Not everything that is faced can be changed, but nothing can be changed until it is faced.
– James Baldwin
A judge’s authority is not a private asset.
A litigant commissions an opinion. A judge writes it for a fee. The finished product then enters public circulation, bearing the prestige and authority that judicial office inevitably confers.
Anything wrong with this picture? I think there is. Quite a bit, actually.
Reasonable lawyers and judges may disagree – it happens all the time. What interests me is not whether a particular opinion is right or wrong, but what happens when remunerated judicial opinions become part of a broader strategy of advocacy, narrative shaping, and institutional positioning.
What is ultimately purchased is not merely legal expertise. It also includes the prestige, authority, and reputational capital that come with judicial office. Put more directly, we are dealing with the monetization of judicial prestige: the conversion of judicial office into a marketable asset.
Call me old-fashioned, but judicial authority occupies – or at least should occupy – a distinct place in legal systems precisely because it is not supposed to be available for private use, no matter how worthy the cause, how distinguished the client, or how noble the objective. That is my starting point.
That may strike some as old-fashioned, even naïve. So be it. Institutions ultimately rest on shared understandings of what ought not be for sale.
No, I am not suggesting that judges be isolated from the legal world. That would be neither realistic nor desirable. Judges lecture, teach, write, and contribute to scholarship. For ad hoc judges, some outside engagement is practically unavoidable.
But not all engagement is of the same character. And therein lies the ethical rub.
There is a difference between work that contributes to the broader development of the law and work commissioned for a specific dispute. One is written for the profession and the public at large, while the other is targeted, transactional, and designed to persuade in a defined controversy. One enriches the legal conversation, while the other serves a client. Those are not the same thing, and we should not pretend otherwise.
Judicial authority is held in trust for the public, not used to serve private interests. It is a public trust conferred for the administration of justice and dependent on public confidence in the judiciary’s independence, impartiality, and integrity.
Put differently, a judicial office is not simply another professional credential to cash in on after hours. Judicial titles are different. They carry institutional prestige, accumulated over years of public service and sustained by public confidence.
The difficulty arises when that prestige itself becomes part of what is bought and sold.
And make no mistake: people do not seek out judges merely because they are learned. They seek them out because they are judges. The title itself carries weight. That is what distinguishes commissioned judicial opinions from ordinary legal consulting.
Judges differ from other legal professionals precisely because they lack constituencies of their own. Advocates represent clients. Academics advance ideas. Arbitrators resolve disputes between consenting parties. By contrast, judges exercise delegated public authority in the name of the legal order. Their legitimacy, therefore, depends not only on actual independence but also on maintaining a visible distance from interests that may later appear before them or seek to benefit from the prestige of judicial office.
This is hardly a novel concern invented for present controversies. The debate has been ongoing for years. Questions about international judges serving as arbitrators, judges accepting outside appointments, and judges engaging in remunerated legal work have been debated, criticized, defended, and revisited. The fact that disagreement remains does not mean the issue lacks importance. Quite the contrary. It goes to the heart of what judicial office is and what we expect of those who hold it.
Modern judicial ethics reflects this shift away from a narrow, rules-based approach and toward a more practical goal: preserving confidence in the institution itself.
The Bologna-Milan Global Code of Judicial Ethics (2015), though not formally binding on international judges, captures this idea well. Judicial office, it explains, is a “public trust,” sustained by confidence in judges’ moral authority and integrity.
The Bologna Code gives institutional expression to what many lawyers instinctively understand. It also reiterates a few common-sense propositions that lawyers have long heard: justice must not only be done but also be seen to be done; judges must avoid not only impropriety but also the appearance of impropriety; and judges should neither use nor permit others to use the prestige of judicial office to advance private interests.
That last principle deserves a moment’s reflection.
The moment judicial office functions as reputational capital in private transactions, the line separating institutional authority from personal branding becomes increasingly difficult to maintain. Once judicial prestige itself becomes part of what is bought and sold, we are no longer simply talking about legal expertise. We are talking about something else entirely.
None of this should come as a surprise. The concern predates any present controversy by decades.
Scholars, practitioners, and commentators have long questioned the propriety of international judges engaging in remunerated activities outside their judicial functions. The controversy over International Court of Justice (ICJ) judges serving as arbitrators in investor-State disputes has persisted for years. Commentary by Nathalie Bernasconi-Osterwalder and Martin Dietrich Brauch of the International Institute for Sustainable Development on judicial “moonlighting,” together with Marie Davoise’s analysis in EJIL: Talk!, are among many thought-provoking contributions that highlight concerns about the institutional consequences of such practices, including overlapping professional roles, role confusion, and the potential migration of judicial prestige beyond the judicial office.
Frankly, much of this strikes me as little more than common sense. It is not that judges necessarily act improperly when engaging in extra-judicial work. Rather, judicial authority has a unique symbolic and institutional value that can become strategically useful once it is detached from the courtroom and deployed elsewhere.
Judicial prestige does not remain confined to the bench. It travels. And as it travels, it acquires exchange value.
That reality inevitably raises awkward questions. Who seeks judicial opinions? Why are certain judges approached? Would the same opinion carry comparable weight if authored by a distinguished academic or a senior practitioner without a judicial pedigree? At what point does expertise become influence, and influence become a form of transferable institutional capital?
These are not accusations. They are structural questions at the heart of contemporary debates over judicial ethics. Judicial authority is not merely personal expertise in institutional garb. It is an institutional asset held in trust for the public.
Judicial authority lingers. Former judges retain institutional prestige long after leaving office. Ad hoc judges likewise derive authority not only from personal accomplishment but also from their ongoing ties to international judicial institutions. Precisely because that authority persists, its use outside judicial settings requires exceptional caution.
It is here that commissioned legal opinions occupy particularly uneasy terrain.
If concerns about legitimacy and appearances justify restricting arbitral appointments for sitting judges, it is difficult to justify why commissioned legal opinions prepared for the benefit of specific individuals or institutions should raise fewer concerns. If anything, they may raise greater concerns.
At least arbitrators exercise adjudicative functions within established procedural frameworks. Commissioned opinions are different. They are advocacy-adjacent exercises initiated, compensated, and ultimately controlled by interested parties.
There is also the issue of selective disclosure.
Academic writing ordinarily sees the light of day, whether readers agree with it or not. Commissioned opinions operate differently. Favorable opinions are published and circulated, while unfavorable ones often remain in a drawer. The market, in other words, is inherently skewed toward outcomes that benefit the commissioning party.
A disappointed litigant can simply continue searching until obtaining an opinion that supports the desired position and then release it into circulation under the imprimatur of the judicial office.
More fundamentally, commissioned opinions create an opacity problem. Outside the immediate participants, no one can know the extent to which the commissioning party framed the questions, proposed revisions, shaped the analysis, or otherwise influenced the final product. The public sees only the finished opinion, bearing the judge’s name.
Nor can outsiders know who framed the questions in the first place. Anyone who has spent time in litigation knows that the framing of the question often determines much of the answer. A carefully crafted mandate can narrow the field of inquiry, emphasize certain considerations, and exclude others. What goes unseen is often every bit as important as what ultimately appears on the page.
Whether fair or not, that opacity invites suspicion. It creates the perception that what may be purchased is not merely legal expertise but a signature, a title, and the institutional prestige of judicial office. In an age increasingly dominated by strategic communications and narrative management, that perception matters.
Nor is it far-fetched to worry that judicial prestige may gradually be absorbed into a professional marketplace where judges are retained precisely because their office lends exceptional authority to privately commissioned work. Over time, the distinction between independent adjudication and elite legal consulting begins to blur.
Another concern is what are often called “repeat players,” or, as I prefer to call them, hired guns: individuals with a distinct point of view for which they are repeatedly retained. Litigation veterans know the pattern well. A stable of experts develops, each acquiring a reputation for being particularly receptive to certain arguments or methodological approaches – and available, for the right fee, to say so. Parties do not ordinarily retain such experts in the hope of being surprised by their opinions. They retain them precisely because they have a pretty good idea of what those opinions are likely to be.
There is a risk that commissioned judicial opinions could drift in the same direction. Certain litigants, institutions, or counsel may come to know which judges are receptive to particular arguments or approaches and seek them out accordingly. Whether justified or not, the perception that parties can shop not merely for expertise but for prestige, coupled with a predictable outlook, risks further eroding confidence in the independence and distinctiveness of the judicial office. Over time, judges risk becoming known not simply for their jurisprudence but for the positions they are expected to take.
Questions also arise about how judicial time and attention are allocated. Commissioned opinions are not dashed off over a weekend. Serious opinions require serious work. Research must be conducted, drafts exchanged, revisions made, authorities checked, and arguments refined. Even in the utmost good faith, legitimate questions remain about whether substantial paid engagements are compatible with ongoing judicial responsibilities.
The ICJ Statute, for example, reflects a longstanding sensitivity to precisely these concerns. Unlike some international tribunals, the ICJ has never adopted a comprehensive, standalone code of judicial ethics. Instead, ethical constraints are embedded in the ICJ Statute and in institutional practice.
Article 16 provides:
No member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature.
The precise contours of that provision have long been debated. In communications regarding judges’ conditions of service, the ICJ has taken the position that Article 16 precludes judges from practicing law, maintaining membership in law firms, and rendering legal or expert opinions. If that understanding accurately reflects the ICJ’s position, the issue discussed here may extend beyond questions of prudence, appearances, or institutional propriety. It may implicate the proper interpretation of the ICJ’s Statute.
To be sure, a detailed examination of ICJ’s Article 16 goes well beyond the modest ambitions of this post. My point is simple. The fact that this issue has generated sustained debate and that the ICJ may have adopted a restrictive view suggests that concerns about judges monetizing the prestige of judicial office are neither fanciful nor novel.
My ethical compass has long been guided by a simple proposition: just because a course of conduct is not expressly prohibited does not necessarily make it appropriate. The more pertinent question, at least for me, has always been this: just because one can, does it follow that one should?
Legality and propriety are not always coextensive. Some of the hardest ethical questions rarely concern what is clearly forbidden. They concern what is merely possible. The relevant inquiry is not simply whether judges can undertake these activities, but whether they should, given the institutional consequences for public confidence in the judiciary.
Ultimately, international courts live or die by their legitimacy. Legitimacy depends on confidence that judicial authority is exercised solely in the public interest. If judicial authority is a public trust rather than a private asset, it follows that there are some things judges should simply decline to convert into private advantage.
Viewed through this broader lens, the issue is not whether a commissioned judge acts in bad faith, whether an opinion is legally persuasive, or even whether any formal ethical rule is violated. Rather, the issue is whether a legal opinion bearing the imprimatur of judicial office is used to support institutional interests in ways that risk blurring the line between independent adjudication and strategic advocacy.
Once framed in those terms, several questions become unavoidable.
Would such an opinion have attract comparable attention if it were authored by a distinguished academic, a former diplomat, or an experienced counsel without a judicial pedigree? One suspects the answer is self-evident. Distinguished international judges are rarely retained merely for their expertise. They are retained because they are judges, and because judicial office carries a prestige and authority that no ordinary professional credential can match.
To borrow Humphrey Bogart’s line from Casablanca: “Of all the gin joints in all the towns in all the world, she walks into mine.” One is entitled to ask: of all the eminent international lawyers, former diplomats, senior counsel, and academics available, why a particular judge, at a particular moment, in a particular controversy?
Perhaps there would be an entirely innocent explanation. Perhaps not. But selection in international legal practice is rarely random. Experienced litigators know this instinctively. Clients facing existential crises do not usually choose their experts and advisers at random.
No impropriety should necessarily be inferred in such circumstances. The broader point I am making is that authoritative voices do not operate in a political vacuum. In controversies with political, institutional, reputational, and often substantial financial consequences, the messenger’s identity may matter almost as much as the message.
Against that backdrop, one need not be a strategic genius to appreciate why parties facing high-stakes disputes might find judicial prestige especially appealing. Judicial office carries symbolic authority that may prove particularly useful in controversies with significant institutional, political, reputational, or financial ramifications. Whether or not one accepts the narrative that something untoward may underlie the selection of a particular jurist, once such narratives enter the discourse, judicial prestige can serve purposes that extend well beyond legal analysis.
An opinion authored by a prominent international jurist outside of his or her official role as judge in a court proceeding, concluding that a party is legally vindicated or should prevail, or that a particular course of action ought to be taken to avoid potentially serious consequences, would scarcely fail to resonate with the intended audience. Which makes that opinion’s provenance all the more relevant.
In sum, the concern is not that judges may supplement their income. Rather, it is that judicial prestige itself may become portable, marketable, and strategically deployable outside the institutional framework that confers its legitimacy. Even when no formal ethical rule is violated, the erosion of institutional boundaries may still occur.
Perhaps that is the central lesson. Institutions rarely lose legitimacy all at once. More often, legitimacy erodes gradually as practices once considered exceptional become routine and boundaries once deemed important blur. Judicial prestige, once detached from the institutional setting that gives it meaning, may be difficult to contain. Once that process becomes normalized, rebuilding the institutional distance on which judicial legitimacy depends may prove far more difficult than preserving it in the first place.
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