Ethical Infrastructure for a Modern Judiciary

Abstract

The ethical conduct of judicial officers has been traditionally seen as a matter for individual judges to determine for themselves. Today, judges are still frequently left to consider ethical dilemmas with little formal institutional support. They must rely on their own resources or informal advice and counsel from colleagues and the head of jurisdiction. This article will explore whether this arrangement continues to be appropriate. We consider a hypothesis that a number of factors, including the growing numbers and diversity of the judiciary mean that it is less likely that there will be common understandings of the ethical values to be employed in resolving difficult dilemmas. Thus, we further hypothesise, the traditional arrangements are likely to prove insufficient. Drawing on the findings of a survey of judicial officers across Australian jurisdictions conducted in 2016, we test these hypotheses by reference to the perceptions of Australian judicial officers as to the adequacy of the ethical support available to them. Finally, we consider the variety of supports that are available in comparable jurisdictions and also in the legal profession, before turning to possible solutions to the question our hypotheses raise, including the introduction of ‘ethical infrastructures’ in the form of more formal arrangements that provide ethical guidance to judges. We argue that these ethical support mechanisms have the potential to enhance the quality of ethical decision-making and foster an ethical culture within the judiciary.