What Makes an Ethical Judge?

At a time when too many judges are being implicated in scandals, a high court judge reminds us of the ethical qualities judges must have. Illustration: Lisa Nelson

Our judiciary has been plagued of late by misdemeanours, unethical and even disgraceful conduct on the part of certain members, eroding public confidence in judges and in the judicial process. None of this bodes well for a judiciary that always prided itself on the highest ethical standards, integrity and honesty. Perhaps it is time for some serious introspection into our roles as judges.

What are the ethical standards to be followed and practised by judges? How should we behave? What do the public expect of us?

The Bangalore Principles of Judicial Conduct recognise that “a judiciary of undisputed integrity is … essential for ensuring compliance with democratic principles and the rule of law. Even when all other protections fail, it provides a bulwark to the public against any encroachment on the rights and freedoms entrenched under law”.

The core values to which all judges should subscribe are independence, impartiality, integrity, proprietary, equality, competence, and diligence.

Independence

The independence of our judiciary is entrenched in the Constitution, which provides that “the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”.

But this does not mean that judges are entitled to do as they please.

Justice Benjamin Cardozo in his book The Nature of the Judicial Process, (1921), warned that “…. The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight–errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life’. Wide enough in all conscience is the field of discretion that remains.”

This of course does not mean that judges should not be creative in moulding and adapting the law to make decisions that will affect the future course of social, economic, and sometimes even political, development.

In this regard “judicial activism”, a term that signifies an important source of judicial power, should be encouraged so as to ensure social justice. As Justice P.N. Bhagwati, a former Chief Justice of the Supreme Court of India, has emphasised, this power puts a heavy burden on judges as it demands a great degree of social sensitivity, creativity and accountability from them.

“The task of the judges takes them deeper into the future to make decisions which will affect the future course of social and economic and sometimes even political development and therefore, in all humility, they have to be aware of social needs and requirements and economic and political compulsions and to recognize changes taking place in a fast developing society and to develop and adopt laws to changing needs and requirements of the people. And on each occasion when they do so, they are expected to provide justifying reasons which must satisfy not only themselves but also critics and jurists, and the society itself, for what they decide. … it is important to remember that no other functionary of the state is subject to such rigorous form of accountability as the judges.”

Honesty and integrity

A strong and vibrant judiciary is dependent on women and men whose honesty and integrity are beyond question.

John Marshall, former Chief Justice of the United States, said: “The power of a judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, faith and confidence of the common man.”

If the judiciary loses the trust, faith, and confidence of the people, that will be the end of the rule of law and democracy.

The Bangalore Principles provide that

• A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer; and
• The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done.

Judicial aloofness and detachment

A judge is required to dispassionately decide who is right and who is wrong in accordance with the law.

Of course, this aloofness does not mean that we should live in ivory towers. Nor does it mean that a judge should not be alive to the problems of society or that she/he should ignore the day-to-day realities of life. Judges should be able to understand the needs of society and connect to the problems and difficulties of the weaker sections of society and to provide access to justice to the poor and downtrodden.

Humility

Humility is the quality which makes judges realise that they are neither infallible nor omnipotent. Without humility, a judge becomes arrogant, opinionated, and perverse with a closed mind, believing that lawyers do not know much and that his or her decisions are always correct.

As United States circuit judge Harold R Medina has warned: “A Judge is surrounded by his subordinates, lawyers and litigants who keep telling him what a noble, wonderful, wise and knowledgeable person he is. The moment he starts believing them he becomes a lost soul, ending up the opposite of all that a judge should be.”

Judges should be more concerned about rendering justice and less about trying to exhibit their erudition, intelligence or power.

Many successful and brilliant lawyers fail to make good judges because they are obsessed with showcasing their intelligence and knowledge in every decision, rather than with ensuring that justice is done. Some judges even believe that their own colleagues are incompetent and that only their judgments should carry the day. This is ‘judicial arrogance’ at its worst.

Judges should avoid the temptation to jump to conclusions. Deciding on a result without a full and proper hearing and then stubbornly sticking to it, will result in a search for the law and facts to fit the decision, rather than basing the decision on the facts and the law. Choosing the facts and law to support a predetermined view, and ignoring other relevant facts and law, amounts to judicial perversity.

The preparation of a judgment well in advance without the benefit of oral argument, is a practice that should be discouraged.

Impartiality

Judges are expected to disqualify themselves from hearings in which they cannot be impartial.

Furthermore, the Bangalore Principles provide that impartiality applies not only to a judge’s decision, but also to the process by which the decision is made. For example, judges are expected to ensure that their conduct “both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary”.

Conclusion

As judges in an ever-changing society, we must conduct ourselves with the highest degree of honesty and integrity at all times; we must dispense justice fairly and impartially, irrespective of who the litigants might be; and we must respect the principle of the separation of powers by exercising judicial restraint. We should continue breathing life into our Constitution by interpreting, giving effect to, and enforcing the rights entrenched in the Bill of Rights, thus ensuring public confidence in our courts. The concept of ubuntu, with its emphasis on community and human dignity, should serve to guide our thoughts and judgments.

We should remember that every time we don our robes and walk into our courts, we may have to decide the fate of a person relating to his right to property and shelter, his right to freedom, his right to livelihood, his right to a fair trial etc. It is imperative that we act responsibly and fairly.

The judiciary has a special role to play in the task of achieving socio-economic goals enshrined in the Constitution and while maintaining our aloofness and independence, we have to be aware of the social challenges in the task of achieving socio-economic justice for the people we serve.

I conclude with the words of Justice E.G. Brennan of Australia who observes that:

“The great judge is a bold judge, not because he chances his arm, but because he so perceives the philosophy and history of the law that he can sweep aside the incidental and reach for the essential, and fashion and refashion the basic principles so that they serve the society of his time.”

We should all strive to be good judges, deserving of the title we have.

This is a shortened, edited version of an article that will be published in The Judiciary.

The writer is a judge of the KwaZulu-Natal High Court.

© 2025 GroundUp. This article is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.

You may republish this article, so long as you credit the authors and GroundUp, and do not change the text. Please include a link back to the original article.

We put an invisible pixel in the article so that we can count traffic to republishers. All analytics tools are solely on our servers. We do not give our logs to any third party. Logs are deleted after two weeks. We do not use any IP address identifying information except to count regional traffic. We are solely interested in counting hits, not tracking users. If you republish, please do not delete the invisible pixel.