Faculty of Law, University of Oslo, Oslo, Norway
Obligations and Orders
In his famous article from 1946 on statutory lawlessness, German politician and legal scholar Gustav Radbruch compares the slogans “orders are orders” and “law is law” and concludes that the Nazi regime employed both of them to ensure the loyalty of its subjects. But whereas the obedience of the soldier has never been regarded as absolute, because orders may be illegal, positivism ensures that the law’s requirements are limitless. This was the attitude of the prevailing legal thought that, according to Radbruch, rendered the legal profession defenceless in the face of its Nazi masters.
Perhaps one could claim that the excuse of following the law is just the lawyers’ variety of the more general excuse of following orders—an excuse that was rejected in the trial in Nuremberg against the major war criminals. According to Article 8 of the Nuremberg Charter, “the fact that the defendant acted pursuant to order of his government shall not free him from responsibility”. The Military Tribunal in the trial against the major war criminals interpreted this in the following passage:
The provisions of this Article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defense to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal laws of most nations, is not the existence of the order, but whether moral choice was in fact possible.1
What is implicated in the term “whether moral choice was in fact possible” is open to interpretation. One alternative is that an order in itself is never an excuse, but the fact that the defendant acted according to an order can be one of the facts considered when determining whether he acted with the necessary criminal intent. With regard to the more serious crimes, misunderstanding of the law should not exclude criminal intent regardless of whether the misunderstanding is due to an order or other circumstances.
Are there reasons to accept that a judge, because of his special function and responsibility, should be allowed to invoke the defence of ‘just following the law’ in situations where others are condemned, despite the fact that they are acting on superior orders? Or should the defence of the judge be construed so as to coincide with the defence of superior orders? Legal scholar and political scientist Otto Kirchheimer points to a basic difference between a soldier and a judge with regard to superior orders. While both the soldier and the judge owe loyalty, the objects of their loyalty are different. The soldier owes loyalty to the command structure, whereas the judge owes loyalty to the mandate of the law.2 The law is not a chain of command, and the judge, unlike the soldier, is expected to exercise his own discretion in determining the contents of the law. This difference means that, in some respects, less is at stake for the judge than for the soldier—blind obedience is not expected of the judge, and he may object to the interpretation offered by others. On the other hand, the loyalty expected from him is in a sense greater since he has a measure of freedom and choice. These questions take us into the heart of the issue of judicial immunity: should a judge who follows the law be immune to later charges of responsibility for the consequences of his ruling?
Under the Allies’ war crime trials against German judicial officials, judicial immunity was recognised as a defence where judges in occupying territories were charged with sentencing persons charged with, for example, espionage or assaults. The pleas of judges in such cases were that such people were tried and convicted according to the rights of occupying powers under international law. This plea was allowed to prevail if it were shown that the victim was accorded a fair trial.3 In many cases by national courts against war criminals, judges were convicted, however, for denying the accused the right to a fair trial. The United Nations War Crimes Commission gives the following examples:
that captured airmen were tried “on false and fraudulent charges” and “upon false and fraudulent evidence”,
that the accused airmen were not afforded the right to a defence counsel,
that the accused airmen were not given the right to have an interpretation in their own language of the trial proceedings,
that the accused fliers were not allowed an opportunity to defend themselves.
The Commission also stated that “it is a violation of the law of war, on which there could be a conviction if supported by evidence, to inflict capital punishment on prisoners of war without affording to them opportunity to make a defence”.4
If a judge is awarded immunity, it cannot be because of the fact that he is not regarded as a responsible agent as such. One could argue, of course, that when the judge applies the law, it is the law that should be blamed and not the judge. But in this respect, there is no difference between the judge and the person following an order. Criminal or moral responsibility does not presuppose that the agent executing an act also is the author of the act. It suffices for blame that the actor had a possibility to refuse.
Hannah Arendt makes a case that there is no such thing as obedience in political and moral matters. Although every organisation demands obedience to superiors and to the laws of the land, those who obey actually support, and without such support, “no man, however strong, can ever accomplish anything, good or bad”.5 Obedience is, in other words, participation and support.
Immunity and the Role of the Judge
If the judge should be excused for following the law, it can therefore not be for the fact that the judge is fulfilling a duty. The reason must lie in the nature of the judge’s role that immunity from consequences of performing a judicial role is important or necessary to society in order for the judges to fulfil the tasks required of them. In his article, Radbruch states:
The culpability of judges for homicide presupposes the simultaneous determination that they have perverted the law, since the independent judge’s decision can be an object of punishment only if he has violated the very principle that his independence was intended to serve, the principle of submission to the statute, that is, to the law.6
Radbruch here invokes the independence of the judge as a basis for immunity: a judge who serves the law cannot be punished.
The traditional argument for judicial immunity is that the judge should be free to apply the law without fearing the consequences in order to be able to apply the law in an independent and impartial way. If the judge is under the pressure from other factors than the relevant facts and law in the case, his decision may be influenced by factors outside the scope of the law, and justice will not be done.
This is a different argument than the argument that the judge is just following the law. If the law is perceived as determined and formal, the situation of the judge becomes more like the situation of a soldier following an order. But to the extent the judge has a scope of discretion and must make a professional choice, immunity becomes more important to protect the integrity of this choice. This choice should not be made under the influence of parties or others trying to influence the judge in an extralegal manner, nor should it be made under the influence of fear of consequences the judge may encounter after the decision by action of disappointed parties or public officials. The point is presented in a clear way by former Chief Justice of South Africa M.M. Corbett in his presentation to the Truth and Reconciliation Commission:
In order to be true to his judicial oath and to administer justice to all persons alike “without fear, favour or prejudice” a judge must enjoy independence from the legislature, from the executive, from any other body or authority which could be tempted to influence his decisions. Only under those circumstances can justice be done in the courts.7
This is an important point. Most would agree that it is illegitimate to approach a judge before the ruling in order to try to influence or intimidate him. Likewise, there is a general consensus as to the inappropriateness of the judge letting himself be led by considerations outside of the scope of the facts and the law of the case. In principle, there should be no difference whether the external factors are matters that are known to him in advance or whether they concern possible consequences or repercussions that he may be confronted with in the future. We do not want judges who allow their rulings to be influenced by a real or perceived need to cover their backs.
Immunity for judges is a compelling legal principle in some jurisdictions. Common law countries are notable examples.8 It is also an internationally recognised principle. The UN Basic Principles on the Independence of the Judiciary state in section 4 that “there shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision”.9 Immunity for the judge is seen as important to ensure that the judge can determine cases as he sees the law without fear of criticism or repercussions. There is no immunity from liability for criminal activity, and judicial immunity does not apply to disciplinary actions against judges for violations of professional and ethical standards that pertain to their conduct.
Since the judge is not immune from being charged with crimes, this should settle the matter: judicial immunity is not a defence for the judge charged with violating basic rights when applying oppressive laws. On the other hand, the lenience that is shown to such judges, even after contributing to the most unthinkable atrocities, indicates that there is a reluctance to make judges responsible for their contributions. Some of this reluctance may be based on the concept that the judge should be immune from sanctions when he is being obedient to the law and is applying it in a professionally recognised manner.
In common law, judicial immunity is a deeply entrenched doctrine. It has been used to guard judges from common law causes of action, including false imprisonment, malicious prosecution, and libel, as well as from statutory causes of action for the deprivation of civil liberties and constitutional rights.10 Although judicial immunity is not recognised as a formal defence in criminal or disciplinary cases, the application of sanctions on judges for their decisions, even if they clearly disregarded the law, is so seldom that it, in practice, amounts to a judicial immunity. In the US, there is a long-standing reluctance to sanction judges for decisions made on the merits of the case. The sanctions that are applied, if at all, are mild and presuppose patterns of errors or obvious or egregious errors made in bad faith.11 The state of the law is such that it can be questioned if the judge even has a duty to apply the law.
A doctrine of judicial immunity has been used to escape facing criticism for contributing to a breakdown of the rule of law. In South Africa, judicial officers (both judges and magistrates) declined to attend the hearing of the Truth Commission on the institutional hearing on the legal community; their responses took the form of a few written submissions.12 Chief Justice M.M. Corbett explained their refusal in the following manner:
This does not mean that a judge is not accountable or above the law. He is accountable to a superior court of appeal; he performs his duties openly and in public and is thus subject to daily scrutiny and criticism; and in the last resort there is impeachment. Outside these parameters, however, a judge may not be called upon to account for his or her judgments or to debate and justify before, for instance, governmental bodies or commissions. To require such accounting before the TRC would, in my view, be contrary to and subversive of the principle of judicial independence.13
The fact that the purpose of the hearing was not to establish guilt or hold individuals responsible and thus was not of a judicial or quasi-judicial nature did not have any bearing on the judges’ willingness to appear.14
Judicial immunity, however, is by no means universally recognised. In Germany, for instance, judicial immunity is no defence against the crime of “bending the law” (Rechtsbeugung according to the Criminal Code, section 339).15 It is also interesting to note that the concept of judicial immunity is not made an explicit part of the UN Basic Principles on the Independence of the Judiciary or the Bangalore Principles of Judicial Conduct.
Should we allow judicial immunity as a defence for judges accused of undermining the rule of law by enforcing and expanding oppressive legislation and repressive regimes? The heart of the matter is that in cases where the law is evil, we want the judge to be influenced by factors outside of the law. Law is never completely rational, and questions of law and fact are never completely determined. This means that elements of judgment, and thus morality and ethics, enter into any legal decision-making. We want judges to act as moral agents in extreme situations and to protect the rule of law when it is under attack. Historical experience shows that the main problem we face is not rogue judges deviating from the law but obedient judges who, for various reasons, contribute to authoritarian regimes, evil laws, and erosion of the rule of law. Since judicial immunity can only be defended from the perspective of rule of law, it should not be constructed in such a way that it contributes to the erosion of the rule of law. “When judges make themselves complicit in state oppression they cannot cite their independence as an ‘insurmountable obstacle’ to their being made accountable”.16 Rather, judicial immunity should be constructed so that it can foster the defence of the rule of law. This would entail that judicial immunity is not available as a defence to a judge who is accused of violating fundamental aspects of the rule of law.
On the other hand, one could argue that if one does not recognise judicial immunity as an absolute principle, this would put judges in authoritarian regimes in an even more precarious position. It is a fact that many repressive states seem reluctant to interfere directly in the operations of the courts in such an overt way that would entail sanctioning a judge.17 Even in Nazi Germany, sanctions against opposing judges were mild, as long as the judges kept their opposition to the bench and did not engage in subversive activities. It would, therefore, be an argument against limiting the scope of judicial immunity if this could encourage authoritarian regimes to engage stronger measures to discipline judges than they seem to do.
Particularly in the case of Germany, however, there is reason to doubt whether the restraint of the regime towards the judiciary can be explained with reference to a principle or rule of judicial immunity. The regime certainly had no second thoughts in departing from basic principles and commands of the rule of law. Why should it be different with a rule protecting judges from being held personally responsible for undesirable rulings? The explanation lies probably elsewhere than in the existence of a nationally and internationally recognised rule of judicial immunity.
The Nazi Party opted for a strategy to achieve its position by ostensible legal means and took great pains not to be blamed for discarding the concept of the “Rechtsstaat”. This policy of striving for legitimacy by reference to legality, albeit grounded in new concepts such as “the need of the German people” and “the will of the Führer”, required that independence of the judiciary be formally upheld. The need for legitimacy was also probably what protected judges who sought to mitigate the harshness of the Nazi legislation, not a norm of judicial immunity. Any reference to such a norm would easily have been brushed away as unwarranted “normativism” and a liberal reminiscence of the old regime.
The relative restraint of the Nazis towards the courts is not exceptional. In many authoritarian regimes, formal independence of the courts is respected, but judges are protected only as long as they are useful. A norm of immunity will not protect them. The only effect of maintaining a norm that protects judges who apply evil law will therefore only be to protect evil judges when the times change. Such a rule is therefore more to the benefit of authoritarian regimes than to the rule of law.
Judicial Independence and Immunity
Judicial immunity is only granted to judges acting in a judicial capacity. As a consequence, a judge acting on the instruction of another, be it one of the parties or an organ of the state, should not be able to invoke judicial immunity as a defence of his actions. A judge acting under instructions from the government is no different from an administrative functionary.
The Military Tribunal in the Justice Case stated that Nazi judges were “not entitled to the benefit of the Anglo-American doctrine of judicial immunity because that doctrine is based on the concept of an independent judiciary administering impartial justice”.18 The pressure and coercion applied to the judges was, in other words, a reason for not granting them the benefit of judicial immunity.
On the other hand, the very same lack of freedom has been cited as an exonerating circumstance for judges of the Nazi period. Hubert Schorn details in his book how the judges were directed through the secret “Richterbriefe” of the Ministry of Justice and, more informally, by doctrinal writings of Nazi legal scholars and repeated criticism in the SS press. “It goes without saying that such repeated proclamations and assertions influenced the judiciary, and that the constant drum-fire against their competence made them unsecure and courage-less”, writes Schorn.19 The judges were put under the normal regulation of civil servants and were obliged to swear allegiance to Hitler. Both Hitler himself and the leading echelons of the judicial system served as bad “role-models” to the judiciary.
If we accept a certain scope for the defence of judicial immunity, which many jurisdictions do, we still have to decide on the conditions that must be fulfilled to apply the defence. A precondition for judicial immunity under the doctrine of judicial immunity under common law is that the judge is not in clear absence of jurisdiction and is performing judicial acts. This seems a reasonable starting point. There is no reason for exonerating a judge performing pure acts of administration to a greater extent than the official in a public office.