Guide to Citizens’ Rights and Responsibilities

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transnational: extending beyond the jurisdic-
tion of one single nation
■ ■ ■  

See also:
Kelsen, Hans.
B I B L I O G R A P H Y
Abraham, Henry J. The Judicial Process: An Introductory Analysis of the Courts of the
United States, England, and France, 7th ed. Oxford, UK: Oxford University Press, 1998.
Bickel, Alexander. The Least Dangerous Branch. New Haven, CT: Yale University Press,
1962.
Cappelletti, Mauro. The Judicial Process in Comparative Perspective. Oxford, UK:
Oxford University Press, 1991.
Corwin, Edwin S. The Higher Law Background of American Constitutional Law. Ithaca,
NY: Cornell University Press, 1929/1965.
Ginsburg, Tom. Judicial Review in New Democracies: Constitutional Courts in Asian
Cases. New York: Cambridge University Press, 2003.
Jackson, Donald W., and C. Neal Tate. Comparative Judicial Review and Public Policy.
Westport, CT: Greenwood Press, 1992.
Jackson, Vicki C., and Mark Tushnet. Comparative Constitutional Law. New York:
Foundation Press, 1999.
Kommers, Donald. The Constitutional Jurisprudence of the Federal Republic of
Germany, 2nd ed. Durham, NC: Duke University Press, 1997.
Marbury v. Madison, 5 U.S. 137 (1803).
O’Brien, David M. Storm Center: The Supreme Court in American Politics, 6th ed. New
York: W. W. Norton, 2002.
John C. Blakeman
Judicial Selection
The variety of methods used for selecting judges in different countries
reflects the different approaches adopted to determine the role of the judiciary
in each particular system of government. The use of direct elections in the
United States at the state level, for example, is an indication of the fact that
judges in the United States are viewed as powerful agents of the state in a sys-
tem of government that has a strong historical commitment to direct elections
at state level. More commonly in democratic systems, particularly those based
on an Anglo-U.S. common law system, the democratic input is less direct, leav-
ing the choice of judge to the executive, with or without the involvement of
a judicial appointments commission of some form.
Judicial appointment by a government minister is intended to ensure
a degree of political accountability in the process while removing the danger
that judicial independence might be undermined if judges are required to cam-
paign and win majority public support in a direct election. In most civil law
systems, on the other hand, in which judges have traditionally been seen less
as a branch of government than a part of the civil service, the judiciary is nor-
mally recruited from among law graduates who complete an examination-based
judicial training course.
Thus a variety of approaches to the role of the judiciary in the govern-
mental system has led to wide differences in selection methods even among
states that can broadly be termed liberal democracies. A common factor
present in these different systems is that—with the notable exception of the
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United States—the way in which judges are chosen has traditionally been
regarded as relatively uncontroversial compared to the appointment of legis-
lators or the executive. However, as the role of judges has grown around the
world, particularly in the highest 
appellate
and constitutional courts, debate
about judicial selection has intensified, and many countries have introduced
significant changes in the way they choose their judges. These reforms have
been intended to address concerns about the independence, accountability,
and composition of judiciaries in the light of their expanding roles.
I N D E P E N D E N C E   A N D   A C C O U N TA B I L I T Y
It is widely accepted that a good judicial selection system promotes and
protects judicial independence. The link between judicial independence and
judicial appointments is a recurring theme in the growing body of international
treaties and declarations on judicial independence. These documents stress the
need to prioritize freedom from executive pressure in the appointments
process to ensure that judicial impartiality in decision making is maintained.
Yet in practice most judicial selection systems do involve the executive in
some way. Even in the United States, where the constitutional separation of the
functions of the legislature, executive, and judiciary is relatively strict, the federal
judiciary is appointed by the president, and governors are often involved in the
appointment of state judges. Critics of this type of system argue that when judges
owe their office to a politician, there is an inevitable threat to the impartiality of
their decision making.
However, whether this is the case in practice depends on a number of other
factors, such as the culture of independence in the legal profession, the status
of the judiciary in the particular society, and the nature of the judges’ 
tenure
arrangements. If judges have security of tenure and do not look to the executive
for reappointment, they are not under pressure to curry favor through their deci-
sion making. As a result, even in countries in which appointments are made that
are overtly political, those chosen may, in practice, disappoint the expectations
of the politicians who appoint them. U.S. President Dwight D. Eisenhower
(1890–1969), for example, claimed that the appointment of Earl Warren
(1891–1974) to the U.S. Supreme Court was the worst mistake of his presidency
because once appointed, Justice Warren was responsible for a number of notably
liberal judicial decisions. Once appointed, the judicial culture of independence
can be stronger than the previous political allegiances.
Despite examples of judicial independence surviving the politicization of
the appointments process, there is a justified concern that executive-appointed
judges may be improperly influenced in their decision making. The explanation
for the widespread involvement of the executive in judicial selection, despite
the potential threat that it poses to judicial independence, is found in the com-
peting demands of democratic accountability. If judges are required to exercise
their discretion in interpreting the law in ways that have political and policy
implications, then a strong argument exists for representative election. In the
light of the global expansion in judicial power, the tension between these two
competing principles of judicial independence and accountability is a dominant,
probably irresolvable, and arguably healthy feature of most judicial selection
processes.
One example of this tension is the controversial question of whether the
views of judges should be scrutinized in public on appointment either by a judi-
cial appointment commission or legislative committee. The argument for some
sort of pre- or postappointment scrutiny grows stronger the greater the role of
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appellate: a court having jurisdiction to
review the findings of lower courts
■ ■ ■  
tenure: the right to hold land, position, or
status over the long term, or the act of
doing so

the judges. Supporters of scrutiny argue that the belief that judges can interpret
constitutional principles or human rights with 
absolute
political
neutrality
is
a myth and that those who select the judges, as well as the public at large, have
a right to know something about the views and values of the judges who will
be making decisions of profound political significance. Critics of this form of
scrutiny, in contrast, argue that questioning judges about their politics
undermines their independence and brings the judiciary into disrepute. The
U.S. Senate confirmation hearings of federal judicial appointments are widely
condemned in many countries for this reason—although it is arguable that the
reputation of the U.S. confirmation process has been unfairly tarnished by a few
high-profile failures and that not all such hearings need become unacceptably
politicized. The public interviews that are carried out by the Judicial Service
Commission in South Africa, for example, have generally been credited with
introducing greater openness and accountability to the selection process with-
out undermining the privacy or independence of the judges.
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absolute: complete, pure, free from restric-
tion or limitation
neutrality: the quality of not taking sides, as
in a conflict
■ ■ ■  
SANDRA DAY O’CONNOR AT HER SENATE CONFIRMATION HEARING ON SEPTEMBER 10, 1981.
In September 1981 Texas jurist Sandra Day O’Connor was confirmed by the Senate
Judiciary Committee as the first female associate justice on the U.S. Supreme Court.
The committee is a small group of senators who must approve of the selection in
order for the full Senate to vote to confirm the nominee by a majority. 
(SOURCE: AP/ WIDE
WORLD PHOTOS)

C O M P O S I T I O N   A N D   D I V E R S I T Y
Another growing concern in many judicial selection processes is the aware-
ness of the need for greater diversity in the composition of judiciaries. In common
with all public institutions of power, the need for a degree of diversity is increas-
ingly recognized as a prerequisite to securing public confidence and legitimacy.
Two generalizations can be made about the composition of judiciaries around the
world. First, the more activist the judiciary, the less representative in terms of gen-
der, ethnicity, and social background of the community as a whole it tends to be.
Second, the higher the rank of the judiciary, the less representative that rank will
be. Women and members of minority ethnic groups tend to feature in greater
numbers in those judicial systems in which judges have less power and prestige.
In France, for example, where women make up nearly half the judiciary, judges are
regarded as civil servants rather than a branch of the government and do not
generally enjoy the equivalent status of many common law judges. Moreover, it is
notable that even in France the ratio of men to women changes at the higher,
more powerful ranks, where men outnumber women two to one.
It is increasingly common for judicial selection criteria to reflect concern
about the need for greater diversity by stating that appointments will be made
based on qualifications and regardless of such factors as ethnic origin, gender,
marital status, sexual orientation, political affiliation, religion, or disability. In
some countries, however, the need for greater diversity has been recognized as
requiring a positive inclusion into the selection criteria. In Canada, for example,
the broad statutory criteria applied by the Ontario Judicial Appointments
Advisory Committee in selecting judges are spelled out in the 1990 Courts of
Justice Act and include “assessment of the professional excellence, community
awareness, and personal characteristics of candidates and recognition of the
desirability of reflecting the diversity of Ontario society in judicial appoint-
ments” (Chapter 43, Section 9).
Similarly, in South Africa, the constitution states that judicial appointments
must be made taking into account “the need for the judiciary to reflect broadly
the racial and gender composition of South Africa” (Section 174). Although there
is a widespread consensus that increasing diversity in the judiciary is inherently
positive, it is also acknowledged that there are real problems in reconciling the
goal of appointing a more representative judiciary with the principle of judicial
impartiality. If judges are to decide each case without “fear or favor,” as most judi-
cial oaths require, they cannot be selected as representatives of any particular
group in the same way as a member of a legislator can be.
In recognition of this difficulty, an alternative approach to the question of
the composition of the judiciary is gaining popularity in many jurisdictions. This
replaces the concept of representativeness with the doctrine of “fair reflection.”
This more flexible principle holds that the judiciary should reflect through its
composition the interests of the community that it serves. It moves away from
the effect of the particular backgrounds of individual judges on particular deci-
sions toward a broader approach that seeks to link the judiciary as a group to
the society in which it operates. In so doing, it reduces the danger posed to the
principle of individual impartiality.
J U D I C I A L   A P P O I N T M E N T S   C O M M I S S I O N S
The growing pressure around the world to ensure the selection of more
diverse judiciaries and to strike a better balance between judicial independence
and accountability has led to substantive reform of many selection processes.
One of the most common changes has been the move to establish a judicial
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F A S T   F A C T S
The Code of Conduct for United States
judges notes that a judge’s integrity and
independence are entirely dependent on
whether a judge acts without “fear or favor.”
■ ■ ■  

appointments commission. In North America the use of commissions increased
significantly in the late twentieth century so that thirty-three states and the District
of Columbia created some form of commission. These are often termed “merit
plans” because they are intended to remove politics from the appointment process
and replace it by appointment on merit alone. In Canada, appointment commit-
tees have grown in popularity since they were first introduced in the 1980s.
Likewise, many African systems also now use commissions. The best known and
highly regarded is the Judicial Service Commission set up in South Africa in 1994
under the new post-apartheid constitution. In the United Kingdom all three juris-
dictions have recently moved to a commission-based system, and debate has
grown on the desirability of such reform in India, Australia, and New Zealand.
These developments are not limited to the common law world; a similar
trend occurred in European civil law countries in the early years of the twenty-
first century. Although these countries employ a formalized judicial career struc-
ture, a growing number have introduced commissions in the form of higher
judicial councils to appoint and promote judges. These have been identified as
both a consequence and a cause of increasing judicial power.
As more commissions are established around the world, the variety of mod-
els grows. Each system adopts a form of commission that suits its own legal and
political culture. Some have complete control over the judicial selection
process, whereas others are recommending bodies that put forward the names
of suitable candidate to the executive. The extent of executive influence in the
system ranges from extensive discretion to select from a long list of names to
that of rubber-stamping the commission’s choice of candidate.
In addition, there are many variations of commission and different types of
selection processes for different ranks of judges. In South Africa, for example, a
distinction is drawn between the procedure for appointing constitutional judges
and ordinary judges of the High Court and Court of Appeal. For the latter, the
Judicial Service Commission advises the president of its choice of candidate,
who is required to appoint the Commission’s choice. However, in relation to
the Constitutional Court, the Commission submits a list of nominees, which
must include three names more than the number of judges to be appointed.
The president then makes a selection from this list. The president may also
reject, with reasons, unacceptable candidates and require supplemental ones,
although this has never occurred.
In almost all U.S. states in which commissions are used, the appointing
authority (usually the governor) is obliged to choose one of the commission’s
nominees, although not necessarily the first on the list. The Judicial
Appointments Advisory Committee in Ontario similarly provides the attorney
general with a ranked shortlist of at least two recommended candidates with
accompanying reasons for its decision. The attorney general must appoint a
candidate on the list, although as in South Africa the entire list can be rejected
and a new one requested.
It is often claimed that the makeup of a commission is a determining factor
in its effectiveness. Who the members are, how long they serve, and, equally
important, who appoints them are relevant because they have a bearing on the
degree of independence and accountability of the commission. Just as the inde-
pendence of judges is affected by their appointment and tenure arrangements, so
too is that of the people who appoint the judges. Here as well, the details differ
significantly from one commission to another.
The makeup of the commissions is partly dependent on their size, which
ranges from twenty-three members in South Africa to as few as five in many U.S.
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states. Most commissions include a diversity of members including lay people,
lawyers, judges, academics, and, sometimes, elected politicians. Commissions
that have gained strong reputations as independent and effective bodies tend to
be those that have a high degree of diversity among their members who do not
see themselves as having been appointed as representatives of an interest
group, but who are first and foremost committed to the collective goal of
appointing the highest quality judges from the widest possible range of back-
grounds. The lesson that should be learned from the experiences of commis-
sions is that the independence of the commission (both cultural and structural)
and the diversity of its membership are the keys to ensuring that appointment
commissions select high quality judges and command confidence in the selec-
tion process.
See also: 
Civil Law; Common Law; Judicial Independence.
B I B L I O G R A P H Y
Goldman, Sheldon. Picking Federal Judges. New Haven, CT: Yale University Press, 1997.
Malleson, Kate. “Creating a Judicial Appointments Commission: Which Model Works
Best?” Public Law (Spring 2004):102–121.
“Special Issue on Judicial Appointments.” Alberta Law Review 38, no. 3 (November
2000).
Kate Malleson
Juries
Trial by jury is one of the most controversial yet enduring modes of dispute
resolution that the world has ever known. Over the centuries juries have been
praised, parodied, and pilloried. The institution of jury trial seems under
constant threat—from intellectual ideologues, from crass dictators, and from
cost-cutting bureaucrats who see it as an expensive anachronism in a modern
world. Some states that once made use of juries discarded them, only, like
Russia and Spain, to reintroduce them later.
At the beginning of the twenty-first century, jury trial existed in some form
in over fifty countries. It would be a daunting exercise to analyze each and
every one of these systems, as the variations among them are many. Indeed,
given the myriad of variations, identifying the core of what constitutes a jury
is itself a challenge. In some countries, in particular the United States, juries
decide both civil and criminal cases, but in most countries the civil jury has
fallen into disuse.
The size of the jury that hears a case varies from six to fifteen, depending
on the law of the jurisdiction. Likewise, the qualifications for jury service differ
among countries and may be revised from time to time within the same coun-
try. In some jurisdictions lawyers may question and challenge prospective
jurors, both for-cause and peremptorily (i.e., without the challenger having to
supply a reason), whereas in other countries, the requisite number of persons
who are needed to hear the case are empanelled with no questions asked of
them. Although in most areas, a jury verdict, especially in a criminal case, must
be unanimous, in others a supermajority (e.g., two-thirds, three-fourths) or
even bare majority verdict may be permissible.
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These and other variations in jury systems throughout the world may be
attributable to the social, political, and cultural context of the particular coun-
try, as well as its substantive and procedural laws and whether it employs an
adversarial (i.e., convict the guilty) or inquisitorial (i.e., seek the truth) mode
of trial. Although analyzing the numerous variations and their relative merits is
a daunting task, core common characteristics of the jury can be identified and
used, not simply for definitional purposes, but to understand both why the
institution of jury trial has endured as long as it has and to appreciate the case
for its continued existence.
H I S T O R Y   O F   T R I A L   B Y   J U R Y
England is generally credited as being the birthplace of the jury, and indeed,
most states that utilize juries have the British to thank for introducing jury trial
into their country. However, many European strands can be traced into the for-
mation of the English jury system, and jury trial long predates the English
model. In ancient Greece Socrates (470–399 
B
.
C
.
E
) was tried by a jury of 500 men
(women not being allowed to participate in civic affairs at that time), who were
chosen by lot, in a “People’s Court.” There were no witnesses (Socrates’s accus-
ers first argued their case, then Socrates, in his own defense), and no judge to
instruct the jurors. Nor were the jurors given the opportunity to discuss
the merits of the case amongst themselves. Rather, they simply voted, and, by
a majority of 280 to 220 (note that a bare majority vote was all that was needed
to convict), found Socrates guilty of corrupting the youth of Athens. The jury
was subsequently charged with fixing the penalty, a practice that is alien to most
modern jury systems (the United States is the primary exception, and there only
when the death penalty is in issue).
As is obvious and unsurprising, the jury trial of ancient Greece is distinguish-
able in many respects from its modern counterpart. Ever since its inception, the
jury has been in a constant state of evolution. In England, for example, whereas
the jury originally consisted of the accused’s neighbors who were chosen
because of their knowledge of the facts, now the objective is to have jurors who
come to their task ignorant of the facts. And, whereas once a unanimous verdict
was required to convict a criminal defendant, now a ten-to-two verdict suffices in
some instances.