The system for regulating judges in South Africa is in the process of transition, from the accepted common-law practices to a new set of mechanisms founded on and consonant with the values of the 1996 Constitution. This chapter explores the changing landscape of judicial appointments, disciplining and resourcing, and generally ensuring accountability for the exercise of judicial authority, in a constitutional order struggling to adapt to the challenges of ensuring democratic ideals in a manifestly unequal society.
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Andrew D. Mitchell, David Heaton and Caroline Henckels
Ireland’s judiciary, though small in size, has developed a strong tradition of independence and enjoys a high level of public confidence. If recent controversies have called into question some of the unarticulated traditional conventions about the role of the judiciary and its relations with the political organs, they have also arguably led to an important debate about judicial regulation in Ireland. While the judiciary itself has been proactive in seeking reform, it has met with reluctance from the political organs whose cooperation is essential for meaningful regulatory reform.
Like all post-communist countries, Croatia has undergone substantial transformations since independence. Judicial reform has been one of the most complex and most demanding projects. The Croatian judiciary has suffered from a number of inherited and new problems. Judicial reform has covered a wide range of issues, including: organization of the judiciary, career management, judicial ethics, and judicial training and continuing education. In this 15-year period of judicial reforms, there has been no area of the Croatian judicial system that has not been significantly affected. This chapter provides an overview of the most important judicial reforms in post-Yugoslav Croatia. It reflects upon the impact of the EU on judicial reform in Croatia, both before and after Croatia’s accession to the Union. It elaborates on the achievements of the reformers, and suggests further steps that should be taken in order to improve the overall performance of the Croatian judicial system.
In Japan the interaction between institutional and informal mechanisms results in a de facto regulatory regime for judges. This contributes to judicial conservatism in politically sensitive cases and deviation from the underpinning values (such as judicial independence, impartiality and representativeness) of the foreign-influenced de jure regulatory regime that was established during the post-war Allied Occupation. But the public does not expect such values. Judicial conservatism has not caused public dissatisfaction or lack of confidence in the judiciary. At the same time, interference from the executive government is unlikely. Therefore, without a change in the public’s ideology, judicial conservatism in Japan will continue unabated.
Sarah MR Cravens
Regulation of judges in the United States is notable for its variety of structures and practices, and consistency of major themes and problems. This chapter tackles two current issues: (1) the lack of official external regulation of conduct and ethics of the justices of the Supreme Court of the United States, and some of the persistent related regulatory problems unique to that court; and (2) the speech and money at stake in the election of judges to seats on various state courts and the ramifications for regulating the ethics of subsequent decision making by the judges who ultimately take those seats.
The tension between constitutionalism and administrative arbitrariness complicates regulation of the Russian judiciary, a large bureaucracy that (a) mediates this tension through the mechanisms of acceptance, adaptation and resistance in order to conserve and reproduce internal judicial lines of accountability and control; and (b) produces paradoxical outcomes of judicial performance.
Richard Devlin and Adam Dodek
In this Introduction to Regulating Judges: Beyond Independence and Accountability the authors begin by outlining the conventional frame of reference adopted in the judicial studies literature as being premised upon an independence/accountability continuum. While recognizing the strengths of this traditional approach, the authors argue that analyses of the judiciary could be enriched by adopting some of the insights from contemporary regulation theory. On this foundation they then develop a new conceptual framework based upon a regulatory pyramid comprised of values, processes, resources and outcomes. The latter part of the chapter then road-tests this innovative paradigm by filtering the 19 chapters through the regulatory pyramid to: (a) identify a number of common challenges; (b) highlight several significant controversies; and (c) emphasize the plurality of choices available for the regulation of judges.