Mixed Blessing of Judicial Specialisation: the Devil is in the Detail

Abstract

This article discusses from a critical perspective the issue of judicial specialisation. While accepting the assessment that judicial specialisation is a growing trend in a number of contemporary states, the author sets forth different perspectives and viewpoints on judicial specialisation which clearly show that the excessive enthusiasm should be subdued and that any attempt to specialise judges, court structures and procedures should be carefully balanced against the possible negative impact specialisation could have, both at the general level, and at the level of concrete gains related to administration of justice. The starting point of the analysis is the presentation of multiple forms that judicial specialisation can have. Aspects that are distinguished are judicial specialisation in narrow sense (jurisdictional specialisation) and broader sense (internal, personal and procedural specialisation). Based on the data of the European Commission for the Efficiency of Justice (CEPEJ), it is concluded that there is no coherent or consistent approach to judicial and jurisdictional specialisation in Europe, both in respect to the level of specialisation, and in respect to the forms of specialisation. A discussion of the Opinion no. 15 of the Consultative Council of European Judges (CCJE) shows that the viewpoint of judges and their professional organisations is also sceptical on certain aspects of specialisation, and that specialisation is considered to be potentially harmful for the unity of judicial profession and its main professional and ethical foundations. From the perspective of judicial administration, as demonstrated on the examples of international expert assistance to judiciaries of the Netherlands and Croatia, judicial specialisation is attractive, but often for wrong reasons. There is so far little comparative research on judicial specialisation, and the methodology of assessing its concrete benefits and detriments is not developed. Most importantly, the excessive specialisation may have negative impact on the fundamental values of contemporary judicial systems. Therefore, judicial specialisation should be approached with extreme caution, always assessing its implementation from various angles and in the light of all possible side effects that it may have to good administration of justice and core judicial goals and values.