Vol. 11 No. 11 (November 2001) pp. 525-527.
FREEDOM OF EXPRESSION AND THE CRITICISM OF JUDGES: A COMPARATIVE STUDY OF EUROPEAN LEGAL STANDARDS, by Michael
K. Addo (Editor). Burlington, VT: Ashgate Publishing Company, 2000. 249pp. Cloth $99.95. ISBN: 0-7546-2129-4.
Reviewed by Mark C. Miller, Department of Government, Clark University.
This collection of short essays explores the question of the rules and norms governing criticism of judges in a
variety of European countries. For an American reader, the entire topic seems quite unusual. American politicians,
academics, lawyers, journalists, pundits, and sometimes even judges rarely hesitate to criticize judicial rulings
and/or judges with whom they disagree. However, the traditions in the mature democracies of Western Europe and
in the evolving democracies in Eastern Europe are usually quite different than the rough and tumble American approach.
The various essays in this book attempt to explore how specific societies are balancing the need for judicial independence
with the need for judicial accountability of some type. Is criticism of judges and/or their decisions harmful for
independence, or necessary to promote the values of free speech?
In general, this collection of country-specific essays does a good job of exploring how a variety of countries
in Europe today approach the balancing of freedom of debate with the need for judicial independence and respect.
Most of the essays give a quick overview of the judicial system before examining how each nation approaches the
question of criticism of judges. All of the authors (except for the author of the essay on Russia) work and live
in the countries they discuss. Each author approaches the question from the perspective of his or her own legal
system, which means that the chapters do not all cover the same specific issues. This difference in emphasis from
chapter to chapter is quite illuminating because it gives the reader unfamiliar with these legal systems a quick
glimpse into how these
societies understand the basic functions of judges. It also shows how much respect each system gives to its judiciary.
Therefore, for someone who needs
a quick understanding of the legal traditions of a variety of nations, this book can be a useful resource. I doubt,
however, that specialists on any particular legal system would find the book quite as useful unless they were interested
in broadening their expertise to include new countries.
In addition to an interesting opening chapter written by the editor, which gives a good overview of the question
at hand, there are individual chapters on the following countries: England and Wales, Ireland, Germany, Austria,
Belgium, France, Denmark, Iceland, the Netherlands, Italy, Greece, Russia, and Hungary. There are also two concluding
chapters written by the editor which deal with interpretations of the European Convention on Human Rights on this
subject. The editor declares that the European Court of Human Rights has stressed the importance of the principle
of open debate and free speech, and has rejected various attempts to justify restrictions on criticism of public
officials. Although the European Court of Human
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Rights has used a much stricter interpretation for criticism of judiciaries than it has used for criticism of other
governmental institutions, this principle of open debate also applies to the criticism of judges and their decisions,.
Most of the authors of the essays in this collection are law professors, judges, or practicing lawyers. Since almost
none of the authors are political scientists, the essays tend to have a legalistic feel to them. I think political
scientists would ask very different questions about the role of judges in each society and about the issue of how
much criticism of these judges the societies should tolerate. Nevertheless, the opening chapter does explore the
variety of forms that criticism of judges can take. The editor notes that, "In all European countries, criticism
which takes the form of expression of disagreement with an opinion or a particular course of
action is tolerated." (p. 16). The editor also addresses general criticism aimed at the entire judicial system,
and says that most societies tolerate this kind of abstract criticism of judges.
The editor worries, however, about abusive criticism of the judiciary and of judges. This notion of abusive criticism
is handled differently by each of the chapter authors. For example, the chapter on England and Wales concludes
that, "Today, we can say of the UK judges that they are not fragile flowers that will wither in the heat of
controversy and hence they do not fear criticism nor need they seek to sustain unnecessary barriers to complaints
about their operations or decisions. This stable position is aided by the settled tradition among the press and
the public to refrain from making scurrilous criticism of judges." (p. 41). On the other hand, the
chapter on Ireland spends a fair amount of space discussing how judges protect themselves by using contempt of
court actions in that country. The chapter on Germany notes that German judges do not have such a contempt of court
power, although German judges feel less constrained than do their British or American counterparts about commenting
publicly on general political issues. Since German judges can and do make public political comments, the author
concludes that they must expect a certain amount of public criticism in return. The chapter on Austria mostly focuses
on when judges should recuse themselves. The chapter on Belgium focuses mostly on civil actions for defamation
brought by judges against their critics. The Danish and French chapters mostly discuss criminal actions brought
critics of judges in those nations. In the chapter on the Netherlands, the author stresses that the consensus culture
of that country prevents almost all criticism of judges in the society, while criticism of judges in Italy seems
quite commonplace, according to the author of that chapter. Touching on questions of history and culture, the Russian
chapter begins by stating, "Judges in Russia today are not immune from criticism." (p. 185). And the
chapter on Hungary concludes that the rules and norms for handling criticism of judges are unclear in that society.
Again, for readers who seek a quick introduction to how a variety of European nations approach the question of
criticism of judges, this collection is essays raises some interesting issues. Its strength is in its breadth of
the number of countries discussed. Its main weakness, however, is in its lack of depth about any particular country.
And the collection of essays would have been stronger if all of the chapters had addressed the same issues. The
book also would have been stronger if there had been more of a theoretical framework binding the various chapters
together. However, the
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differences in perspective from each chapter author give the reader a taste of the uniqueness of the legal traditions
and rules in each society.
Copyright 2001 by the author, Mark C. Miller.