Judicial Virtues Research Articles

Rule of Law and the Criteria for Appointment of Judges: A Case for Judicial Virtues

AbstractThis article seeks to develop a case for a virtue-oriented (or aretaic) approach to the criteria for appointing judges. It will argue for the usefulness of judicial virtue by showing its theoretical relevance for describing and explaining the criteria for selecting judicial candidates and claiming its advantage over the currently used syncretic sets of criteria used in European jurisdictions. The analysis will explore the connection between the criteria of judicial selection and the Rule of Law. If the Rule of Law is to be understood at its core as a process of tempering the arbitrariness of power, it requires certain personality traits of character on the part of the judiciary. This article argues that virtue is a context-relevant concept well-entrenched in legal culture that amounts to a personality aspect of the Rule of Law. In support of this point, the article discusses the two possible methods of establishing judicial virtues – using a targeted approach to virtue and an Aristotelian-inspired method of uncovering a catalogue of judicial virtues from the insights into the legal culture. The article concludes with policy-oriented advice on incorporating a virtue-centred approach to judicial selection processes.

Detached from Sympathy, Unconscious of Trauma: The Impact of the Forensic Virtues of Impartiality and Detachment on Rape Examinations in Britain 1924-1978.

This article asks why British mainstream forensic literature and practice did not acknowledge the long-term mental consequences of rape for victims and their need for a sympathetic approach before the 1970s. I argue that this was not simply out of ignorance, considering that in the period 1924-1978 there already were some medical practitioners-women doctors, psychiatrists and gynaecologists-who expressed concern for these matters. However, the forensic expert witnesses, who were influential in the field, considered the virtue of sympathy and the practices of care that women doctors promoted to be incompatible with the judicial virtue of impartiality. To avoid any suggestion of partiality, which would damage their authority in the adversarial courtroom, these men instead employed the epistemic virtue of emotional detachment. This led them to adopt a sceptical attitude towards rape victims and drew their attention away from the psychological care women and children might require.

Porównanie myśli Arystotelesa i Konfucjusza w kontekście jurysprudencji cnót

This article aims to study the difference between the ethical projects of Aristotle and Confucius in the context of virtue jurisprudence. In the opening, I demonstrate the current state of virtue jurisprudence, acknowledging both its historical and theoretical foundations. Additionally, an increased interest in East Asian thought in the philosophy of law is underlined as forming the basis for this article. The next two sections consist of a reconstruction of the ethics of Aristotle and Confucius, with a special focus on concepts used in both projects. In the closing parts of this article, an attempt is made to compare both Aristotle’s and Confucius’s ethics in the context of virtue jurisprudence. Finally, the article tries to show how taking a Confucian approach can resolve the issue of the foundation of judicial virtues.

Humility as a necessary virtue in common-law decision making

ABSTRACT Humility holds a modest but important place among the judicial virtues. But in spite of its growing popularity, it does not yet have a place on the ‘central judicial virtues’ lists. This paper provides an argument that judicial humility, especially institutional judicial humility, should be considered a necessary judicial virtue at least in common-law jurisdictions. This is because it is a necessary ingredient in precedent-based decisions that are fully justified from the point of view of the law and of political morality. Further, while it is sufficient that individual judges make decisions that a humble judge would have made, the judicial community must in fact be humble in order to produce fully justified common-law decisions – humility is therefore necessary as a community-virtue.

Show issue Year 12/2022 Volume 14 Issue 4 Trust and Trustworthiness as Judicial Virtues

This article considers the meaning of trust for judicial communication. The central tenet of this analysis is that trust is best conceptualized as a judicial virtue and that it can be most fully explained with aretaic language. This claim is elaborated through, first, making distinctions between trust and reliance, as well as between trust and trustworthiness. Second, exploring the determinants of trustworthiness leads the author to argue for a virtue account of judicial trustworthiness. Third, the article discusses whether and how trust as a particular attitude or propensity may be perceived as a judicial virtue. The argument concludes by considering the relation between trust in judges and trust in justice institutions, such as courts of law.

On the Relationship between Judicial Empathy and the Integrity of Judges

This paper dwells on the relationship between judicial empathy and integrity. It claims that for the emergence and proper functioning of judicial empathy as a kind of judicial virtue, a number of conditions needed to be fulfilled, including the development of judicial integrity. The paper aims to unpack this argument and to demonstrate judicial empathy and integrity in action as exemplified particularly by judicial behaviour observed during empirical research in Cracow lower courts. The overall perspective for examining the relationship between judicial empathy and integrity rests on the developmental vision of a judge. Although the presented research fits into the broader interest in judicial empathy and judicial virtues, the paper contains concrete examples of verbal and non-verbal behaviours of a judge that demonstrate how judicial empathy co-functions with other skills and virtues. In general, the paper opposes the marginalisation of judicial skills and virtues.

Metaphors judges live by: ‘dirty minds’ and the ‘fear of contamination’ in the new criminal justice system in Mexico

AbstractIn this paper, I take George Lakoff and Mark Johnson's thesis that metaphors shape our reality to approach the judicial imagery of the new criminal justice system in Mexico (in effect since 2016). Based on twenty-nine in-depth interviews with judges and other members of the judiciary, I study what I call the ‘dirty minds’ metaphor, showing its presence in everyday judicial practice and analysing both its cognitive basis as well as its effects in how criminal judges understand their job. I argue that the such a metaphor, together with the ‘fear of contamination’ it raises as a result, is misleading and goes to the detriment of the judicial virtues that should populate the new system. The conclusions I offer are relevant beyond the national context, inter alia, because they concern a far-reaching paradigm of judgment.

Constitutional Humility: The Contested Meaning of a Judicial Virtue

References to the “humility” and “hubris” of judges are common in American political and constitutional discourse, but neither public nor scholarly commentators have developed an adequate theoretical framework for what humility means in the context of constitutional jurisprudence. In this article, we first draw out the common themes and tensions among conceptions of judicial humility by providing an extensive review of scholarly treatments of humility as a judicial virtue. Second, we develop a theoretical account of constitutional humility that delineates two interrelated dimensions: “epistemological humility,” an inward-looking, self-referential dimension; and “institutional humility,” an outward-looking, other-directed dimension. We argue that these dimensions work together to provide a complete account of constitutional humility. Finally, we conclude by highlighting how this conception of constitutional humility can improve our judicial practice and public discourse.

Judges’ Virtues and Vices: Outline of a Research Agenda for Legal Theory

This article focuses on the issue of applicability of virtue theory to legal theory in civil-law (statutory) jurisdictions and suggests research areas and problems in that respect. The author starts with an assumption that the notion of “virtue” and virtue ethics should be used for the purposes of legal theory starting from references to judicial ethics and normative theory of judicial decision-making. This approach looks especially promising for the purpose of systematizing the chaotic moral language that is being currently used in Poland in reference to judges, their skills, and qualities of their character, which in turn may lead to formulating an explanatory and normative theory of the judicial role that better addresses the observable deficiencies of legal deontology. The author suggests research that could proceed from interpretatively uncovering what are believed to be specific judicial virtues and vices, considering different aspects of the wider Polish and European legal culture of civil law countries (included but not limited to legal and ethical standards, public discourse, legal and other literature, historical and fictional examples, and role models). With respect to judicial ethics, existing virtue theories, including non-eudaimonistic ones, may be examined for the purpose of identifying the model of virtue best suited to the particular nature of the judicial profession. The aretaic (rather than deontological or consequentialist) perspective may enable legal scholarship to take a new path in the debate on the status and qualities of the judiciary, including the problems relating to judicial independence and the selection of candidates for judicial offices.

Literatura del derecho: entre la ciencia jurídica y la crítica literatura

This work questions the relationship between law – rules, power, strength and legal security – and literature – open, ductile, revulsive of “having to” and dreamy with what “should be”. For this postmodern instrument of recognition of the other and their differences, Law forced the stories of real people and their longings for justice into impartial concepts, silencing especially those of the most vulnerable. I begin by analyzing what it is, when, how and why the Law and Literature Movement came about, and will recall its three dimensions, the Law of / as / in literature, to focus on these last two strategies of analysis. From this, I then focus on the interpretation, position and function of the law interpreter, on rhetoric, narrative and New Criticism as forms of literary analysis of Law. I thus arrive at conclusions based on seven objections to the literary approach (its justice, its anti-formalism, its alleged judicial virtues, the irrationality of empathy, its critical literary theory, and the proposal of the chain novel in prospecting dynamics of the law, its contextualization and the risks of emotion and empathy for rights and legal security) and the possible responses to such objections. Conclusions that open us to an exciting project, but which, because of this, demand to be especially demanding in the integrated handling of a transgressive literature within the limits of the complex, dynamic and flexible reality of Law.

The virtue of judicial humility

ABSTRACTThis paper articulates an egalitarian conception of judicial humility and justifies its value on the grounds that it importantly advances the legal and political ideal of fraternity. This account of the content and value of the virtue of humility stands in sharp contrast with the dominant view of judicial humility as deference or judicial restraint. The paper concludes by discussing some ways in which the account of humility and of its value provided in the paper furthers our understanding of the judicial virtues and of the political implications of giving virtue a role in adjudication.

Stosuj ustawy i rób, co chcesz? Pojęcie niezawisłości a deontologiczny model cnót sędziowskich

W niniejszym artykule autorka rozważa niezawisłość sędziów w świetle modelu deontologii cnót. Analizuje ich decyzje i postawy w toku stosowania prawa, argumentując, że aspiracje, by realizować sędziowskie cnoty, mają charakter wtórny względem nadrzędnych wymogów przestrzegania prawa. Stawia tezę, że przestrzeń niezawisłości stanowi wyraz swoistego zaufania ustrojodawcy, iż sędziowie posiadają dyspozycje, które umożliwiają nie tylko wywiązywanie się z obowiązków, lecz także sprostanie wyzwaniom etycznym podczas orzekania. Przywołuje teorie orzekania w trudnych przypadkach autorstwa H. L. A. Harta i R. Dworkina oraz próbuje odpowiedzieć na pytanie, który z teoretycznych modeli – Hartowski czy Dworkinowski – lepiej charakteryzuje praktykę orzeczniczą polskiego wymiaru sprawiedliwości.

Virtudes, Argumentación Jurídica y Etica Judicial

Segun Atienza, la teoria de la argumentacion se tiene que ocupar de responder tres preguntas: como analizar una argumentacion, como evaluarla y como argumentar. En el texto que nos ocupa, Atienza se centra en la segunda de estas cuestiones: como evaluar una argumentacion, en concreto, una argumentacion judicial. Segun Atienza, son cinco los criterios basicos de evaluacion: universalidad, coherencia, adecuacion de las consecuencias, moral social y moral justificada. Estos criterios, sin embargo, no siempre nos permiten solucionar el problema de la evaluacion de una argumentacion juridica ya que, en ocasiones, no son lo suficientemente precisos, son dificiles de aplicar y ademas pueden entrar en conflicto. En estas situaciones, segun Atienza, es necesario apelar a la idea de razonabilidad. La decision razonable es aquella que satisface, en la mayor medida posible, los citados criterios y que resulta, ademas, aceptable.

Principle, Discretion, and Symbolic Power in Rousseau's Account of Judicial Virtue

AbstractRousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open‐textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of how legislative indeterminacy—and correspondingly, judicial discretion—may undermine the authority of the general will. However, I argue that Rousseau aims to check judicial subversion of legislative supremacy simply by extending his broader social politics—and specifically, his peculiar concept of republican virtue—to the domain of law. His main concern is that the law should not develop as a mystifying expert practice; therefore, he necessarily rejects any understanding of judicial virtue as lying in principled discourse. Instead, he envisages that judicial power will be checked by a more generic sense of republican virtue. In turn this echoes his apprehension of social differentiation and social complexity as sources of domination and hierarchy.

Judging Judges: Values and the Rule of Law. By Jason E. Whitehead. Waco: Baylor University Press, 2014. 253 pp. $49.95 cloth.

Judging Judges: Values and the Rule of Law. By Jason E. Whitehead. Waco: Baylor University Press, 2014. 253 pp. $49.95 cloth.The rule of law has fallen on hard times. Today political scientists and legal scholars often deride the notion that law can constrain judges as a naeuroive mythology. Supreme Court justices are characterized as voting liberal or conservative blocs, as if political ideology alone determines how they decide cases. In Judging Judges, Jason Whitehead seeks to rescue the idea of the rule of law from academic critics and to revitalize it for a post-Realist era.The faith the rule of law began unraveling as a result of two academic movements the twentieth century. First, the Legal Realists bunked formal, mechanistic conceptions of judging and demonstrated instead how law and politics were deeply interwoven the judicial mind. Then came along positivist social scientists who endeavored to use judicial voting data to show judges decided cases on the basis of ideological preferences rather than objective legal principles.Coming to terms with these twin movements is not easy. Judges, even those who accept that law requires political choices, reject the idea that they decide cases on the basis of personal preferences and they insist that law matters. Academic critics insist the evidence is to the contrary, that such thinking is either self-delusion or deceitful.So which is it? Are judges deluded or do academics misunderstand how law works? Whitehead argues that positivist studies focusing on judicial voting patterns mischaracterize the that law constrains judges a post-Realist context. Once untethered from its formalist trappings, law is better understood as a set of historically evolving, politically contingent professional practices and habits of thought, rather than objective principles that mechanically lead to decisions. Thus, rule of law is about a sense of fidelity; it happens when judges feel internally bound by their best understanding of the relevant professional norms and practices, not when they reach correct decisions.This post-Realist reconceptualization of the rule of law builds on earlier work by Howard Gillman (2001), which Whitehead sets out to more fully elaborate and build an empirical account using interviews with 25 state and federal appellate judges.In the most important part of the book, Chapter One, Whitehead develops his theory of rule of law and distinguishes it from conventional views. Canvassing classic writings on the subject, he explains that traditional views were positivist and formalist; embracing an outside view of law as a set of external rules discovered through the use of disinterested human reason which judges applied in an objective, value-free way (p. 12).Realism rendered such views untenable, so Whitehead argues we must focus less on external rules and decisions, and more on the subjective, socially accepted standards which motivate judges. Empirically, there can be any number of such standards as legal and professional norms constantly evolve and are contested. But normatively judges must be motivated by to the norms they themselves believe make up the shared social practice of law. Judges uphold rule of law whenever they hold the proper attitude of fidelity and consider it their mission to follow their best understanding of the shared professional norms and rules.Whitehead identifies three sources or social practices that produce a sense of fidelity to law: the socialization of the legal-professional community into a sense of stewardship over law; the proper attitudes about the function of legal language and doctrine; and the acceptance of judicial virtues such as fairness, impartiality, and integrity. …

Moral Quality in Adjudication: On Judicial Virtues and Civic Friendship

How best to account for moral quality in adjudication? This article proposes a six-pack of judicial virtues as part of a truly virtue-centred approach to adjudication. These virtues are presented as both constitutive and indispensible for realizing moral quality in adjudication. In addition, it will be argued that in order to honour the inherent relational dimension of adjudication a judge should not only possess these judicial virtues to a sufficient degree, he should also have the attitude of a civic friend. The Aristotelian concept of civic friendship will be proposed as an important complement to a virtue-ethical approach to adjudication.

Exemplarism and Judicial Virtue

This paper argues that exemplary judges, i.e. paradigmatically good judges, are vitally important to both inculcating the judicial virtues and developing a theory of judicial virtue. Critically, such exemplars are not only real but also fictional. Thus, literature is central to both improving the judicial practice and theorizing about excellence in judging.

Exemplarism and Judicial Virtue

This paper argues that exemplary judges, that is, paradigmatically good judges, are vitally important both to inculcating the judicial virtues and to developing a theory of judicial virtue. Critically, such exemplars are not only real but also fictional. Thus, literature is central to both improving the judicial practice and theorizing about excellence in judging.

Antitrust and the Judicial Virtues

Although commentators frequently debate how judges should decide antitrust cases substantively, little attention has been paid to theories of judicial virtue in antitrust decision making. This essay considers four pairings of virtues: (1) striving for substantive purity versus conceding to institutional realism; (2) incrementalism versus generalism; (3) presenting a unified face versus candidly conceding differences among judges on an appellate panel; and (4) adhering strictly to stare decisis versus freely updating precedents to reflect evolving economic learning or conditions. While recognizing the complexities that sometimes pull judges in the opposite direction, this Article gives the nod to institutional realism, incrementalism, candor, and relatively unconstrained updating of precedent.

Gender and Judging

Introduction: Gender and Judging: Overview and Synthesis Ulrike Schultz and Gisela Shaw PART 1: PIONEERS AND EMINENT WOMEN JUDGES 1.1. Becoming the First Women Judges in Ontario: Women Lawyers, Gender and the Politics of Judicial Appointment Mary Jane Mossman 1.2. Profiles in Leadership: Eminent Women Judges in the United States Elaine Martin 1.3. The Entry and Integration of Women into Judicial Positions in Israel Eyal Katvan 1.4. First Female Judges in the Weimar Republic in Germany: Reflections on Difference Marion Rowekamp PART 2: WOMEN JUDGES' WORK AND CAREERS 2.1. Feminisation of the French 'Magistrature': Gender and Judging in a Feminised Context Anne Boigeol 2.2. 'I was noticed and I was asked ...' Women's Careers in the Judiciary. Results of an empirical study for the Ministry of Justice in Northrhine-Westfalia, Germany Ulrike Schultz 2.3. Women Judges and Magistrates in Kenya: Challenges, Opportunities and Contributions Winifred Kamau 2.4. The Impact of Women on the Administration of Justice in Syria and the Judicial Selection Process Monique C Cardinal 2.5. Skills for Judicial Work: Comparing Women Judges and Women Magistrates Kathy Mack and Sharyn Roach Anleu 2.6. Professional Stress, Discrimination and Coping Strategies: Similarities and Differences between Female and Male Judges in Switzerland Revital Ludewig and Juan LaLlave PART 3: GENDER PERSPECTIVES IN JUDGING 3.1. Gendered Experiences of a Judge in Germany Ruth Herz 3.2. Women Judges in the Netherlands Bregje Dijksterhuis 3.3. Gender and Judging in Traditional and Modern Societies: A Comparison of Two Case Studies (Ivory Coast and Italy) Maria Rita Bartolomei 3.4. Gender Arguments and Gender Perspective in Legal Judgments in Argentina Andrea L Gastron, M Angela Amante and Ruben Rodriguez 3.5. Do Women on South Africa's Courts Make a Difference? Ruth B Cowan PART 4: GENDERED CONSTRUCTION OF JUDGES 4.1. 'May it Please the Court'. Forming Sexualities as Judicial Virtues in Judicial Swearing-in Ceremonies Leslie J Moran 4.2. Let History Judge? Gender, Race, Class and Performative Identity: A Study of Women Judges in England and Wales Hilary Sommerlad PART 5: FEMINIST JUDGES AND FEMINIST ADJUDICATION 5.1. Must Feminist Judges Self-identify as Feminists? Beverley Baines 5.2. Justice Marcia Neave: Case Study of a Feminist Judge Rosemary Hunter 5.3. What's in a Label? Argentine Judges' Reluctance to Call Themselves Feminists Beatriz Kohen 5.4. A Feminist Adjudication Process: Is There Such a Thing? Reg Graycar PART 6: QUOTAS AND DIVERSITY 6.1. Which Judicial Selection Systems Generate the most Women Judges? Lessons from the United States Sally J Kenney 6.2. Gender Quotas for the Judiciary in England and Wales Kate Malleson 6.3. Rethinking Judicial Diversity Erika Rackley PART 7: GENDER AND JUDICIAL EDUCATION 7.1. Gender and Judicial Education in India Ann Stewart 7.2. Gender and Judicial Education in Japan Kayo Minamino 7.3. Engendering the Judiciary-Lessons from the Philippines Atsuko Miwa 7.4. Gender Training for the Judiciary in Cambodia Keiko Sawa 7.5. Do German Judges Need Gender Education? Ulrike Schultz