Skating On Thin Ice

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Title: Skating on thin ice. How to balance rights based public accountability, regulatory oversight as an obligatory governance function and the value of independence and peer evaluation in appointing judges and professors?
Year: 2016
Authors: Ajeet Mathur
Abstract:

The appointment of judges and professors is of profound significance in any society. The free and fair functioning of a credible, competent and trustworthy judiciary is one of the classical pillars in any democratic society that values liberty, community and rule of law because it provides a balance between a Hobbsean departure from anarchy and a Lockean conception of rights and freedoms. The existence of an independent academia with capable professors who can research phenomena (natural, social, economic, political etc.) and fearlessly reveal and pass on their discoveries is one of the pre-requisites of any society that evolves by knowing and inquiring. Despite the aura and mystique surrounding both these vocations, it is surprising how little discussion there has been on how judges and professors are appointed or should be appointed to their positions. There are unexamined ethical dilemmas in our Global era in appointments concerning both these vocations that involve unconscious processes in the judiciary and in academia as institutions that deserve exploration through the psychoanalytic prisms available for the study of courts of law and universities as organisations. Why societies collectively collude to turn a blind eye to these unconscious processes is itself a fascinating tale that would merit analogies with animal behavior, notably the proverbial ostrich known for its proclivity to bury its head in sands, the snake as the reptile to which we disown our envy, the owl variously regarded as wise and foolish, and the savior in the form of the St. Bernard’s Dog whom we fantasise that could be bringing around our next shot of brandy or sherry.

There is something remarkable in common about what is expected of judges and professors although they belong to organizations designed for distinct tasks and pursue vocations with quite different mandates. Judges deciding cases in courts are supposed to follow the principle “audi alterem partem” (hear the other side). In academia, the process of knowledge creation requires that falsifiability criteria be invoked so that all possible answers of a question are considered and all voices heard before claiming a finding or proposing a working hypothesis as the

1 Paper for the 33rd ISPSO Annual Meeting, Granada, Spain,

best available approximation of the truth or reality concerning any phenomena. Both professions are in the nature of vocations that are generally paid salaries from taxes paid by the people for a public good that is collectively valued although with the advent of private universities, professors’ salaries are also financed from fees or private donations in much the same way that arbitrators are paid fees by both parties in cases of business disputes being settled through commercial arbitration.

The norms of natural justice require that bias in appointments of judges be removed by reference to what the common people regard as their inherent right to have a voice in how judges are appointed. This is also the logic for juries comprising the general public which has its own limitations because crimes against any State and crimes against humanity also require handling. The obligations of governance require that the role of state set standards for public appointments and implement them with due regard to constitutional safeguards arising from principles in representative democracy. But this gives unreasonable powers to governmental authority that can result in appointments of judges subservient or obligated to governments that appoint them compromising independence in matters that involve deciding against the government. Peer-led appointment processes can also perpetuate mediocrity and collegiate collusion with loss of public accountability contributing to democratic deficit. The same sort of ethical dilemmas are present in academic appointments.

This paper relies on the extant literature and cites evidene in support of a series of working hypotheses drawing attention to unconscious processes that are “unthought knowns” so that the choice between supporting tribal affiliations or accepting an elected government’s authority or reinforcing public choice-each solution fraught with its own problems-are all castigated to pose the challenge of solving one of the most important unsolved mysteries of our times.

Keywords:
Language: English


Date: 06/25/2016
Location: Granada, Spain
Name of Event/Conference: 33rd ISPSO Annual Meeting
Sponsoring Organization: ISPSO

Submitted by:
Ajeet Mathur

Corresponding author: Ajeet Mathur

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