Iddo Porat and Rehan Abeyratne
The College of Law and Business, Israel and 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 candidate 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 Europe 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 and Rehan Abeyratne, ‘Towering Judges in Comparative Perspective: Introduction’ IACL-AIDC Blog (4 March 2019) https://blog-iacl-aidc.org/towering-judges/2019/3/4/towering-judges-in-comparative-perspective-introduction