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ABSTRACT
It is not easy to find a fair balance between inappropriate speech on the one hand and the appearance of constraint and inaccessibility on the other. Also judges must deal with this difficult task. They must take care not to endanger values that are protected to secure the functionality of justice. This article deals with questions of why and how judges can fulfil this task and what might happen if they fail to do so. The article argues in favour of temperate speech using arguments from the fields of judicial ethics and normative ethics. It also offers examples of intemperate speech that might be dangerous to justice. Last but not least, the article mentions the relevance of judicial temperate speech for the concept of open justice thanks to which the judiciary might seek public confidence.
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Notes
1 The same approach to professional ethics is taken by Nicolson and Webb, but rather in general terms of the ethics of lawyers or attorneys. Donald Nicolson and Julian S. Webb, Professional Legal Ethics: Critical Interrogations (Oxford University Press 1999) 327.
2 The examples are drawn from the case law, literature and the media.
3 According to Ralf Dahrendorf it takes at least 60 years to make people in society (the citizens) democratic when the country undergoes a transition from totality to democracy. In 2023 there is still almost half of time needed left.
4 Pavel Rychetský also commented on the judicial decision held by his colleagues at the Constitutional Court. He said he was ashamed of this decision: ČT24. ‘Stydím se za rozhodnutí Ústavního soudu, který se zastal hoteliéra, uvedl Rychetský. Podle něj šlo o diskriminaci.' (2 June 2019) <https://ct24.ceskatelevize.cz/domaci/2831738-stydim-se-za-rozhodnuti-ustavniho-soudu-ktery-se-zastal-hoteliera-uvedl-rychetsky> accessed 29 September 2023
5 Rychetský disapproved Andrej Babiš as a representant of the Czech Republic because of his conflict of interests and his history as an alleged communist agent. See ČTK. ‘Doufám, že Ústavní soud nikdy nebude součástí Agrofertu, prohlásil jeho předseda Rychetský' (30 November 2022) <https://www.irozhlas.cz/zpravy-domov/babis-agrofert-ustavni-soud-rychetsky_2211301212_cen> accessed 29 September 2023 or ČTK. ‘Rychetský ostře o Babišovi: Nečekal jsem, že premiérem bude někdo s takovou minulostí.' (29 November 2020) <https://globe24.cz/domov/rychetsky-ostre-o-babisovi-necekal-jsem-ze-premierem-bude-nekdo-s-takovou-minulosti.> accessed 29 September 2023.
6 Neither supporters of Pavel Rychetský agreed with his political remarks: Josef Bouška. ‘Andrej Babiš nepatří na Hrad. A Pavel Rychetský do čela Ústavního soudu.' (12 December 2022) <https://www.seznam.cz/komentare/18823337-andrej-babis-nepatri-na-hrad-a-pavel-rychetsky-do-cela-ustavniho-soudu> accessed 29 September 2023.
7 Cf. decision of the Czech Constitutional Court of 5 May 2016, I. CC 2617/15, decision of the Czech Supreme Administrative Court of 22 July 2021, Nao 152/2021-32, but also others such as the decision of the Disciplinary Board of the Czech Supreme Administrative Court of 22 October 2014, 13 Kss 5/2014-122 etc.
8 Shuangling Li, ‘A Corpus-Based Study of Vague Language in Legislative Texts: Strategic use of Vague Terms' (2017) 45 English for Specific Purposes 98.
9 Jeremy Waldron, ‘Vagueness in Law and Language: Some Philosophical Issues' (1994) 82 California Law Review 536.
10 This type of temperance is referred to as judicial self-restraint.
11 The extent of the professional debate on this topic which has taken place and is taking place in the Anglo-American legal environment is illustrated for example by the following articles: Richard A. Posner, ‘The Meaning of Judicial Self-Restraint' (1983) 59 Indiana Law Journal 1, Richard A. Posner, ‘The Rise and Fall of Judicial Self-Restraint' (2012) 100 California Law Review 519, or also Lee Epstein and William M. Landes, ‘Was There Ever Such a Thing as Judicial Self-Restraint' (2012) 100 California Law Review 557, from the latest works: William J. Haun, ‘The Virtues of Judicial Self-Restraint’ [2018] National Affairs, <https://www.nationalaffairs.com/publications/detail/the-virtues-of-judicial-self-restraint> accessed 15 August 2022.
12 Cf. e.g. Dragoljub Popovic, ‘Prevailing of Judicial Activism over Self-Restraint in the Jurisprudence of the European Court of Human Rights' (2009) 42 Creighton Law Review 361.
13 In the Czech environment, the debate about this type of judicial temperance was triggered, for example, by a recent decision of the Czech Constitutional Court of 24 May 2022, PI. CC 32/21.
14 For example, the Czech Constitutional Court stated in the decision of 5 September 2016, I. CC 2617/15, that the judge must be temperate in speeches concerning political competition, in particular the public evaluation of individual candidates or election parties and groups or the formation of political coalitions.
15 Convention for the Protection of Human Rights and Fundamental Freedoms and successor Protocols [1950] art. 10 para. 2, The Czech Charter of Fundamental Rights and Freedoms 1993 art. 17 para. 4.
16 For example, confidence in independent, impartial and fair court decisions. Cf. the Czech Act on Courts and Judges 2002, art. 80 para. 5 and 6.
17 Decision of the Czech Supreme Administrative Court of 22 July 2021, Nao 152/2021-32.
18 For example, the obligation to respect judicial independence, impartiality and dignity of the judicial office, to ensure fair decision-making and to seek public confidence. Cf. the Czech Act on Courts and Judges 2002, art. 80 et seq.
19 Aharon Barak, The Judge in Democracy (Princeton University Press 2006) 102.
20 Arne J. Vetlesen, Perception, Empathy and Judgment (Pennsylvania State University 1994) 157.
21 Petr Osina, ‘Fuller's Procedural Theory of Natural Law' in Tomáš Sobek and others (eds), Philosophy of Law (Nugis Finem Publishing 2020) 59.
22 Nuno Garoupa and Tom Ginsburg, Judicial Reputation: A Comparative Theory (University of Chicago Press 2015) 21.
23 According to the Levitsky and Ziblatt, what is also essential for the survival of democracy is the so-called institutional temperance. This means patient self-control, self-discipline and tolerance. Therefore, they understand temperance more comprehensively and see its manifestations in other situations. I believe, however, that this view can also be extended to courts or judges. Cf. Steven Levitsky and Daniel Ziblatt, How Democracies Die (Jaroslav Veis tr, Prostor 2018) 151.
24 In the Czech Republic, it is mainly Act on Courts and Judges 2002, but also the Constitution, the Charter of Fundamental Rights and Freedoms, or the Convention for the Protection of Human Rights and Fundamental Freedoms.
25 These essential tasks of the courts and judges are discussed not only by legal and professional regulations, but also by scholarly articles. E.g. Emilios Kyrou ‘Attributes of a Good Judge' (Handbook for Judicial Officers – Impartiality and fairness 2013), <https://www.judcom.nsw.gov.au/publications/benchbks/judicial_officers/attributes_of_a_good_judge.html> accessed 18 August 2022.
26 The Czech law imposes these requirements on judges particularly in the Act on Courts and Judges 2002, art. 80 para. 1 and 2.
27 E.g. Act on Courts and Judges 2002, art. 80 para. 5.
28 More about the collision of purposes, e.g. Karl Larenz and Claus-Wilhelm Canaris, Methodenlehre der Rechtswissenschaft (3rd edn, Springer 1995) 153 et seq.
29 Martin Hapla understands the standards of professional ethics of judges as part of their positive morality, i.e. institutionalized moral standards applied within a specific social group. See Martin Hapla, ‘(Im)moral Lawyers: Problem of Justifying Norms of Professional Ethics' (2019) 27 Journal of Jurisprudence and Legal Practice 460.
30 Nicolson and Webb (n 1) 6.
31 Ethical standards may indeed overlap with legal standards to some extent. Cf. Jana Stehlíková, ‘Limits of Judicial Freedom of Speech and Their Moral Justification in Case Law of European Court of Human Rights and of Supreme Administrative Court' (2021) 160 The Lawyer - Scientific Review for Problems of State and Law 653.
32 Cf. Lon L. Fuller, The Morality of Law (Yale University Press 1964) 5.
33 These documents can also be an inspiration for judges from other countries, because national codes are largely consistent with the Bangalore principles, which are relevant for the performance of a judicial office in a wide range of countries. Moreover, it does not even matter, apparently, whether the judge comes from the continental or Anglo-American legal environment. The judicial codes of the individual American states include very similar rules. See e.g. ‘PART 100. Judicial Conduct | NYCOURTS.GOV’ <http://ww2.nycourts.gov/rules/chiefadmin/100.shtml> accessed 12 September 2022. ‘Alabama Judicial System’ <https://judicial.alabama.gov/library/rulescanons> accessed 17 August 2022.
34 The Bangalore Principles of Judicial Conduct (2002) <https://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf> accessed 26 August 2022 (‘Bangalore principles').
35 The Czech Union of Judges, ‘Set of ethical principles of judicial conduct' (2005) <http://www.soudci.cz/o-nas/eticke-zasady-chovani-soudce.html> accessed 26 August 2022 (‘Principles of Judicial Conduct').
36 The Czech Union of Judges gathers almost a third of Czech judges who voluntarily join this union. Membership in Union is not compulsory. The Union exists mainly because of the absence of the official body representing the whole judiciary.
37 Petr Angyalossy and others, ‘The Code of Ethics' (2020) <https://www.nsoud.cz/judikatura/ns_web.nsf/0/480C6A02F818B1DCC12586B00029183B/$file/ETICK%C3%9D%20KODEX%20(2).pdf> accessed 26 August 2022 (‘the Code of Ethics’).
38 Bangalore principles, point II.4.
39 Bangalore principles, point IV.6.
40 Principles of Judicial Conduct, point II.3.
41 the Code of Ethics, point II.5.
42 the Code of Ethics, point III.6.
43 the Code of Ethics, point III.11.
44 Ronald K. L. Collins and David M. Skover, The Judge: 26 Machiavellian Lessons (Oxford University Press 2017) xv–xvi.
45 Collins and Skover (n 44) xx.
46 Nicolson and Webb (n 1) 22.
47 Garoupa and Ginsburg (n 22) 20.
48 Ibid 41.
49 These moral considerations reflect the ideas of John Rawls. Cf. John Rawls, A Theory of Justice (Karel Berka tr, Victoria Publishing 1995) 257–58.
50 Rawls (n 49) 261.
51 ibid 260.
52 ibid 260.
53 Shame can be perceived as the loss of self-esteem and moral feeling based on the principle of law. Cf. ibid 260.
54 ibid 262.
55 Nicolson and Webb (n 1) 6.
56 Ibid.
57 ibid 8.
58 It would be possible to examine the moral reasons for exercising temperance in the behaviour of judges from the point of view of other, more modern theories (for example, ethics of care or feminism). This would, however, exceed the limits of this article. Moreover, the significance and spread of modern theories in society are not the same as with the classical theories.
59 The ethics of virtue raises the following crucial question: To be or to do? And assesses it in favour of the essence of being. Cf. Nicolson and Webb (n 1) 29.
60 ibid 30.
61 Cf. Justin Oakley and Dean Cockin, Virtue Ethics and Professional Roles (Cambridge University Press 2001) 4.
62 This concept of ‘good’ is derived from whether it is possible to achieve a certain purpose with it. Cf. Richard M. Hare, The Langugage of Morals (Oxford University Press 1952) 93.
63 Oakley and Cockin point out that, according to Philippa Foot, it is typical of the virtues that they are beneficial for individuals or even for the whole society. In this case it is possible to say that the virtues thanks to which judges can ensure the functioning of the judiciary, benefit the society. Cf. Oakley and Cockin (n 61) 16.
64 Temperance, in the general sense of the word, is also considered to be a judicial virtue by Lawrence B. Solum. Cf. Lawrence B. Solum, ‘Virtue Jurisprudence. A Virtue-Centred Theory of Judging' in Keith Swisher (ed), Judicial Ethics (Routledge 2017) 30.
65 Jussi Suikkanen, This Is Ethics: An Introduction (Wiley-Blackwell 2014) 126.
66 Solum (n 64) 33–34.
67 If the judge cares more about how his/her behaviour works, it is a hypocrisy. Cf. Collins and Skover (n 44) xi.
68 Nicolson and Webb (n 1) 30.
69 A moral example can take various forms. Whether that of a particular judge whose moral qualities have already proved their worth in the course of his/her function (but even so, his individual speeches must always be critically evaluated), or that of an imaginary one who represents a certain ideal. In a different context, such an example is offered by Ronald Dworkin, for instance: the ideal judge Hercules. Cf. Solum (n 64) 23.
70 John A. Gealfow, ‘Kantian Ethics' in Tomáš Sobek and others (eds), Legal Ethics (Leges 2019) 96.
71 According to the categorical imperative, which is the central concept of Kantian ethics, one should not do anything that he/she would not like to become a generally accepted rule. Cf. Suikkanen (n 65) 79.
72 Nicolson and Webb (n 1) 22.
73 ibid 24.
74 ibid 24.
75 Karolina Adamová and Antonín Lojek, Lawyers in Jokes, Proverbs and Sayings (Praha: C. H. Beck 2011) 105.
76 It i also a question of who is dignified judge and what is judicial dignity. According to Linda Tvrdíková judicial dignity ensures (as one of the many aspects) a public confidence in the judiciary. If parties consider the corny joke to be inappropriate for judges, it may also endanger public confidence in the judiciary in the end. Linda Tvrdíková, ‘Důvěra v soudce jako funkce důstojnosti soudce: Proč má být soudce důstojný a co to znamená?' (2022) 5 Jurisprudence 19–21.
77 ibid 20.
78 Collins and Skover (n 44) 1.
79 This remark refers to the fact that people are not perfect and judges are not ideal human beings. Everyone has drawbacks. However, judges must ensure that their drawbacks will not endanger any important interest or aspect of democratic judiciary.
80 Definitely, it did not help that he made his speech publicly in judicial role. However, it would not be any better if he made his speech as a private person. To be a judge means to be responsible for judicial office twenty four hours a day seven days a week. That is why such a speech would be still accountable to judge Bork.
81 ibid 115.
82 Collins and Skover (n 44) 114.
83 Cf. separate opinion to the decision of the Czech Constitutional Court of 8 August 2023, IV. CC 1827/23
84 ibid.
85 ‘A judge sent an inappropriate email, he will have a lower salary for three months' (Lidovky.cz, 20 May 2015) <https://www.lidovky.cz/domov/za-nevhodny-e-mail-bude-soudce-ctvrt-roku-brat-nizsi-plat.A150520_152829_ln_domov_ELE> accessed 20 August 2022.
86 ‘The judge punished for sending out emails with fictional interviews failed at the Constitutional Court' (Novinky.cz, 15 November 2016) <https://www.novinky.cz/domaci/clanek/soudce-potrestany-za-rozesilani-e-mailu-s-fiktivnimi-rozhovory-u-us-neuspel-40014998> accessed 20 August 2022.
87 ‘Judge Miroslav Čapek breached its obligations again. He will lose fifteen percent of his salary' (ČT24 – Česká televize, 6 September 2017) <https://ct24.ceskatelevize.cz/domaci/2232031-soudce-miroslav-capek-znovu-porusil-sve-povinnosti-prijde-o-patnact-procent-platu> accessed 20 August 2022.
88 Jan Hejl, ‘The judge wrote derisive texts about Muslims. Should the terrorists from IS be offended? he defended himself before the Senate'(Aktuálně.cz 26 May 2016) <https://zpravy.aktualne.cz/domaci/soudce-celi-zalobe-kvuli-posmesnym-textum-o-muslimech-maji-s/r~4710467e232e11e6a4100025900fea04/> accessed 20 August 2022.
89 Decision of the Czech Supreme Administrative Court of 15 September 1999, 7 Nd 310/99.
90 Decision of the Czech Constitutional Court of 22 January 2008, II. CC 3164/07.
91 The time of commenting a decision is a very delicate factor. Sometimes it may be dangerous to comment on the closed cases, which may be returned to the judge, however, because of the use of exceptional review procedures. However, it is probably very strict to demand that judges do not defend their decisions and explain them in the media when they do not know what will happen in the coming years. More on this issue: Alžběta Nemeškalová Rosinová, Recusal of Judges in the Practice of Czech Supreme Courts (Praha: C. H. Beck 2021) 42.
92 Even the arguments in favour of one of the legal conclusions may be inappropriate. Cf. Andrew L. Kaufman, ‘Judicial Ethics: The Less-Often Asked Questions' in Keith Swisher (ed), Judicial Ethics (Routledge 2017), 427.
93 Cf. Judgment of the European Court of Human Rights of 15 December 2005, complaint no. 73797/01, Kyprianou vs. Cyprus. In this case, the judges were ultimately excluded from the hearing of the case. Or see also the Decision of the Czech Supreme Administrative Court of 13 December 2018, Nao 164/2018-83.
94 Sarah M. R. Cravens, ‘In Pursuit of Actual Justice' in Keith Swisher (ed), Judicial Ethics (Routledge 2017) 280–81.
95 ibid 279.
96 Judge Zbránek was punished for the vulgarisms in his satirical texts by disciplinary measures, in the end. Cf. Decision of the Disciplinary Board of the Czech Supreme Administrative Court of 6 June 2016, 11 Kss 6/2015-53. Also Lubet understands the use of the vulgarisms as the lack of compliance with the necessary standard of the judges’ conduct. Cf. Steven Lubet, ‘Judicial Ethics and Private Lives' in Keith Swisher (ed), Judicial Ethics (Routledge 2017) 448.
97 Judge Čapek attended a forbidden celebration during the coronavirus pandemic and then described the whole event glowingly in the media. Cf. Petr Dimun, ‘President of the Teplice Court wants to remove Judge Čapek from his office' (Česká justice, 27 November 2021) <https://www.ceska-justice.cz/2021/07/predseda-teplickeho-soudu-chce-soudce-capka-zbavit-talaru/> accessed 24 August 2022.
98 Jeffrey M. Shaman, ‘Judicial Ethics' in Keith Swisher (ed), Judicial Ethics (Routledge 2017) 179.
99 It is not much of a problem when judges criticize the judicial leadership, the problem is when judicial officials criticize ordinary judges. Criticism from the officials can be perceived as exerting a dangerous influence on judges. Cf. ‘Judge Čapek from Teplice was not guilty. He has a right to criticize his superiors, said Supreme Administrative Court' (EuroZprávy.cz, 2 November 2016) <https://eurozpravy.cz/domaci/zivot/173020-teplicky-soudce-capek-se-neprovinil-na-kritiku-nadrizenych-ma-pravo-rekl-nss/> accessed 21 August 2022.
100 Thus, the statement of the President of the Czech Constitutional Court that he is ashamed of one of the decisions of the Senate of the Constitutional Court is regrettable. Cf. ‘I am ashamed of the decision of the Constitutional Court which has defended the hotelkeeper, said Rychetský. According to him, this was a discrimination' (ČT24 – Česká televize, 2 June 2019) <https://ct24.ceskatelevize.cz/domaci/2831738-stydim-se-za-rozhodnuti-ustavniho-soudu-ktery-se-zastal-hoteliera-uvedl-rychetsky> 21 August 2022.
101 Cravens (n 94) 277.
102 Case R in Sussex Justices, ex parte McCarthy [1924 1 KB 256] [1923] All ER Rep 233.
103 Burkhard Hess and Ana Koprivica Harvey, ‘Open Justice in Modern Societies: What Role for Courts?' in Burkhard Hess and Ana Koprivica Harvey (eds), Open Justice. The Role of Courts in a Democratic Society (Nomos 2019) 9.
104 ibid 10–11.
105 The concept of open justice has not yet resolved a question to what extent and by what means the judges should bring their work closer to the public. Cf. ibid 19.
106 ibid.
107 Communication should still be effective, and judges or courts should not seek supporters and strengthen their influence where they do not need it. Cf. ibid 43–44.
108 The judge said the series reminded her of the work of the Belgian artist René Magritte, who painted a pipe and wrote under it ‘this is not a pipe', because it was just a picture of a pipe. This also was not a real court. Cf. Ruth Herz, ‘The Dilemma of Open Justice in the Present Political, Social and Cultural Climate' in Burkhard Hess and Ana Koprivica Harvey (eds), Open Justice. The Role of Courts in a Democratic Society (Nomos 2019) 121.
109 ibid 117.
110 Judith Resnik, ‘The Function of Publicity and of Privatization in Courts and Their Replacements (from Jeremy Bentham to #MeToo and Google Spain)' in Burkhard Hess and Ana Koprivica Harvey (eds), Open Justice. The Role of Courts in a Democratic Society (Nomos 2019), 193.
111 All of this, of course, on condition that the principle of temperance is respected.
112 Michal Bobek, ‘Epilogue: Past and Looming Challenges to Open Justice’ in Burkhard Hess and Ana Koprivica Harvey (eds), Open Justice. The Role of Courts in a Democratic Society (Nomos 2019) 284–85.
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