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This chapter examines whether judges have a legal duty to apply the law correctly—to obey certain adherence rules. Various sources of legal authority on the question are examined, including codes of judicial conduct and case law. It is determined that sanctions are almost never imposed on judges for deviating from the law, unless there is a pattern of error or evidence of improper motive. Judges have not been impeached or removed from office for deviating from the law in the United States. Nevertheless, the chapter concludes that judges may well have a legal duty to adhere to the law, and the rest of the book is consistent with that assumption. Other judicial incentives to adhere are also discussed.

Judges are not above the law. Like the other institutions of the State, the judiciary must be accountable. Chief Justice Edward Coke told King James I point blank that was not above the law and quoted jurist Bracton, Non-sub homine sed sub deo et lege. (The King is under no man, save under God and the law.) Ironically, judges themselves don’t appear to be following this dictum giving an impression that they are above the law. The judiciary should be accountable according to its own reasonings employed for holding all other institutions to account. But it abhors the idea of accountability for itself in the name of its independence. It is a misnomer as independence and accountability are complementary, not antagonistic.

This chapter summarizes the previous chapters and explains how selective optimization casts doubt on the legalistic rhetoric that is common to lawyers, judges, and critics of the bench. The case is made for distinguishing, in many contexts, between the claim that a judge has deviated from the law and the claim that she has acted impermissibly, all things considered. This book makes the case that this distinction is often crucial, and that much criticism of lawless judging is, accordingly, erroneous or misleading. The fact that a judge has deviated is not, in itself, a reason for censure, impeachment, removal, or any form of retaliation against her. It is not even a reason to vote against a judge when she runs for reelection, or a reason for a senator to vote against confirming a presidential nominee to the bench. Only a pattern of excessive deviation provides such reasons. Traditional theories of adjudication constrain judges to an extent that cannot be easily justified.

This chapter examines judicial delinquency in India. Chief Justice Sabyasachi Mukharji observed that there is human devaluation and crisis of character in this judicial crisis. The devaluation was accelerated by systematic moves by the Indira Gandhi government since 1973 and the Rajiv Gandhi government thereafter to suborn judges and undermine the independence of the judiciary. The chapter examines and discusses the problem of dealing with judges who are reasonably suspected of misconduct. While the Bar Associations and press have played a wild role in highlighting possible misconduct, the problem remaining. Is there no remedy short of impeachment? The chapter suggests two alternatives. One is to empower the proposed National Judicial Commission to undertake in camera probe to ascertain whether a prima facie case exists. The judge can then be given the option of resigning or facing impeachment proceedings. The other is to amend the Judges (Enquiry) Act 1968 and provide for a standing commission to look into complaints.

This chapter examines judicial crises in Hong Kong, Malaysia, and Singapore, where monumental standoffs between the legislature/executive and judiciary shaped the current constitutional relationship between them. Section I examines the events following from the decision in Hong Kong of Ng Ka Ling v Director of Immigration, where the Court of Final Appeal asserted the judiciary’s power to declare any legislative acts of the National People’s Congress to be inconsistent with the Basic Law. Section II explores the Malaysian judicial crisis of 1988, during which three judges on the Supreme Court were impeached for judicial misconduct and removed from office. Section III analyses developments following the Singaporean decision of Chng Suan Tze v Minister of Home Affairs in which the Court of Appeal concluded that any Ministerial discretion to detain personnel under the Internal Security Act would be subject to an ‘objective’ test of review by the courts.