Codes of Conduct for the Judiciary in Civil Law Countries: The Dutch Example
| Author | Alex F.M. Brenninkmeijer |
| Date | 01 March 2004 |
| DOI | 10.1177/016934410402200104 |
| Published date | 01 March 2004 |
| Subject Matter | Part A: Article |
CODES OF CONDUCT FOR THE JUDICIARY IN CIVIL
LAW COUNTRIES: THE DUTCH EXAMPLE
ALEX F.M. BRENNINKMEIJER*
Abstract
Is a code of conduct for the judiciary necessary for safeguarding the reliability of
courts? In the civil law tradition codes of conduct are not widespread. Some
international initiatives follow the example of countries like the United States and
Canada in drafting codes of conduct. Can a code make a contribution to the
professionalism of courts? Is it necessary to translate legal safeguards for fair trial into
a code? On basis of the Dutch experience and the case law of the Court on Human
Rights in Strasburg this article analyses the relation between legal fundaments of fair
trial, such as independence and impartiality and the envisaged content of a code of
conduct. For various reasons a code of conduct is useful. In a more individualistic
society in which shared norms and values are less obvious, a code of conduct can
provide such shared values for judges. Such a code can provide more transparency and
can support discussions about the does and don’ts of judges.
1. INTRODUCTION
Recently the Alabama Court of the Judiciary has removed the Chief Justice
of the State Supreme Court from office for failing to comply with a federal
court order that he remove a monument displaying the Ten Command-
ments from the rotunda of the State Judicial Building. The Chief Justice
stated he stood by his earlier statement to the Judicial Inquiry Commission:
‘I did what I did because I upheld my oath. And that’s what I did, so I
have no apologies for it. I would do it again. I didn’t say I would defy
the court order. I said I wouldn’t move the monument. And I didn’t
move the monument, which you can take that as you will.’
1
The decision of the Alabama Court was, briefly said, based upon the reason
that the Chief justice had to obey the Court order, which obliged him to
remove the monument displaying the Ten Commandments from the hall of
Netherlands Quarterly of Human Rights, Vol. 22/1, 59-75, 2004.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 59
* Professor of Constitutional and Administrative law, Faculty of law, University of Leiden, the
Netherlands.
1
In the Matter of Moore, Final Judgment, 13 November 2003. This is an extract from
www.AJS.org.
60
the court building. It was no matter of freedom of religion, or whatever
freedom at all. This decision shows the intimate link between good conduct
of judges and the rule of law. The judge cannot place himself above the law,
even when he stands for the Christian roots of the Western legal system.
This case brings us to the question what the relation is between the rules
of good conduct of judges and the legal fundaments like the rule of law and
fundamental rights. Globally seen there is – with respect to codes of conduct
for the judiciary – a remarkable difference between civil law countries on the
one hand and common law countries on the other. In an important number
of common law countries codes of conduct for the judiciary are laid down in
written texts. In civil law countries such written codes are rare. On the
European continent only Italy has a code of conduct for judges and public
prosecutors. This code was the result of a more general decree of the Italian
Government, according to which all branches of the civil service should
adopt codes of ethics, in order to ensure a high standard of services to the
citizens. This decree was an answer to social upheaval about corruption and
other forms of misconduct.
In Europe codes of conduct for the judiciary on the whole are not
widespread, although the development of the former communist Eastern
European countries brings up a discussion about codes of conduct. At the
end of the 1960s the discussion on ethical standards for judges started in de
United States of America and several Anglo-Saxon countries followed this
initiative.
2
In the United States the recruitment of judges by election formed
a mayor reason to come to a codification of ethical rules for judges. A
member of the House of Lords of Great Britain, Lord Browne-Wilkinson
gave the following reasons for the growing interest for codes of conduct:
‘First, the spread from the USA of the concept of a justiciable
constitution or Bill of rights has brought the judiciary of many
common law countries into the political arena: it is to be noted that the
first move towards judicial guidelines was taken in the USA. Second,
the media have discovered how profitable it is to criticise judges and
judicial decisions. People now love to hear or read about the feet of
clay of those in positions of authority. Third, the spread of notions of
‘‘total lawyering’’ (like ‘‘total war’’) teaches that virtually any stratagem
is justifiable in litigation if it may benefit the client. Thus, to allege that
the judge was, or appeared to be, biased is now frequently advanced on
inadequate grounds for purely tactical reasons.’
3
Alex F.M. Brenninkmeijer
2
Thomas, J.B., Judicial ethics in Australia, The Law Book Company Limited, North Ride/
Melbourne/Brisbane/Perth 1988, provides a bibliography.
3
Lord Browne-Wilkinson, ‘Speech’, Seminar on Judicial Standards: Contemporary Constraints
on Judges, Institute of Judicial studies, New Zealand, 21-23 September 2000, pp. 1-2, as
quoted by: Nicholson, R.D., ‘Judicial Ethics: Issues for Discussion’, Journal of Judicial
Administration, Vol. 69, No. 11(2), 2001.
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