The Institutional Character of the Judge

Abstract

It would be an unforgivable presumption on my part if I attempted to give my observations in this lecture a world-wide focus. At best, they may be suggestive beyond the compass of the small part of the world in which I have gained, by study and by experience, the insights which support my words. At the least, they will bring to light my particular appreciation of the liberties and the constraints which judges of courts in a parliamentary democracy enjoy and endure in the discharge of their duties.What do I mean by “the institutional character of the judge”? Imagine, if you will, that a man or a woman has been appointed a member of a court. That person has joined an organization which, by constitution or by statute or by both, has been given form, size and function. The position provides security of tenure, an assured salary, and a pension upon due retirement or after a prescribed number of years of service. It demands a stated length of experience in law which has been underpinned by educational qualifications that any aspirant to membership of the Bar must meet. In my country, as in Great Britain and the United States, and as in Israel, the neophyte judge is neither a civil servant, as is the case elsewhere, nor has he joined a specialized branch of the executive government, as is also the case elsewhere. What faces him or her in his or her work, be it as a trial judge sitting alone or as an appellate judge sitting with two or four or more colleagues? To what extent does the judicial system, of which he or she is now part, absorb him or her, and how much freedom does he or she have, to remain or become an individual per se?