The Responsible Judge: Readings in Judicial Ethics

By John T. Noonan Jr.; Kenneth I. Winston | Go to book overview

A. Proclaiming Independence

1. The King Has a Bridle

The foundation for judicial independence was laid by William de Ralegh and Henri de Bracton when they set out the position that the king was subject to the law. Doing so, they asserted a principle whose presence is essential to the rule of law and whose absence has been a fatal flaw in every autocratic government from savage tribal organizations to modern totalitarian regimes. At the same time Ralegh-Bracton did not take the next step of saying that the judges could apply the law to the king. The passage in which they assert the principle but are unable to make the judges its defenders reads as follows, volume 2 of Bracton, The Laws and Customs of England (1270):

As to royal charters and acts of kings, the judges and private individuals should not and cannot question, and even if a doubt arises in them they cannot interpret them. Even as to doubtful and obscure matters--if, for example some phrase contains two meanings--the interpretation and will of the Lord King must be awaited; for it belongs to the one who legislates to provide interpretation. And even if the charter is entirely false because of an erasure or because the seal affixed is a forgery, it is better and safer that judgment proceed before the King himself. Again: no one can judge the act or charter of the King in such a way that the act of the King is annulled. But one can say that the King should do justice and do well--and by the same token will do badly if he does not-- and so impose upon him the correction of an injury, lest the King and the justices fall into the judgment of the living God because of an injustice.

The King has a superior, to wit, God. Also, the law by which he has been made King. Also, his own court, to wit, the earls and barons; because the earls are spoken of as if they were the partners of the King, and he who has a partner has a master. Therefore, if the King should be without a bridle, that is, without

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The Responsible Judge: Readings in Judicial Ethics
Table of contents

Table of contents

  • Title Page iii
  • Copyright Acknowledgments v
  • Contents vii
  • Preface xiii
  • Part I The Ideal Judge and the Partial Judge 1
  • A. The Impartiality of God 3
  • B. The Mask of Impartiality 22
  • C. Monsters 35
  • D. Political Judges 50
  • Part II Judging 97
  • A. Waiting for the Litigants 105
  • B. Deciding on the Record 113
  • C. Adjudicating the Case at Hand 115
  • D. Creating a Precedent 121
  • E. Following the Rules Laid Down 129
  • F. Exercising Judgment 138
  • G. Preserving Proportion 142
  • H. Displaying Compassion 148
  • I. Deliberating with Colleagues 156
  • J. Writing and Dissenting 171
  • K. Judging in a Different Voice 188
  • L. Managing Public Institutions 208
  • M. Settling a Case 223
  • N. Blowing the Whistle? 243
  • O. Retaining One's Humanity 257
  • Part III Independent and Accountable 265
  • A. Proclaiming Independence 267
  • B. The Duty of Recusal 278
  • C. Forms of Accountability 309
  • Selected Bibliography 387
  • Index 391
  • About the Editors *
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