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Special Symposium on “Towering Judges”—Jointly Hosted at I-CONnect and IACL-IADC Blog—Introduction: Towering Judges in Comparative Perspective

[Editor’s Note: We are delighted to co-host a special online symposium on the concept of a “towering judge.” This symposium—hosted jointly for the first time both here at I-CONnect and at the IACL-AIDC Blog—emerges from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). We begin, today, with both blogs simultaneously publishing the Introduction to this symposium. Over the course of the next month, I-CONnect and the IACL-AIDC Blog will alternate the publication of posts on the conference theme. The symposium will conclude on April 5, 2019, with both blogs simultaneously publishing the Conclusion to this symposium. We thank the symposium organizers and our colleagues at the IACL-AIDC Blog—Erika Arban and Tom Gerald Daly—for this special collaboration.]


Iddo Porat, College of Law and Business, Tel Aviv, and Rehan Abeyratne, The Chinese University of Hong Kong

On January 25-26, we convened a conference at the Chinese University of Hong Kong, Faculty of Law, bringing together leading constitutional scholars to discuss a new topic in comparative perspective: ‘Towering Judges’. All told, we discussed 13 judges from 12 jurisdictions and two general papers. This Blog Symposium, co-hosted by IACL-AIDC and ICONnect, will give readers a snapshot of these judges and the general themes we discussed. In this introductory post, we aim to provide some background and framing to this project.

Our first challenge was to decide what to call this concept. We considered a few options: the first was Herculean judges, following Dworkin’s hypothetical judge, Hercules. Other candidates were Hero Judges, Super Judges, or Oversized Judges. We finally opted for Towering Judges, which we hope catches the essential characteristics of the phenomenon while allowing enough variance not to exclude too many important examples. At a minimum, a towering judge connotes a judge that is in some respects “taller” than other judges, and therefore individually distinguishable from them. Thus, there is something individualistic about a towering judge that we think is essential to the phenomenon. Towering also connotes not just a little bit taller, but taller in some important or substantial way. But this still leaves, intentionally, a lot open: it does not say or determine in what way the judge is taller than other judges. It also does not say whether taller is necessarily better – is he or she taller in a good or in a problematic way? Do “towering” figures also need to be liberal, anti-formalist or expansionist? Perhaps we can have towering conservative judges, or judges who are towering for holding back negative change rather than promoting positive change. Our conception also allows different degrees of “toweringness”. Towering judges could be those that completely reshape the judicial, legal and even societal landscape, but their impact need not be so far-reaching to be viewed as such. We should say also that our focus is on judges who had a towering impact on constitutional law – a focus that may not be entirely analytically justified, but pragmatically narrows the scope of the phenomenon.

The judges that will be discussed in the Symposium include: Sir Anthony Mason (Australia), CJ Beverley McLachlin (Canada), CJ Hugh Kennedy (Ireland), Chief Justices Hughes and Warren (United States), CJ Chan Sek Keong (Singapore), CJ Aharon Barak (Israel), CJ Kalyan Shrestha (Nepal), Justice Manuel Cepeda (Colombia), CJ PN Bhagwati (India), CJ Arthur Chaskalson (South Africa), President Laszlo Sólyom (Hungary), Judge Eugenio Valenzuela (Chile). We acknowledge that for most of the jurisdictions above, the judges selected are not the only possible candidates for recognition as a “towering judge”. However, as the Symposium continues, the contributors will make clear the reasons behind their selections.

We now discuss several categories of analysis according to which the different judges can be placed, distinguished or grouped together. First, we distinguish between three dimensions along which a judge may be towering – political, institutional and jurisprudential. Political towering judges are those that promote a particular ideological, moral or political agenda or change. This change can be liberal, rights-protecting, or globalist (Barak, Mason, Bhagwati, Warren); tied to particular circumstances, such as helping to oust an autocratic regime (Valenzuela); or to integrate the country into the EU (Sólyom). Institutional towering judges leave a lasting legacy in terms of the legal institutions they create, enhance or protect. This includes judges that help establish and solidify a new court (Chaskalson, Shrestha) and those that help perfect or protect a court from outside pressures (Cepeda). The last category is the most familiar – judges who leave a jurisprudential or intellectual mark on the court, through the force, legal craft or sheer number of their opinions (Kennedy, Chan) or by marshalling their colleagues to move the law significantly in a particular direction (McLachlin, Mason, Warren). Of course, judges could tower in more than one of these categories and most of chosen judges do precisely that.

Second, we distinguish between three modes of operation of these towering judges. The first distinction is between individual and collegial judges. This is an aspect discussed in more detail in the forthcoming post by Rosalind Dixon. She explains how some judges make their impact felt collectively (Mason, McLachlin, Chaskalson, Cepeda), while others do so more individually (Bhagwati, Sólyom, Barak). The second and third categories are interrelated: we distinguish between judges who prioritize legitimacy over change as well as those that favor expediency rather than incrementalism. For some of these towering judges, the primary objective or mode of operation is to build legitimacy, especially in the early years of a court or constitution (Chan, Cepeda, Shrestha). Many of these judges tend to favor incremental progress. For others, the principal aim is to effect change, regardless of legitimacy. This may correlate with a desire to move forward in great leaps with a view towards expediency (Bhagwati, Barak).

A third set of analytical distinctions refers to the conditions for “toweringness”: what conditions are conducive for the rise of towering judges? First, and likely most important, is institutional conditions. Note that there are no judges from continental Western European on our list. This is probably due to the absence of suitable institutional conditions to foster or to allow for the emergence of towering judges in Europe. Such conditions would include sufficient time on the court. Practically all constitutional courts in Europe have limited terms for judges, which span between two 3-year terms in Spain, 9 years in Italy, and 12 years in Germany. Having a limited term can substantially constrain judges’ ability to have long-term effects on their respective courts or to build towering intellectual reputations. Common law judges, on the other hand, including in apex courts, typically have unlimited terms, terminated only by a set retirement age (or life tenure in the U.S.). In these jurisdictions, judicial terms of 20 years are not unusual. Other institutional arrangements that can curtail the incidence towering judges are: courts not having signed opinions, not publishing dissenting opinions, and having short, cursory decisions, as in France. A fragmented court that has two senates, such as in Germany, can also hamper the formation of a single towering judge, as can the alternation of Chief Justice each year, as in Colombia. Second, there are cultural conditions, which can also explain the absence of some of the European countries from the list. The German Federal Constitutional Court is, in many respects, the most influential and innovative in Europe, but it is not evident that it has produced towering judges (Dieter Grimm could be a possible exception). This may be due to the very formalist and anti-individualist legal culture in Germany. Finally, timing is an important condition and influencing factor. Some settings almost call for towering judges. Chief Justice Chaskalson was building a new court, within a completely new constitutional system, and was handpicked by President Mandela to do that as the first Chief Justice of the South African Constitutional Court. This placed him a strong position to end up as a towering judge. Times of change or crisis after revolution – Sólyom in Hungary, Cepeda in Colombia, or Shrestha in Nepal – can also be conducive for towering judges. Of course, this is neither a sufficient nor necessary condition. Poland also went through a democratic revolution and did not produce a towering judge as Hungary did. Meanwhile, Barak in Israel and Mason in Australia were towering judges who emerged despite there being no crisis or revolution underway.

These and other insights on towering judges will be further developed through the detailed and diverse case studies of the Blog Symposium. We sincerely thank the contributors for their participation and the editors of IACL-AIDC and ICONnect for hosting us.

Suggested Citation: Iddo Porat & Rehan Abeyratne, Special Symposium on “Towering Judges”–Jointly Hosted at I-CONnect and IACL-IADC Blog–Introduction: Towering Judges in Comparative Perspective, Int’l J. Const. L. Blog, Mar. 4, 2019, at: http://www.iconnectblog.com/2019/03/special-symposium-on-“towering-judges”—jointly-hosted-at-i-connect-and-iacl-iadc-blog—introduction:-towering-judges-in-comparative-perspective

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Published on March 4, 2019
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One Response

  1. Michael Scott

    While I agree that Sir Owen Dixon and Sir Anthony Mason qualify as “Towering Judges in Mature/Stable Democracies”, they do so for wholly opposite reasons in terms of what good and honourable judges should do. While Dixon’s “tall tower” is built on solid rock, Mason’s stands on clay which will eventually crumble and the tower will deservedly tumble. History shows that the truth always emerges, and in this case the ingredients are already in the public domain waiting for the inevitable accurate collation and evaluation to occur.

    To date, Sir Anthony has demonstrated a remarkably plausible and bafflingly effective capacity to sanitise his culpability in destabilising mature/stable democracies and the rule of law in staggeringly many serious and totally unacceptable ways. While the crime committed against constitutional democracy (the Whitlam dismissal) in a conspiracy of three politically-appointed judges (one of whom was Governor General) was the most monumental of these, there are examples of unorthodox Mason Court adjudication which are hardly less serious. Honesty and integrity (first and foremost), impartiality, respect, humility and accuracy are essential character and competence attributes of all judges. Given the universal importance of the rule of law, this cannot be truer than for judges. No judge is above the law. The Judicial Oath and other binding law such as the crime of obstruction of justice makes that plain. Dixon’s safeguard of “strict and complete legalism” – expediently misrepresented and ridiculed as rigid by his “young generation” critics – recognised these fundamental principles. The illegitimate and uncontrolled “politicised, flexible and elastic activist adjudication”, most damagingly advocated and practised by Mason, brushed them aside. Such unjudicial conduct is inconsistent with Sir Anthony’s claimed value of “equality across the nation”.

    Not every observer is gulled. For example, the respected Lord Bingham (definitely a genuine “Tall Tower”), first President of the Supreme Court of the United Kingdom (which replaced the House of Lords in 2009) cautioned: “we may agree with [High Court of Australia] Justice [Dyson] Heydon [regarding] judicial activism taken to extremes … to seek to recast the law in a radically innovative or adventurous way … is to make it uncertain and unpredictable, features which are the antithesis of the rule of law. It is also, of course, very tough on the loser in the particular case, who has lost because the goalposts have been moved during the course of litigation. This can, if the movement is substantial and unpredictable, offend the rule … that laws should generally take effect in the future.” 1 (Tom Bingham, The Rule of Law, Penguin Books 2011, at pp. 45-46, first published by Allen Lane 2010)

    Certain famous allegedly “liberal” politicised judgments have in reality been wholly or partly illiberal, elitist, right-wing conservative (as distinct from centrist) and reactionary. For example, in Australian Capital Television (1992) the High Court of Australia found an implied constitutional right to “free political speech” over the broadcast media. Unfortunately, inconsistently with that finding, a majority of the judges led by Chief Justice Mason struck down egalitarian human rights legislation which banned highly expensive and overwhelmingly trivialising, inane, distorting, scaremongering “sound-bite” political advertising at election time.

    As practice in America has amply demonstrated for decades, only the very rich can afford to buy broadcast political advertising – and thereby effectively buy democracy to the entrenched political and economic advantage of themselves. Therefore, following British and European precedent and the United Nations International Covenant on Civil and Political Rights 1966 (to which Australia is bound as a state party) the federal government’s legislation banned paid political advertising and required television and radio stations to allocate free airtime in the period before an election enabling a wider range of the people to communicate and debate political views. By striking down the government’s carefully crafted legislation and substituting crudely plutocratic American practice the majority judges drastically diminished rather than enhanced access to free political speech.1 (Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106) English High Court judge, Sir Stephen (later Lord Justice of Appeal) Sedley, denounced Australian Capital Television as being “so partial as to justify every fear the outcome watchers have expressed. … The Australian decision certainly makes it harder to defend the fitness of the courts to undertake constitutional adjudication on human rights issues.”1 (Stephen Sedley, “Human Rights: a Twenty-First Century Agenda” [1993] Public Law 386, at pp.393-394)

    In the 1992 Mabo case on the land rights of indigenous Australians, the High Court recognised that leading English common law authority assumed that interests in property existing under native law or customs were preserved and protected by the domestic law of a new British colony after its establishment. Artificially, the court then conservatively took back with one hand much of that which it had progressively given to a tragically oppressed people with the other by denying native titleholders the rights to compensation which were also conferred on them by the relevant common law. In an extraordinarily brief judgment, Mason wrote that the judges had all agreed with his proposal to restrict the grounds for seeking compensation for extinguishment of native title to pursuing a statutory claim of racial discrimination under legislation that did not even exist until the late twentieth century. Without setting out comparative evidential, historical and legal analysis under the applicable English authorities, Sir Anthony argued that, except further to a claim of racial discrimination under the Racial Discrimination Act 1975, compensation should be denied on the artifice “that native title, where it exists, is a form of permissive occupancy at the will of the Crown.”1 (Mabo v Queensland (No.2) (1992) 175 CLR 1)

    This sweeping argument was subjective and political as it had no basis in common law. It was self-contradictory, unjust and discriminatory since the Mabo judges had already recognised that, when colonisation began in 1788 (not in 1975, when the Racial Discrimination Act commenced) native title became a common law legal right – which is much more than merely a “permissive occupancy at the will of the Crown”. The right to occupy derived from the pre-existing native title, not a later limited, arbitrary, “might makes right” permission of the Crown. It follows that, if the Crown subsequently withdrew permission then compensation in some form was due, particularly as native title is a substantive ownership right, not simply a “permissive occupancy”. Furthermore, the reason why the Crown decided to diminish or destroy a native title in any given case may have been for a purpose that was completely incidental to the race of the titleholder, yet the Mason Court arbitrarily deprived aggrieved native titleholders of the right to seek compensation which was available to everyone else with an interest in property under the generality of the common law – not merely the Racial Discrimination Act – from which the reasoning in the Mabo judgment derived. The applicable common law did not make the existence, preservation and protection of interests in property under native law or customs – or, consequentially, compensation for impairment of those interests – contingent on the mere technicality, grace, favour or executive fiat of a permit to occupy by the Crown.

    After retiring from the High Court of Australia, Mason became the second overseas judge to be appointed to the then fledgling Hong Kong Court of Final Appeal. He unfortunately continued to practice his brand of extreme illegitimate judicial activism there. The first overseas appointee was Sir Robin (later Lord) Cooke who had recently retired from the New Zealand Court of Appeal. Sir Robin soon departed upon the invitation of Lord Bingham to serve in the House of Lords.

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