective,determined by what is necessary for a reasonableperson from a particular community at a particulartime to perceive adjudicative impartiality. Therelativity of judicial independence is also recognizedby Professor Russell who writes, “One of the mostinteresting findings in comparative research maywell be variation in the relationships that areperceived to have the greatest bearing on judicialindependence in different states”: Ibid. at 4.


from such communities will suspectfavouritism between judges and othersunless a high degree of separationassuages their concerns. For example,judiciaries of emerging states that lack ahistory of producing just decisions provideno initial reason to believe in theiradjudicative fairness. In addition,judiciaries known to be easily corruptedby others require increased separationfrom the sources of corruption in order topreserve the community’s confidence.However, even the highest degree ofseparation between the judiciary andsources of undue influence cannot alwayssave the perception of impartiality.Perceptions are fragile like a house ofcards, liable to come tumbling down fromthe slightest disturbance. Informationsuggesting bias in a specific case orjudiciaries known to be rife with corruptiondestroys even the most independentjudiciary’s legitimacy. At the low end ofthe separation spectrum, communitiespossessing a tradition of confidence intheir judicial institutions, arising from ahistory of fair decision-making, requireless separation. While self-interestedlitigants from such communities willcontinue to scrutinize the relationshipsbetween judges and others, compa-ratively less separation between thejudiciary and sources of undue influenceis capable of supporting the community’sperception of adjudicative impartiality.

Second, what sources could exertundue influence over the judiciary? Theidentification of these sources is nece-

ssary to target key relationships betweenthe judiciary and others that are essentialto the perception of adjudicative impar-tiality. A survey of judiciaries from aroundthe world demonstrates the diversity ofapproaches to this task, producingdifferent sources of undue influence ineach state.181 These differences are likelythe result of both cultural and institutionalstructures unique to each statecommunity. The relativity of identifyingsources of undue influence by each statecommunity makes the construction of auniversal list of threats to adjudicativeimpartiality unrealistic; instead, sourcesof undue influence must be based on eachcommunity’s view of who presents a realrisk of interference. Once a source hasbeen identified, the community must thendetermine the points of interaction in therelationship between judges and thesource where the potential for undueinfluence would cause a loss ofconfidence in the judiciary. These pointsof interaction are concerning to litigantsbecause of the prospect of manipulationin the judicial process.

The relativity in identifying sources ofundue influence and the context in whichundue influence has the potential to ariseexplains the different views of judicialindependence across legal systems.182

For example, it is common for Germanjudges to be members of political parties,sit on city councils and even campaignfor political office.183 German judgesengaging in these activities are notautomatically considered subject to undue

181 While there are some commonalities in theidentification of threats to adjudicative impartialityin democratic states, the points of interactionbetween the judiciary and sources of undueinfluence that are seen to erode confidence in thejudiciary can vary significantly. See Peter H. Russell& David M. O’Brien, eds., Judicial Independence inthe Age of Democracy, supra note 3, for essaysdescribing judicial independence in the UnitedStates, Japan, Russia, states in post-communist

Central and Eastern Europe, Germany, England,Australia, South Africa, Israel and Central America.

182 See ibid. for essays describing judicialindependence in states around the world.

183 See, i.e. Donald P. Kommers, “Autonomyversus Accountability: The German Judiciary” inPeter H. Russell & David M. O’Brien, eds., JudicialIndependence in the Age of Democracy, supra note3, 131 at 137, 139.


influence by the state, whereas the activepolitical involvement by Canadian judgeswould be seen to undermine theiradjudicative impartiality.184

Third, how is the necessary separationbetween the judiciary and sources ofundue influence achieved? Measures ofjudicial independence are actions takento create space at the key points ofinteraction between judges and otherswith the goal of maintaining thecommunity’s confidence in adjudicativeimpartiality.185 These measures limitopportunities for undue influence byregulating the relationships betweenjudges, both individually andcollectively186, and sources of undueinfluence. A creative assortment ofmeasures can increase space betweenthe judiciary and others, such as legalguarantees to reduce the financialreliance of judges on sources of undueinfluence, the design of state institutionsto provide more autonomy todecision-makers and the requirement forjudges to relinquish connections withpowerful interests. Given the objective ofcreating space sufficient to maintain theperception of impartiality, the success ofmeasures undertaken must be based onthis goal and not by whether undueinfluence occurs in any individual case.187

It is unlikely that measures ofindependence can eradicate the factual

possibility of undue influence from anysource of undue influence. For example,a judge enjoying a high degree ofindependence from the state could stillface undue influence if personallythreatened by a senior state official. Atbest, measures of judicial independencepatrol the key points of interactionbetween judges and others to minimizethe possibility of undue influence.

Historical examples demonstratemeasures of independence targeting therelationships between judges and others.For example, in the context of ancientEgypt, measures of judicial independencewere enacted by the state in order tofoster a perception of impartiality that hadbeen weakened by rampant corruption.The pharoah Horemheb decreed severalmeasures to create space betweenjudges and wealthy litigants who hadbecome a source of undue influence,eroding confidence in the adjudication ofdisputes. These measures createdsufficient distance from the deep pocketsof wealthy litigants by establishing judicialsalaries; judges would no longer requirebribes as a source of income.188 Inaddition, Horemheb strengthened thefinancial independence of judges byexempting them from paying taxes.189

In contemporary liberal democracies,the community often sees the state as themost significant source of undue influence

184 The Canadian Judicial Council advises itsjudges that they must cease all political activity whenthey are appointed and “refrain from conduct that,in the mind of a reasonable, fair minded andinformed person, could give rise to the appearancethat the judge is engaged in political activity.” TheCouncil specifically requires judges to refrain fromvarious political activities such as membership inpolitical parties, political fundraising, attendingpolitical gatherings and events or contributing topolitical parties. See Canadian Judicial Council,Ethical Principles for Judges (Ottawa: CanadianJudicial Council, 2004) at 28-29.

185 Professor Russell writes that since impartial

minds cannot be manufactured, arrangements mustbe made to increase the separation between judgesand others. See Russell, “Toward a General Theoryof Judicial Independence”, supra note 3 at 8.

186 Individually, judges require separation fromother potential sources of undue influence, includingother members of the judiciary. Collectively, judicialinstitutions require separation in order to operatethe administrative aspects of the judicial processwithout perceived interference.

187 Of course, a pattern of undue influence islikely to erode the perception of impartiality.

188 Wilson, supra note 52 at 120-23.189 Ibid.


in the judicial decision-making process asit possesses extensive powers overjudicial appointment, remuneration,promotion, discipline, jurisdiction190 andsecurity. Given the interdependent natureof the relationship of the judiciary and thestate, litigants opposing the state are likelyto require assurance that judges possessthe autonomy to make their decisions freeof state pressure or interference. Each ofthe numerous interactions between thejudiciary and the state presents thepotential for interference. Measures ofjudicial independence provide thenecessary space at these criticaljunctures to ensure the community’sconfidence in adjudicative impartiality.191

For example, with respect to theremuneration of judges, a guarantee of anon-diminutive salary would assurelitigants that the judge has no reason tofear the state retaliating against anadverse decision by slashing the judge’searnings.

Enacting measures of judicialindependence to separate the judiciaryfrom state interference assumes that thefunctions of the judiciary, itself a branchof the state, and other state actors aredefined with sufficient precision to identifydistinctions between them. By analogy,in order to differentiate apples fromoranges one must be able to ascertaintheir differences, such as color, size,shape, texture and taste. The political

doctrine of separation of powers found inliberal democracies provides assistancein this endeavour by expressly delineatingthe capacities of each branch ofgovernment with the objective ofachieving a system of checks andbalances on the exercise of politicalpower.

For example, the constitution of theUnited States reserves the “judicialPower” to the judiciary as opposed to thelegislative or executive branches ofgovernment.192 However, adjudicationdoes not take place in a vacuum even instates purporting to constrain state actorsto watertight compartments. Otherbranches of government may have alegitimate role to play in the adjudicativeprocess to ensure the proper functioningof the state. While measures of judicialindependence must always provide thenecessary space at key points ofinteraction to maintain the community’sperception of adjudicative impartiality,they must do so in a way that takes intoaccount the proper roles of each organ ofthe state. The lack of bright lines betweenstate actors demands a special receptivityby the measures of judicial independenceto maintain their delicate interactions. Aparliamentary democracy, such asCanada, provides comparatively lessclarification in determining theconstitutional roles of each branch ofgovernment.193 The functioning of the

190 Jurisdiction is used in a broad sense,meaning both the types of cases that can be heardby judges and the role of the judiciary within theparticular state. The role of the judiciary has becomeincreasingly contentious in modern liberaldemocracies where courts have acceptedconstitutional invitations to fulfill a more political roleby making decisions between competing intereststhat have a direct effect on public policy. This newrole of the court has created a tension betweenjudicial independence, which requires a separationof the judiciary from the other branches ofgovernment, and the accountability, which requiresa democratic mandate for those making broad policydecisions. See “Independence and the Problem of

Accountability”, infra.191 Similarly, Professor Russell notes that

measures of judicial independence cannot coverall of the connections between the judiciary andothers. Russell, “Toward a General Theory ofJudicial Independence”, supra note 3 at 12.

192 United States Constitution, Article III,section 1.

193 While the Canadian constitution sets out thepowers of each level of government in its federalstructure, it fails to establish the functions of eachbranch of government, or even expressly identifydifferent branches of government. See Peter W.Hogg, Constitutional Law of Canada, 5 ed., vol. 1(Toronto: Thomson Carswell, 2007) at 1-3, 1-4.


Canadian state depends extensively onpolitical convention as opposed to aformal system of legal checks andbalances.194

The relative independence thesispresented in this section addresses theproblems identified with the unqualifiedview of judicial independence, thusproviding a more compelling theorizationof judicial independence. First, unlikeunqualified independence which sets outa general principle of complete libertyfrom all sources of influence, the relativeindependence thesis offers a realistic andpragmatic view of the relationshipsbetween the judiciary and others. Second,while unqualified independence fails toprovide direction to achieve sufficientjudicial independence, the relativeindependence thesis provides both themeans and a yardstick to realize desirableindependence. Third, unlike unqualifiedjudicial independence which createssignificant legal obligations withoutexpressly stating its underlying motiva-tion, relative independence clearlypresents its rationale which demonstratesthe necessity of certain measures ofjudicial independence. Finally, the relativeindependence thesis respects the properlimitations of a theoretical framework bynot advocating the incorporation of judicialindependence in the law of all states.Thus, the relative independence thesisdoes not automatically result in a conflictof interest unlike unqualified indepen-dence which presents a problem of judgesdefining the boundaries of their ownindependence.195

IV. INDEPENDENCE AND THEPROBLEM OF ACCOUNTABILITY

The recent enlargement of the judicialpower in many liberal democracies hasraised a tension between judicialindependence and the principle ofaccountability. Courts in these stateshave accepted an express or impliedconstitutional invitation to embark on apath seen as more political than judicial.This new role requires judges to choosebetween competing interests in cases thatraise issues of public policy, makingdecisions that directly influence politicaldiscourse and the policy-making powersof the legislative and executive branches.Professor Russell provides a concisesummary of the tension between judicialindependence and accountability:

[T]he growth of judicial power withinlong-established liberal democracies andthe assignment of major responsibilitiesto the judiciary in new or emerging liberaldemocracies raise the … question of howindependent a powerful judiciary can bewithout undermining democracy. Here theliberal principles of judicial independenceruns up against the democratic principleof accountability.196 It comes as nosurprise that the prospect of unelectedjudges acting as legislators raisesconcerns given that the choice betweencompeting interests has been traditionallyleft to those enjoying a popular mandate.

Compelling arguments to resolve thistension are made on both sides.Supporters of judicial independenceargue that the separation of the judiciaryfrom the other branches of governmentis required to check the political power of

194 A key political convention is the principle ofresponsible government that makes each stateactor accountable to Canadians. Ibid. at 9-1 to 9-3.

195 Although such a conflict of interest may belikely to arise in most states, it is not practical todeal with such a conflict in an abstract theoretical

way. Instead, solutions to a conflict of interest mustarise within the context of the particular state.

196 Russell, “Toward a General Theory ofJudicial Independence”, supra note 3 at 2.Footnotes omitted.


the other branches.197 From theirperspective, the fracturing of politicalpower in a liberal democracy requiresjudges to strike down democratic actionthat violates constitutional guarantees.However, judges are not free to fulfill thisessential role unless they are free fromthe state’s undue influence. By contrast,advocates of democratic principles arguethat an elitist judiciary striking down lawssubverts the will of the people. Judgestend to come from similar backgrounds,hold similar philosophies and simplyreplace democratically formulateddecisions with their own.198 Public policyenacted by individuals unaccountable todemocratic impulses can itself lead to acrisis of confidence if the populationrefuses to recognize or implement judicialdecisions that reject the democratic will.

There does not appear to be an easyresolution to this tension in states wherethe judiciary exercises significant politicalpower, and where tradition demands thatpolitical power be exercised according tothe democratic principle of accountability.The compromise struck in liberal demo-cracies facing this conflict reflects therelative values each community places onjudicial independence and accountability.While the debate over which principletakes priority continues, it needs to beremembered that measures of judicialindependence must, at a minimum, createthe necessary space between thejudiciary and sources of undue influenceto maintain the community’s confidencein the adjudication of disputes.

CHAPTER 2: JUDICIALINDEPENDENCE IN CANADA

I. THE DOCTRINE OF JUDICIALINDEPENDENCE

This section outlines developments inthe Canadian doctrine of judicialindependence. Given the nature ofCanada’s mixed constitution, beingcomprised of both written and unwrittenelements, judicial decisions are primarilyresponsible for the development of judicialindependence in Canadian law. While thewritten constitution provides for theindependence of judges in limitedcircumstances, the judiciary hasinterpreted these provisions as part of amuch broader unwritten constitutionalprinciple. This section presents relevantprovisions of the written constitution andthen turns to key decisions to flesh outthe doctrine of judicial independence.

Sections of the constitution provide forjudicial independence in specificcircumstances. The constitutionallyentrenched Charter of Rights andFreedoms199 guarantees the indepen-dence of tribunals exercising jurisdictionover persons charged with an offence.Section 11(d) of the Charter characterizesthis guarantee as a right belonging to theaccused: 11. Any person charged with anoffence has the right ... (d) to be presumedinnocent until proven guilty according tolaw in a fair and public hearing by anindependent and impartial tribunal;

197 See, i.e. A.E. Dick Howard, “JudicialIndependence in Post-Communist Central andEastern Europe” in Peter H. Russell & David M.O’Brien, eds., Judicial Independence in the Age ofDemocracy, supra note 3 at 89.

198 See, i.e. Andrew Petter, The Politics of theCharter (Toronto: University of Toronto Press)[publication forthcoming] at chapter 1, who observesthat judicial recruitment takes places from within asmall group of affluent middle-aged lawyers. Given

the judiciary’s homogeneity, it fails to reflect orunderstand the economically and sociallydisadvantaged, instead basing its decisions on aphilosophy of private ordering. Petter concludes thatdemocratic process is better positioned to reflectthese interests, pointing to a legislative record ofpublic interest initiatives.

199 Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (U.K.), 1982,c. 11.


In addition, the Constitution Act,1982200 establishes measures ofindependence for federally appointedsuperior court judges by guaranteeingtheir tenure and fixed salaries.201

These sections of the writtenconstitution paint an incomplete pictureof judicial independence in Canadian law;their judicial treatment is required to fullyunderstand the doctrine. Shortly after theenactment of the Charter in 1982, a seriesof Supreme Court of Canada decisionsbegan to develop a broader constitutionalprinciple of judicial independence. In the1985 case of R. v. Valente202, the Courtfirst considered the meaning of anindependent judiciary under the Charter.The case arose when the independenceof a provincial court was questioned inthe context of a criminal case. Writing forthe unanimous Court, Le Dain J.recognized the uncertainty surroundingthe Charter guarantee, admitting that the“concept of judicial independence hasbeen an evolving one.”203 After reviewingacademic commentary and the UnitedNations Basic Principles on theIndependence of the Judiciary, Le DainJ. held that an independent judiciary wasnecessary to ensure justice andconfidence in the administration ofjustice.204 The Court consideredindependence and impartiality to beclosely related, but distinct concepts.205

According to Le Dain J., impartialitymeans a state of mind free of actual orperceived bias, whereas independenceincludes both individual and institutional

relationships resting upon objectiveguarantees.206 These guarantees provideassurance that the tribunal can “act in anindependent manner and will in fact actin such a manner.”207 Le Dain J.concluded that a tribunal is independentunder the Charter when it is perceived aspossessing three essential conditions:security of tenure, financial security andinstitutional independence.208

Shortly after Valente, the SupremeCourt of Canada expanded the meaningof judicial independence in Beauregardv. Canada209 where a federally appointedjudge challenged legislation requiringjudges to contribute towards their pensionplan. On behalf of a majority of the Court,Chief Justice Dickson held that judicialindependence required the “completeliberty” of judges in deciding cases.210

Judicial independence must also take intoaccount the new role of the judge in aconstitutional democracy, which demandsmore than the “adjudication of individualcases”, judges are now called upon toprotect the constitution and its underlyingvalues by reviewing the exercise ofgovernmental power.211 In emphasizingthe importance of judicial independenceto this new role, Dickson C.J. describedit as the “lifeblood of constitutionalism indemocratic societies.”212 This rolerequires that judges “be completelyseparate in authority and function from allother participants in the justice system.”213

In the 1989 case of MacKeigan v.Hickman214, McLachlin J. delivered theopinion of a plurality of the Supreme Court

200 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C.1985, App. II, No. 5.

201 Sections 99 and 100 respectively.202 [1985] 2 S.C.R. 673, 24 D.L.R. (4th) 161

[Valente cited to S.C.R.].203 Ibid. at 686, 691.204 Ibid. at 689.205 Ibid. at 685.206 Ibid. at 685, 687, 689207 Ibid. at 688.

208 Ibid. at 694, 704, 708.209 [1986] 2 S.C.R. 56, 30 D.L.R. (4th) 481

[Beauregard cited to S.C.R.].210 Ibid. at 69.211 Ibid. at 70-71.212 Ibid. at 70.213 Ibid. at 73.214 [1989] 2 S.C.R. 796, 61 D.L.R. (4th) 688

[MacKeigan cited to S.C.R.].


of Canada on whether a judge could becompelled to testify at how a decision wasreached. In her reasons, McLachlin J.backtracked from Dickson C.J.’sunqualified definition of judicial indepen-dence in Beauregard, noting that thejudiciary must necessarily maintainrelationships with other branches of thestate:

It is important to note that what isproposed in Beauregard v. Canada is notthe absolute separation of the judiciary,in the sense of total absence of relationsfrom the other branches of government…It is impossible to conceive of a judiciarydevoid of any relationship to the legislativeand executive branches of government.Statutes govern the appointment andretirement of judges; laws dictate theterms upon which they sit and areremunerated. … It is inevitable andnecessary that relations of this sort existbetween the judicial and legislativebranches of government. The criticalrequirement for the maintenance ofjudicial independence is that the relationsbetween the judiciary and other branchesof government not impinge on theessential “authority and function”… of thecourt.215

Two years later, in the 1991 case ofR. v. Lippé216, the Supreme Court ofCanada considered whether a municipalcourt system employing part-time judgesmet the Charter requirements of anindependent tribunal. Writing for a unani-mous Court on this point, Chief JusticeLamer separated the legal doctrine ofindependence and impartiality. LamerC.J. held that judicial independenceserves the perception of impartiality:

The overall objective of guaranteeingjudicial independence is to ensure areasonable perception of impartiality;

judicial independence is but a “means” tothis “end”. If judges could be perceivedas “impartial” without judicial “indepen-dence”, the requirement of “indepen-dence” would be unnecessary. However,judicial independence is critical to thepublic’s perception of impartiality.Independence is the cornerstone, anecessary prerequisite, for judicialimpartiality.217

However, the Court split over LamerC.J.’s contention that judicial inde-pendence was limited to independencefrom the government; two judges agreedwith the Chief Justice’s restricted viewwhile four others preferred to interpretindependence as shielding judges fromall sources of influence.218

The leading 1997 Provincial JudgesReference219 case placed the issue ofjudicial independence and the interactionbetween the branches of the statesquarely before the Supreme Court ofCanada. During the economic recessionof the 1990’s, the governments of Alberta,Manitoba and Prince Edward Islandlegislatively reduced the salaries of publicsector employees as a cost-cuttingmeasure. These reductions included thesalaries of provincial judges. In Alberta,the independence of the provincial courtwas challenged by three accused. InManitoba, judges brought an actionchallenging the reduction of their salariesafter the executive negotiated directly withthe provincial judges association. InPrince Edward Island, the executivesubmitted a reference on the constitu-tionality of the salary reductions. Thesethree appeals were amalgamated into onecase before the Court.

On behalf of six of the seven judgeshearing the case, Chief Justice Lamercomprehensively explored the doctrine of

215 Ibid. at 827-28.216 [1991] 2 S.C.R. 114, 128 N.R. 1 [Lippé cited

to S.C.R.].

217 Ibid. at 139.218 Ibid. at 137-38, 152-53219 Supra note 9.


judicial independence, finding that thesalary reductions violated the guaranteeof an independent tribunal under section11(d) of the Charter. Lamer C.J. startedhis reasons by noting that the Courtneeded to “explain the proper rela-tionship” between the judiciary and theother branches of government to alleviatethe “strain on this relationship”.220 LamerC.J. observed that judicial independencewas not for the benefit of judges, but ratherto secure societal goals.221 One of thegoals of independence was the main-tenance of confidence in judicialimpartiality, “essential to the effectivenessof the court system.”222

Since the appeals at issue wereargued under the Charter, the Court feltcompelled to decide the case undersection 10(d).223 However, Lamer C.J.held that serious limitations emerged fromviewing the text of the Constitution as an“exhaustive and definitive code for theprotection of judicial independence.”224

The judiciary’s broad interpretation ofthese provisions in previous casesdemonstrated “a deeper set of unwrittenunderstandings which are not found onthe face of the document itself.”225

According to the Chief Justice, theConstitution does not authoritatively setdown fundamental rules in a set ofdocuments.226 Unwritten organizingprinciples are rooted in the Preamble tothe Constitution which states thatCanada’s Constitution is similar inprinciple to the unwritten constitution ofthe United Kingdom.227

These unwritten constitutional prin-ciples demonstrate the “special legaleffect” of the Preamble which fills in gapsin the express terms of the constitutionaltext.228 Lamer C.J. held that a foun-dational principle of judicial independencecould be traced back to the UnitedKingdom, flowing through the Preambleto the Constitution: I am of the view thatjudicial independence is at root anunwritten constitutional principle, in thesense that it is exterior to the particularsections of the Constitution Acts. Theexistence of that principle, whose originscan be traced to the Act of Settlement of1701, is recognized and affirmed by thepreamble to the Constitution Act, 1867...

Judicial independence is an unwrittennorm, recognized and affirmed by thepreamble to the Constitution Act, 1867.In fact, it is in that preamble, which servesas the grand entrance hall to the castle ofthe Constitution, that the true source ofour commitment to this foundationalprinciple is located.229

The Chief Justice found that judicialindependence was part of the separationof powers doctrine since it insulated thecourts from interference by the otherbranches of government.230

While reductions to the remunerationof provincial judges do not automaticallyinfringe judicial independence, theConstitution requires that changes pro-ceed through an “independent, objectiveand effective” process to avoid theappearance of political interference anda loss of confidence in the judiciary.231

220 Ibid. at para. 8.221 Ibid. at para. 9.222 Ibid. at para. 10.223 Ibid. at para. 82.224 Ibid. at para. 85.225 Ibid. at para. 89.226 Ibid. at para. 92.227 Ibid. at paras. 94-104. The relevant part of

the Preamble states: Whereas the Provinces ofCanada, Nova Scotia, and New Brunswick have

expressed their Desire to be federally united intoOne Dominion under the Crown of the UnitedKingdom of Great Britain and Ireland, with aConstitution similar in Principle to that of the UnitedKingdom…

228 Ibid. at para. 104.229 Ibid. at paras. 83, 109.230 Ibid. at para. 130.231 Ibid. at para. 133.


This special process involves anindependent compensation commissionto recommend the appropriate level ofjudicial remuneration.232 While thecommission process is mandated by theConstitution, Lamer C.J. found that thedesign, procedures and arrangements ofthe commissions should be left to thelegislative and executive branches.233

Even though the compensation commi-ssion’s recommendations are not binding,the government must justify a decision todepart from them.234 Lamer C.J. stronglycautioned that it is never possible for thejudiciary to negotiate directly with otherbranches of the state.235 Such nego-tiations are “fundamentally at odds withjudicial independence” because ofhorse-trading involved in negotiationsover remuneration.236 Furthermore, sincethe Crown is often a litigant before thecourt, negotiations between the judiciaryand the legislative or executive branchesresult in a conflict of interest.237 Inaddition, the salaries of judges cannot bereduced by the government below acertain threshold which would make thejudiciary susceptible to economicmanipulation.238

In elaborating the relationship betweenthe principle of judicial independence andthe separation of powers, the ChiefJustice held that section 11(d) of theCharter must be interpreted to protect theseparation between powers of the state.This separation requires the exclusivereservation of certain functions toparticular branches of government.239

However, Lamer C.J. acknowledged theinevitable interaction between stateactors. For example, the executive branchis constitutionally obligated to implementpolicies enacted by the legislativebranch.240 Separation of powers requiresthe relationships between the judiciary onone hand and the legislative andexecutive branches on the other to bedepoliticized: the legislative and executivebranches cannot be seen to exertpressure on the judiciary.241 While theinteraction between branches of the stateis primarily governed by convention,conventions do not have the force of lawand therefore the Charter must establishconstitutional requirements for theserelationships.242

In a strongly worded dissent, La ForestJ. attacked the majority’s discussion ofjudicial independence as an unwrittenconstitutional principle on the basis thatthe appeals were argued primarily underthe Charter.243 According to La Forest J.,public confidence in the judiciary rests onjudges responding to legal disputes asopposed to initiating legal recourse.244

[Judges] respond to grievances raisedby those who come before them seekingto have the law applied, listening fairly tothe representations of all parties, alwayssubject to the discipline provided by thefacts of the case. This sustains theirimpartiality and limits their powers. Unlikethe other branches of the government, thejudicial branch does not initiate mattersand has no agenda of its own. Its soleduty is to hear and decide cases on the

232 Ibid.233 Ibid. at para. 167. Though Lamer C.J. sets

out binding comprehensive guidelines for thecreation of the commissions in any event. See ibid.at paras. 169-185, 287.

234 Ibid. at para. 133. Lamer C.J. writes thatwhere the government singles out judges in a paycut, the justification required for departing from thejudicial remuneration commission’s will be “heavy”.

235 Ibid. at para. 134.

236 Ibid.237 Ibid. at para. 187.238 Ibid. at para. 135.239 Ibid. at para. 139.240 Ibid.241 Ibid. at para. 140.242 Ibid. at para. 141.243 Ibid. at para. 297.244 Ibid. at para. 300.


issues presented to it in accordance withthe law and the Constitution.245

La Forest J. viewed the majority’sopinion as defining the properrelationships between the branches ofgovernment without the benefit ofarguments on point. Given thisconsideration, the majority of the Court“can hardly be seen to be indifferent,especially as it concerns their ownremuneration.”246 Furthermore, it is criticalto “remember that judicial independenceis not an end to itself. Independence isrequired only insofar as it serves to ensurethat cases are decided in an impartialmanner.”247 La Forest J. concluded thatthe salary reductions would not havecaused a reasonable person to perceivea lack of independence.248

In the 2002 case of Mackin v. NewBrunswick (Minister of Finance)249 theSupreme Court of Canada again adoptedan unqualified view of judicialindependence. On the facts of the case,New Brunswick supernumerary judgeschallenged the elimination of their officeas a violation of judicial independence.Writing for a majority of the Court,Gonthier J. noted that the constitutionalprinciple of judicial independence wasessential to a properly functioningdemocratic state.250 Citing the UnitedNations Basic Principles on theIndependence of the Judiciary, GonthierJ. held that judges must be “completelyindependent of any other entity in theperformance of his or her judicialfunctions.”251 The relationship betweenjudges and others must be defined by an“intellectual separation” so that decisionscan be made solely on the requirements

of law and justice.252

II. CRITIQUE OF THE DOCTRINE OFJUDICIAL INDEPENDENCE

This section critiques the doctrine ofjudicial independence in Canadian lawfrom the perspective of the theoreticalframework developed in Chapter 1, withparticular emphasis on the ProvincialJudges Reference case.

The Supreme Court of Canada’sunqualified view of the principle of judicialindependence results in an impracticalconstitutional doctrine in Canadian law.When considering the independence ofthe judiciary, the Supreme Court ofCanada has frequently invoked the UnitedNations Basic Principles on theIndependence of the Judiciary tocharacterize independence asunqualified. First mentioned in R. v.Valente, the Court expressly adopted anunqualified definition of judicialindependence when it held that thejudiciary required “complete liberty” inBeauregard v. Canada.253 In his elaboratedescription of the judge as a nobleprotector of the Constitution, Chief JusticeDickson held that judicial independencerequired the complete separation ofjudges from all sources of influence.254

While the Court backtracked considerablyfrom this position in MacKeigan v.Hickman, where it held that judicialindependence was only necessary foressential judicial functions, the Court mostrecently returned to this view in Mackinv. New Brunswick (Minister of Finance).

As demonstrated by the framework setout in Chapter 1, practical requirements

245 Ibid.246 Ibid. at para. 302.247 Ibid. at para. 332.248 Ibid. at para. 342.249 [2002] 1 S.C.R. 405, 209 D.L.R. (4th) 564

[Mackin cited to S.C.R.].

250 Ibid. at para. 34.251 Ibid. at para. 35.252 Ibid. at para. 37.253 Supra note 186 at 69.254 Ibid. at 73.


to achieve judicial independence areimpossible to define under the view ofjudicial independence as unqualified.Furthermore, the Supreme Court ofCanada comes dangerously close tointerpreting general principles of judicialindependence as an absolute norm. Theimpracticality of this position isdemonstrated by the Supreme Court ofCanada’s circular definition of judicialindependence in R. v. Valente, where theLe Dain J. held that the Charter guaranteeof independence requires courts to act inan “independent manner”.255 Given thatjudges are subject to numerousinfluences, judicial independence musttarget the key points of interactionbetween the judiciary and sources ofundue influences that are seen as capableof interfering in the decision-makingprocess. These points of interaction havethe most impact on the perception ofadjudicative impartiality.

Despite its adoption of unqualifiedindependence, and unlike the interna-tional community, the Supreme Court ofCanada has clearly expressed therationale of independence as ensuringconfidence in the adjudication of disputes.For example, in R. v. Valente, the Courtheld that the purpose of independencewas to promote confidence in theadministration of justice.256 More explicitlyin R. v. Lippé, Chief Justice Lamer notedthat the purpose of independence was toserve the end of a perception ofimpartiality.257 Similarly, in the ProvincialJudges Reference case, the Courtrecognized judicial independence asnecessary to maintain confidence injudicial impartiality.258 Regrettably, the

application of judicial independence toconcrete cases reveals this rationale asnothing more than empty rhetoric. InProvincial Judges Reference, afterdetermining that the Constitution requireda compensation commission process, theCourt dressed up its opinion in the clothesof public confidence. Without anyevidence in support of his position, ChiefJustice Lamer declared that the absenceof a compensation commission wouldlead to a lack of confidence in theadjudicative process.259 This contentionappears to be without merit given that areasonable person from the Canadiancommunity is unlikely to think thatprovincial judges would start convictinginnocent persons to curry favour with thestate because of an across-the- board paycut.260 Therefore, while the judiciaryproperly identified confidence inadjudicative impartiality as the underlyingrationale of judicial independence, it failedto use this rationale to inform andconstrain its independence.

Furthermore, by invoking an unwrittenconstitutional principle in the ProvincialJudges Reference case where theperception of adjudicative impartiality wasnot impaired, the Supreme Court ofCanada muddied the doctrinal waters ofjudicial independence. The case law failsto reveal a clear standard by which toassess the constitutionality of actiontouching upon the judiciary. Thisuncertainty has the potential to chill therelationship between the judiciary on onehand and the legislative and executivebranches on the other, particularly givenLamer C.J.’s holding that judicialindependence defines the “proper

255 Supra note 179 at 688.256 Ibid. at 689.257 Supra note 193 at 139.258 Supra note 9 at para. 10.259 Ibid. at 186.

260 See Hogg, supra note 11. According toAngus Reid, 78% of Canadians trust judges: “FireFighters Top Canada’s Most Trusted List” AngusReid Global Monitor: Polls & Research (25 March2006), online: Angus Reid <http://www.angus-reid.com/polls/view/11338>.


relationship” between the judiciary andother branches of the state.261 Facing ajudiciary patrolling the interactionsbetween the judiciary and the otherbranches of government, under theauthority of an uncertain constitutionalprinciple, the legislative and executivebranches are likely to tread cautiously indealing with the judiciary.

This retreat of the legislative andexecutive branches is problematic giventhat the judiciary relies on the otherbranches of government to enactmeasures of independence. Without thesupport of the legislative and executivebranches, the judiciary becomes sepa-rated from the key protectors of its inde-pendence. Since the judiciary possessesjurisdiction only when petitioned bylitigants involved in a legal dispute, itremains susceptible to undue influenceand manipulation from a variety ofsources. While the judiciary has alegitimate interest in maintaining publicconfidence by ensuring sufficientseparation in key points of interaction withothers, legislative and executive action isrequired to protect judicial independenceand ensure the proper operation of thejudicial process. McLachlin J. noted thisvital relationship in MacKeigan v.Hickman when she held that it was“impossible to conceive of a judiciarydevoid of any relationship to the legislativeand executive branches of government.”262

The ex post facto legal review of theinteraction between the judiciary andother state actors is particularly ill suitedto the Canadian context, where informalconventions regulate the relationsbetween constitutional actors.263 In theProvincial Judges Reference case, Chief

Justice Lamer noted that the non-legalstatus of conventions did not sufficientlyguarantee judicial independencenecessary to maintain public confi-dence.264 Unfortunately, this approachboth misstates the perspective of theCanadian public and misunderstands theimportance of the dynamic character ofthe interactions between branches of thestate. First, a tradition of functionalinteraction between the judicial, legislativeand executive branches, coupled with ahistory of fair judicial decision-making,has provided Canadian litigants withreason to possess a high level ofconfidence in their judicial institutions.Absent information revealing bias orundue pressure in a specific case, areasonable litigant from the community islikely to presume judicial impartiality, evenwhere the relationships between thejudiciary and others are governed byconvention. In the words of La Forest J.:

It is simply not reasonable to think thata decrease to judicial salaries that is partof an overall economic measure whichaffects the salaries of substantially allpersons paid from public funds imperilsthe independence of the judiciary. To holdotherwise is to assume that judges couldbe influenced or manipulated by such areduction. A reasonable person, I submit,would believe judges are made of sturdierstuff than this.265 Second, the flexibility ofconstitutional conventions permit them tochange over time to meet new circum-stances and challenges, making themwell suited to the changing requirementsof judicial independence. The conversionof these constitutional conventions intobinding legal rules freezes the relation-ships between the branches of the state,making the judiciary the supreme rulerover this interaction.

261 Provincial Judges Reference, supra note 9at para. 8.

262 Supra note 191 at 827-28.263 See Hogg, Constitutional Law, supra note

170 at 1-21 to 1-30, 9-3.264 Supra note 9 at 141.265 Ibid. at 337.


However, the most troubling aspect ofthe doctrine of judicial independence inCanadian law is the damage that theProvincial Judges Reference caseinflicted on the perception of adjudicativeimpartiality. The decision unleashed anunprecedented storm of academiccriticism.266 Commentators viewed thedecision as greedy and self-serving sinceprovincial judges received large salaryincreases after the implementation of thecompensation commission processdemanded by the Supreme Court ofCanada.267 These accusations arise fromthe perceived conflict of interest betweenthe Court’s role as the decision-maker ina case where the judicial branch appearedas a litigant. Even operating under theassumption that the judges actedimpartially, the obvious conflict of interestand the resulting substantial legalobligations imposed on the legislative andexecutive branches diminished confi-dence in adjudicative impartiality. Howcould the legislative and executivebranches have faith in the fairness ofjudges hearing a case about the financialcompensation of judges? Even thoughjudiciaries in a liberal democracy mustdecide claims against the state, they mustalso maintain their status as third partiesto the dispute in order to preserve theirlegitimacy.

According to Hobbes, adjudicatorsappearing to gain from the outcome of adecision take an unavoidable bribe in thesense that there is an inherent conflict ofinterest.268 Since persons are presumedto do everything in their own interest, the

Hobbesian social contract theoryconcludes that no man is a fit adjudicatorin his own dispute.269 Judges in a conflictof interest can no longer claim legitimacyas third parties to the dispute. While therelationships between the branches ofgovernment are best governed byconvention as opposed to formal rules,disputes are increasingly ending upbefore judges as conventions becomeinterpreted as legal rules. The questionis whether the judiciary can maintain theperception of impartiality, and itslegitimacy as a third party, in cases wherejudges appear as litigants against otherbranches of the state.

A solution to this problem was firstproposed by Michael Plaxton.270

According to Plaxton, distinguishingbetween constitutionally mandated rulesand prophylactic rules could preserve theCourt’s legitimacy when facing anunavoidable conflict of interest.271 Pro-phylactic rules are directives fashioned byjudges to prevent violations of theConstitution. Unlike ordinary constitu-tional rules, prophylactic directives are notmandatory if the state devises an alter-native method of fulfilling its constitutionalobligations.272 Prophylactic rules presentjust one of several possible strategies toachieve a constitutional end, thusproviding a role for non-judicial actors tofashion ways of protecting substantiveconstitutional requirements.273 Anexample of a prophylactic rule is theinfamous case of Miranda v. Arizona274,where the United States Supreme Courtheld that an the police must inform

266 See especially Jean Leclair, “Canada’sUnfathomable Unwritten Constitutional Principles”(2002) 27 Queen’s L.J. 389, Jean Leclair andYves-Marie Morissette, “L’indépendance judiciaireet la Cour suprême: reconstruction historiquedouteuse et théorie constitutionnelle decomplaisance” (1998) 36 Osgoode Hall L.J. 485 andHogg, supra note 11.

267 Supra note 12.

268 Supra note 84 at 87.269 Ibid.270 Supra note 15.271 Ibid. at 130-32, 138-43.272 Ibid. at 130-32.273 Ibid. at 130.274 Miranda v. Arizona, (1966) 384 U.S. 436,

86 S. Ct. 1602.


arrested persons of their right to remainsilent, and that anything said may beadduced against them in evidence at theirtrial. The Court devised this warning as away to protect the underlying constitu-tional right against self-incrimination.However, since the “Miranda warning” isnot expressly required by the Constitution,it is not obligatory where the state findsalternate ways of protecting theunderlying right. In other words, whilefollowing the Supreme Court’s directiveensures compliance with the Constitution,it may not be the only acceptable courseof action. In a case where an accused wasnot warned, the court must decidewhether any statements made to thepolice were made voluntarily.

Prophylactic rules are well suited tothe Canadian constitutional context asthey encourage dialogue and promoteconventions to regulate interactionbetween the branches of government.The Court’s decision is not seen as thefinal word if the political will exists todevise an alternative strategy. Withrespect to the Provincial JudgesReference case, Plaxton writes:

Had the Court recognized prophylacticrules, it would have regarded itself asbound either to justify its claim that thestrategy generated in [Provincial JudgesReference] is dictated by the terms of theconstitution (knowing that its reasonswould undergo scrutiny and possiblechallenge at a later date), or to concedethat the strategy is strictly prophylactic.In making that concession, the Courtwould have invited provincial legislaturesto examine strategies that would havefulfilled their constitutional responsibilitieswithout guaranteeing perfect publicconfidence in the independence of judges.Such strategies might well have involvedmore direct interaction between the

judiciary and the legislative branch. Onthe other hand, provincial legislaturesmight have concluded that they shouldhave precisely the sort of commissionsprescribed in [Provincial JudgesReference]. That would have been theirdecision to make, for better or forworse.275 The use of prophylactic rulesby the Supreme Court of Canada inProvincial Judges Reference would haveinitiated a dialogue with the legislative andexecutive branches, and involved themin the decision-making process. Thesebranches of government would then haveto decide whether to follow the Court’sdirective or come up with a different wayof setting judicial salaries that protectedjudicial independence. While a conflict ofinterest cannot be avoided where thejudiciary appears as a litigant, theresolution of the dispute through dialoguebetween the branches of governmentavoids placing the judiciary in the positionof a biased decision-maker.

CONCLUSION

The conceptual framework set out bythis thesis considered key issues andanswered complex questions of judicialindependence with the goal of unlockingits most significant problems. Chapter 1addressed the confused theoretical stateof judicial independence by setting out aframework from within which furtherresearch and discussion can take place.The search for the theoreticalunderpinnings of judicial independencecommenced with a detailed inquiry intothe often-neglected early history ofadjudication. This inquiry demonstratedthe dawn of a tradition of impartiality inancient Egypt, now a core principle ofwestern legal traditions. The developmentof impartiality in ancient Egypt helped to

275 Ibid. at 143. Footnotes omitted.


explain impartiality as the rationale ofjudicial independence. Hobbesian socialcontract theory further confirmed theimportance of impartiality to adjudication.Under the social contract, men give upcertain liberties that they previouslyenjoyed including the right for a man tojudge his own disputes. This necessarilyresults in third party adjudication toresolve legal conflict. Decision-makersshowing partiality no longer act as thirdparties to the dispute.

The unqualified view of judicialindependence advanced by the interna-tional community neglected to answerseveral key questions about judicialindependence. The practical meaning ofindependence, and how states are toachieve it, remains unclear. Unqualifiedindependence presented several inter-pretation difficulties, particularly theweighing of judicial independence againstother principles. In order to maintain theperception of impartiality, the judiciarymust be perceived as independent fromundue influence. Under this view, thejudiciary possesses the requisite inde-pendence when a reasonable observerfrom the community would presumeadjudicative impartiality. Given the rela-tive nature of independence, judiciariesenjoying long-established traditions of thecommunity’s confidence require lessformal protection than those in emergingdemocracies or those whose membersare known to be corrupt. Measures ofjudicial independence limit opportunitiesfor undue influence by creating spacebetween the judiciary and others. Thesemeasures regulate relationships whereundue influence is most likely to arise. Thegrowth of judicial power in many liberaldemocracies raises questions aboutjudicial independence and whether itundermines democratic principles. Thereis no easy resolution to this tensionbecause good arguments can be madeon both sides.

Chapter 2 took the conceptualframework established in Chapter 1 andapplied it to the doctrine of judicialindependence in Canadian law. Theenactment of a constitutionallyentrenched bill of rights in 1982 throughthe Charter of Rights and Freedomsexpanded the role of the Canadian courtas an interpreter of broadly wordedconstitutional rights. Specific measuresproviding for the separation of the judi-ciary from the influence of the legislativeand executive branches appear in the textof the Constitution Acts, but a generalprinciple of judicial independence hasbecome a deeply rooted tradition. In theProvincial Judges Reference case, theSupreme Court of Canada recognizedjudicial independence as an unwrittenconstitutional principle. The Court heldthat judicial independence preventeddirect negotiations between the judiciaryand other branches of government.Instead, the Constitution required com-pensation commissions to depo-liticizejudicial remuneration. The governmentmust first consult these commissionsbefore changing judicial salaries.

Doctrine of judicial independence inCanadian law is obscured by invokingjudicial independence in the ProvincialJudges Reference case where theperception of impartiality was notimpaired. The result of the decision mayparadoxically diminish judicial inde-pendence since judicial institutions areincapable of responding to acute attackson their independence. Non-judicialbranches of government must protect thejudiciary and enact specific guaranteesof judicial independence. However, thelegislative and executive branches ofgovernment are now likely to be cautiousin taking action touching upon thejudiciary, particularly since such actionmay be found unconstitutional. A chillingeffect on deliberative action necessary toprotect and enhance judicial indepen-dence is likely to result.


Provincial Judges Reference alsoinflicted damage on the perception ofimpartiality since the salaries of provincialjudges increased dramatically followingthe implementation of the commissionprocess. A conflict of interest was seento arise from the role of the Court as thedecision maker in a dispute involving thejudiciary. While there does not appear tobe an ideal solution to this unavoidableconflict, courts can alleviate a perceptionof bias by adopting prophylactic rules. Asjudicially crafted directives to preventviolations of the constitution, prophylacticdirectives are not mandatory where thestate produces an alternative method offulfilling its constitutional obligations.Prophylactic rules are well suited to theCanadian context as they encouragedialogue and promote informalconventions to regulate interactionbetween the branches of government.

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Nota redacþiei: Articolul a fost publicatiniþial de McGill University, Institute ofComparative Law, Revista ForumulJudecãtorilor primind permisiunea autoruluiîn vederea republicãrii exclusive a studiuluiîn România.

Documents

Revista Forumul judecatorilor nr 2 2011