American judges and attorneys tend to think of “recusal” and “judicial disqualification” as being a distinctly American phenomenon. However, the notion that judges should stand fair and detached between the parties who appear before them is as old as the history of courts, and edicts designed to ensure judicial impartiality have been recorded since ancient times. See Babylonian Talmud, Tractate Shabbath 10a (“[e]very judge who judges a case with complete fairness even for a single hour is credited by the Torah as though he had become a partner to the Holy One…in the work of creation”), quoted in 1 E. Quint & N. Hecht, Jewish Jurisprudence 6 (1980).
Under early Jewish law, for example, a judge was not to participate in any case in which a litigant was his friend, a kinsman, or someone whom he personally disliked. The Code of Maimonides, Bk. XIV, ch. 23, 68-70 (trans. A. Hershman 1949). Similarly, pursuant to the Roman Code of Justinian, a party who believed that a judge was “under suspicion” was permitted to “recuse” that judge – so long as he did so prior to the time issue was joined. Corpus Juris Civilis, Codex, lib. 3, tit. 1, no. 16 (“Although a judge has been appointed by imperial power, yet because it is our pleasure that all litigations should proceed without suspicion, let it be permitted to him, who thinks the judge under suspicion, to recuse him before issue is joined” ), trans. in Putnam, Recusation, 9 Cornell L.Q. 1, 3 n.10 (1923). This expansive power on the part of early litigants to effect a judge’s “recusal” formed the basis for the broad disqualification statutes that generally prevail in civil law countries to this day. See Note, Disqualification for Interest of Lower Federal Court Judges: 28 U.S.C. §455, 71 Mich. L. Rev. 538, 539 (1973).
Today, the filing of a motion seeking the disqualification (or, as the process is more commonly referred to in non-English speaking countries) the “recusal” or “recusation” of a judge or magistrate is a common occurrence throughout much of the world.
1. For a comprehensive analysis of American law on the subject of recusal and disqualification which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007) To locate libraries in countries other than the United States which have the most recent edition of Judicial Disqualification in their collection click here.
2. For a helpful law review article on the “appearance” basis for disqualification in international law see Debra Lyn Bassett * & Rex R. Perschbacher, “PERCEPTIONS OF JUSTICE: AN INTERNATIONAL PERSPECTIVE ON JUDGES AND APPEARANCES,” 36 Fordham Int’l L.J. 136 (Jan. 2013).