Judiciaries Worldwide: A Resource on Comparative Judicial Practice

PICTURED ABOVE: Photo illustration showing the front page of Judiciaries Worldwide. (All photos courtesy of the Federal Judicial Center)

The Federal Judicial Center, the education and research agency for the United States federal courts, has created Judiciaries Worldwide (judiciariesworldwide.fjc.gov), an online resource that explores the many ways judicial systems can be structured. National judiciaries have varied histories, legal cultures, and procedures. Judiciaries Worldwide was developed to facilitate dialogue among judges, practitioners, and students from across legal systems. In the essay below, Mira Gur-Arie, Director of the Center’s International Office, describes the site’s objectives, structure, and content. Editor’s Note: If your organization has an online resource that you think would be helpful to the international legal community, write to us at judicature@law.duke.edu.

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Increasing numbers of judges, prosecutors, and members of the bar engage with their counterparts from different countries, whether at international conferences, workshops, or business meetings. These exchanges provide an invaluable opportunity to share expertise and learn. I have worked in the field of international judicial relations for over twenty years and have come to appreciate the importance of such transnational dialogue as well as the challenges. Language, of course, can limit the scope of a conversation. But even with the assistance of an interpreter, discussions can go awry due to a lack of understanding and familiarity with the nuances and practices of different legal systems.

There is no single way to structure a court system, appoint judges, evaluate evidence, enforce judgments, impose a criminal sentence, or fund legal services for the poor. Each nation has its own history and social context that shape its justice sector institutions. These differences can be significant. For example, a judge from the United States observes court proceedings in another country. Noticing the absence of a court reporter, she comments: “The judge is taking notes by hand! They must need funding for a court reporter’s office.” To a U.S.-trained lawyer, a verbatim transcript of court proceedings is considered essential for the integrity of the appeals process. But most court systems around the world do not use court reporters. Witness statements may be submitted in writing rather than taken as testimony in court. Or judges may dictate a condensed summary of their notes to a court secretary and invite counsel and witnesses to review the final document for accuracy and request changes. Or, in many countries, the first appeal is de novo, with evidence presented a second time to another court. In all of these contexts, a literal recording of proceedings is superfluous.

There are other examples of similar misapprehensions. Judges from two countries sit together at a conference and discuss their work. Judge A from Country B explains he is the judge of his court. Judge C from Country D is surprised and asks, “There is only one judge for your whole court?” The meaning of “court” seems straightforward: shorthand for “courthouse,” a place — usually but not always a building — where adjudication happens. However, the term “court” means different things in different countries. It may describe a collection of judges who work in different cities across a state. It may refer to a single judge, even if there are other judges (and courts) in the same building. Similar confusion is often sparked by the terms “trial” and “hearing.” This confusion is not simply vocabulary-related; it reflects differences in the way cases are adjudicated country to country.

Background

Judiciaries Worldwide is a web-based resource that addresses this knowledge deficit and seeks to enrich the “global justice sector” literacy of judges, lawyers, and students. The site explores comparative judicial practice, offering information and insights about the work of courts and judges around the world, differences in civil and criminal procedure, and the role of international institutions. It was developed by the Federal Judicial Center, the research and education agency for the United States federal judiciary. The Center engages in empirical research about judicial administration, delivers educational programs for judges and administrative personnel, and develops resources on the history of the U.S. courts. The Center also works with the judiciaries of other countries on capacity-building initiatives in the fields of judicial administration, substantive law, and education.

Although the Center’s International Office is modest in size, its reach extends across the globe to include collaboration with judges in Africa, Asia, the Gulf and Middle East, as well as Latin America and Europe. This work inspired the development of Judiciaries Worldwide. Preparing for international exchanges requires learning about different legal systems, court hierarchies, and procedural rules. Acquiring familiarity with national history and context is vital for successful collaboration. This process can take many days of searching online and culling information. There is no easily accessible, practical resource that gathers helpful information about the world’s courts and legal systems in one place.

Judiciaries Worldwide was created to fill this gap. National judiciaries have varied histories and legal cultures. Judiciaries Worldwide explores their practices, systems, and institutions. The site presents information through summaries and graphics and includes references for more in-depth study. Judiciaries Worldwide is not a repository for scholarly articles or critical analysis. It provides neutral, accessible, and practical overviews; “just enough” to inform and inspire curiosity.

Website Structure

Judiciaries Worldwide is divided into different topic areas: legal traditions, courts, civil, criminal, and international. It includes profiles of national judicial systems as well as a “Quick Questions” section that explains terms of art that may be unfamiliar to site visitors from different countries.

Legal Traditions

Nations follow different legal traditions, often as a legacy of colonialism. Most countries have adopted some version of either the civil law or common law tradition, though quite a few have implemented elements of both and also incorporate customary and religious law. These legal traditions have independent historical antecedents, distinctive models of legal reasoning, and contrasting views about the role of a judge. Although it can be said that judicial systems around the world are more alike than not, appreciating the procedures and practices of different legal traditions not only facilitates communication but also makes the sharing of “good practices” more focused and impactful.

The earliest justice systems employed a version of customary law, codes of conduct based on the traditions, customs, and norms of a local community. Customary law is still widely employed across the globe. In some countries it is incorporated into the national justice system; in others, customary law is applied through informal justice systems rooted in community structures and outside of the government’s purview; and in other countries, customary law regimes are recognized by the government as legitimate independent means of dispute resolution. For example, Zambia’s Lands Act of 1995 empowers local chiefs to grant the right for occupation and use of land by their subjects. In Jordan, state courts and police forces recognize the customs and traditions of Bedouin tribes for criminal and family matters.

The civil law/common law divide is more familiar to most legal practitioners. Civil law predates common law by nearly 1500 years. Its codes are meant to be comprehensive and authoritative. The roots of common law can be traced to the Middle Ages in England, when the King looked to adjudicators, rather than written codes, to make law. Modern legal systems do not hew precisely to their ideological origins but there are general trends within the civil law world and across common law nations.

The Legal Traditions page on Judiciaries Worldwide sweeps broadly to incorporate pieces about customary law, transitional justice, and restorative justice. It also features a practical comparison of civil law and common law systems and explores the Islamic Law tradition, with an overview of the different schools of jurisprudence and a description of the different ways Muslim-majority countries incorporate elements of Islamic law into secular structures. The Legal Traditions page provides a helpful conceptual framework for the site’s other content.

Courts

Across the world, courts are understood as a primary venue for adjudicating disputes. However, there are many versions of what courts do, how they look, are structured, staffed and even named. In some countries courts are referred to as tribunals or even palaces. The appellation assigned to the final court of appeal may be “Supreme Court” or “High Court” or “Court of Appeal” or “Supreme Peoples” Court” or “Cassation Court.” Adding to the confusion, the term “cassation” may be used by some countries to describe the process of reviewing the legality of a final judgment and not the final court of appeal.

National judiciaries also have very different systems of court governance. For example, there may be a judicial council that plays a significant role in judicial administration. In Peru and Slovenia, these councils have authority over all judges. In Bulgaria and Turkey, the authority of the judicial council extends to public prosecutors. There is also a mixed model with an independent judicial council that has authority over lower-level judges but not supreme court justices, such as in Argentina and Latvia. The judicial council’s scope of responsibility may include some combination of judicial selection, education, reviewing conduct and discipline, and policy making. Or as is the case in China, the Supreme Court has broad authority over judicial administration, including oversight, policy making, and education.

The Courts page on Judiciaries Worldwide explores the many features of court systems, from the budget process and court administration, to the number of justices assigned to supreme courts and how court performance is measured. A piece on specialized courts describes the varied jurisdiction and responsibilities assigned to subject-specific tribunals. There may be specialized courts for civil justice matters (small claims, environmental matters, intellectual property, family law, and bankruptcy) or criminal justice (narcotics, domestic violence, anti-corruption). In countries with a system of administrative courts, there may be courts specializing in immigration, social security, or labor.

Judges

Perhaps the most often discussed and debated features of a judicial system is the process used for selecting judges. Some countries prioritize high performance on a competitive examination. Others seek candidates who have had distinguished careers as practitioners. Judiciaries Worldwide describes the three main methods by which judges are selected: political appointment, competitive exam, and election. Different methods may be used at different court levels. The appointment process for constitutional court justices can be quite elaborate, with an emphasis on appointing justices with diverse professional backgrounds or a requirement that the opportunity to nominate members be divided among different constituencies. In Italy, the fifteen-person constitutional court includes five jurists appointed by the judiciary, five by the parliament, and five by the president.

Another “frequently asked question” about judges focuses on the rules and mechanisms used to assess judicial ethics. Most judicial systems have codes of conduct or equivalent rules to guide the behavior and responsibilities of judicial officers. There are different models for enforcing these norms. In some countries, including the United States federal judiciary, the ethics process is primarily self-regulating. In Chile, the Supreme Court has disciplinary power over all the country’s judges. Other judicial systems provide for external oversight that may be carried out by a judicial services commission or council or may include the participation of members of the legislature (Sweden) or civil society (the U.S. state of Alabama).

While almost every judicial system in the world limits the tenure of judges, there are significant differences as to how this is done. Judges may be appointed for a term of years, have a mandatory retirement age, or accorded “life tenure” with a mandatory retirement age. In countries that impose a mandatory retirement age, it may differ depending upon the court. In India, there is a mandatory retirement age of 65 years for supreme court justices, 62 years for high court justices, and 60 for district and sessions judges. In Japan, supreme court justices are subject to retention elections every ten years until they reach the mandatory retirement age of seventy; lower court judges serve renewable ten-year terms with a mandatory retirement age of sixty-five; summary court judges serve renewable ten-year terms, with a mandatory retirement age of seventy. In Georgia, after a three-year period of probation, judges receive life tenure, with a mandatory retirement age of 65. Ethiopia has a mandatory retirement age of 60; in Austria and Cambodia it is 65; judges in Australia and Ghana must retire at 70; Brazilian and Canadian judges at 75; and U.S. federal (Article III) judges can serve until they choose to leave, are removed, or die.

One of the most popular pages on Judiciaries Worldwide raises an interesting question that is often taken for granted: why do judges wear robes? The tradition of judicial robes, often accessorized with wigs or collars, traces to the 12th century, when judges were part of the royal courts of England, Spain, and France. Monarchs and judges followed dress codes dictating material and color, even specifying styles for each season. Not every country has adopted Western-style robes. Judges in the Islamic Republic of Iran and Saudi Arabia clothe themselves in a bisht, or cloak. During the second half of the 20th century, judges in China wore military-style outfits complete with epaulets and caps. In the early 2000s, the style shifted to a more contemporary blend of Eastern and Western elements.

Civil

Rules of civil procedure inform the way litigation develops and proceeds through the court system. They also dictate the role of judges, lawyers, and court personnel, the production and probative value of evidence, and the duration of court proceedings. When judges from different countries compare notes on the nature of their work — for example, their caseloads, the challenges they face with evidentiary issues, the process for selecting expert witnesses — it is helpful to account for the many variances in procedural rules. Judiciaries Worldwide highlights different aspects of comparative civil procedure.

As mentioned earlier, the nature of a “trial proceeding” can differ from country to country. In many civil law jurisdictions, even those that have adopted some adversarial practices, there is no distinct pretrial phase and the trial is a series of discontinuous hearings spread over the course of many months. Judges in civil law countries have a more active role in gathering evidence, narrowing the legal issues, and selecting court experts. These tasks are typically the province of the attorneys in common law countries and there is often a distinct and lengthy pretrial phase of litigation. On the other hand, judges in many common law jurisdictions play an active role in case management, presiding over regular conferences with counsel, setting a schedule for completion of litigation, holding the parties to that schedule, and facilitating the settlement of civil disputes.

There are other distinctions in judicial practice that do not break down according to civil and common law traditions. Some countries permit appellate panels to issue oral judgments in less complex cases; others require a detailed written judgment for all decisions. When a judgment on appeal is not unanimous, rules of practice in some countries permit the publication of the dissent and may allow each judge on a panel to publish a separate opinion. This is prohibited in most countries; judgments are delivered for the entirety of the court (per curiam), with no concurrence or dissent and no information as to how individual judges voted.

There are many other distinctions in global civil procedure rules and practices including how judgments are enforced, attorneys’ fees awarded, class actions litigated, and evidence admitted. Judiciaries Worldwide provides a window into the many approaches used to dispense civil justice.

Criminal

Criminal procedure plays a fundamental role in all justice systems, ensuring the right to a fair trial and protecting the rights of victims and the interests of society. Countries have developed different strategies for meeting these values. Some civil law jurisdictions have an investigating judge — sometimes called an examining magistrate — who leads the investigation of serious or complex cases. This institution was developed to ensure impartiality. If the investigating judge determines that there is enough evidence to proceed to trial, some countries transfer the case to a first instance (trial) judge (Greece and France) while in other countries the investigating judge also adjudicates the case (Croatia and the Netherlands). Some countries have reduced the powers of the investigating judge, as was done in Germany, Spain, Turkey, and most South American countries, which have abolished the position entirely; Uzbekistan recently introduced the position of investigating judge.

One of the more frequently visited pages on the Criminal page of Judiciaries Worldwide addresses trial waiver systems. Courts around the world face daunting criminal case loads. Trial waiver systems like plea bargaining and summary dispositions help dispose of cases more quickly. There are different ways to limit the number and length of criminal proceedings and what works for one country may be inappropriate for others. The civil law tradition posits the search for truth as an imperative inconsistent with procedures that short circuit the fact-finding process. In some countries, reluctance to introduce plea bargaining reflects a persistent suspicion of government overreach and close relationships between prosecutors and judges.

Germany assigns primary responsibility to the judge in its trial waiver (absprachen) process. The accused may offer to admit to the charges at any time, pretrial or during trial, in exchange for the judge’s assurance that the sentence will not exceed a determined limit or that some charges will be dismissed. The accused, prosecutor, or judge may initiate absprachen, but negotiations may also proceed between the accused and the judge without the involvement of the prosecution. In Japan, prosecutors have the authority to file less serious charges against defendants who agree to cooperate and provide statements or evidence helpful to the criminal investigation of other individuals or entities. This is permitted only for certain crimes, including antitrust, drug and weapons offenses, and organized, corporate, and white-collar crime. Responding to concerns from the victims’ rights community, policymakers chose not to allow plea bargaining for most violent and property crimes. Defense counsel must be involved in the negotiations and can reject the terms of a plea offer to protect their client’s interests.

Another area of practice that varies widely across jurisdictions involves lay participation in criminal trials. While many countries do not have anything resembling a jury trial, a significant number have some form of lay participation for serious criminal cases. In Denmark, less serious criminal cases are heard by a judge and two lay (citizen) judges; more serious cases are heard by three judges and six lay judges. Each has an equally weighted vote and the lay judges are also involved in the sentencing process. Korea uses juries for criminal cases punishable by at least one year of imprisonment and death penalty cases. In cases involving offenses subject to life imprisonment or capital punishment, a jury of nine jurors is impaneled; all other cases are heard by a jury of seven. The jury’s verdict is advisory. Other countries that involve citizens as lay judges or assessors in criminal cases include Argentina, Fiji, Ghana, Iceland, and Macedonia.

International

The world of international organizations and tribunals, though foreign to many judges, plays an important role in establishing, promoting, and, in some cases, enforcing rule of law norms. Their work and jurisdiction are varied. The International page on Judiciaries Worldwide offers a brief overview of some of the more prominent institutions and tribunals.

The United Nations was established to promote peace and cooperation; its General Assembly created the International Law Commission to promote the development, systematization, and codification of international law. The World Trade Organization promotes and upholds rules for international trade and serves as a venue for negotiating trade agreements and settling trade disputes. Regional bodies such as the African Union, European Union, and Organization of American States were created to foster cooperation and common policies on trade and security.

International tribunals provide a venue for adjudicating certain types of international disputes, facilitating the settlement of problems requiring specialized expertise, and resolving disputes pursuant to an international convention, such as the Law of the Sea Tribunal. The UN International Court of Justice settles disputes submitted by member states in accordance with international law (e.g., treaties, customary international law, and established principles of legal interpretation). The International Criminal Court investigates and prosecutes cases only when a nation is unwilling or unable and exercises jurisdiction over the most serious international crimes: genocide, war crimes, crimes against humanity, and the crime of aggression. It can investigate individuals from non-member states if the alleged offenses took place within the jurisdiction of a member state.

Country Profiles

The Country Profiles section of Judiciaries Worldwide offers a more in depth look into the justice systems of individual countries. Each profile offers a bit of historical background to provide context and explains the nation’s court structure, judicial selection process, and other features of its justice system. The profile of Brazil describes its well-established small claims courts. There are such venues throughout the country with jurisdiction over a broad range of issues including conflicts between neighbors, minor property damage, consumer rights violations, problems with service providers, claims relating to pension plans, small traffic incidents, debt collection, and landlord tenant disputes. The Philippines profile highlights the extensive use of customary law throughout the country. In areas with many indigenous groups, clans have created a system called bodong that offers alternative dispute resolution to mitigate conflicts.

The India profile includes information about the suo moto petition, a mechanism that enables NGOs, social action groups, and individuals acting on behalf of others to sue to defend fundamental constitutional rights. The profile on Mexico describes the writ of amparo, a procedure used to protect individuals from laws or acts by government officials that violate rights established by the constitution and applicable human rights conventions. This includes actions against unconstitutional laws, judicial decisions, or administrative actions and resolutions. The Rwanda profile highlights the Gacaca courts that were established to provide grassroots-level justice for many of the cases involving crimes against humanity committed during the genocide in the 1990s.

There is much to be learned from the practices and institutions featured in country profiles. Canada has created a restorative justice mechanism called “sentencing circles,” modeled on an Aboriginal tradition, to facilitate a less retributive and more restorative mode of sentencing for certain types of criminal cases. Papua New Guinea’s Village Court Act created a system of village courts to implement customary village law and procedures; they serve two-thirds of the Papua New Guinea population and hear minor civil and criminal cases. Uzbekistan’s ombudsman reviews complaints submitted by citizens, foreign nationals, and stateless persons residing in the country who allege a violation of their rights by government officials. It can investigate these complaints and must be granted access to evidence and documents. Spain passed one of the broadest universal jurisdiction laws in the world, extending its courts’ jurisdiction over alleged human rights violators throughout the world, regardless of whether the crimes took place in Spain or were perpetrated by a Spaniard. However, recent amendments to the law made it more difficult to investigate and prosecute cases outside of Spain and considerably limited its jurisdictional scope.

Content to Judiciaries Worldwide is added on an ongoing basis. Though much is created in-house, many pieces are written by judges and others with an interest in comparative judicial practice. Judicial Center seeks to build a community of contributors with diverse expertise and a shared commitment to quality and collaboration. If you are interested in contributing to Judiciaries Worldwide or have any questions, feel free to email the Federal Judicial Center.

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Mira Gur-Arie directs the Federal Judicial Center’s International Office in Washington, D.C.