Hon. Chief Justice Chris Kourakis
Supreme Court of South Australia | AUSTRALIA
Short Bio: The Honourable Chief Justice Kourakis was the Legal Services Commissioner for the State of South Australia from 1993-1997 and then the Solicitor-General for the State of South Australia from 2003-2008. His Honour was appointed to the bench of the Supreme Court of South Australia in 2008 and then appointed as Chief Justice in 2012. The Honourable Chief Justice Kourakis has served as National Patron of the Hellenic Australian Lawyers Association and the Chairperson of the Judicial Council on Cultural Diversity since 2014 and 2018 respectively. Chief Justice was appointed as the Chair of the National Judicial Council of Australia on 17 April 2020 but has now resigned from that position.
Event: SDGs Conference 2025
Date: September 24, 2025
SPEECH: I intend to address the rule of law as a constitutional concept in the internal government of nation-states. I will not address the rules-based international order, an order which, in recent times, is more honored in its breach than its observation. However, similar geopolitical tensions are threatening both. Those tensions radiate out from the fault line between the world’s two great economic powers, the United States and China, in their competition for global hegemony.
The fallout adversely affects both superpowers as well as developed and developing countries around the world, by undermining their national economies, the living standards of their people, and their sovereignty. Historically, it is not surprising that in this period of existential threats, so many look to demagogues and authoritarians for their salvation. Nations around the world are riven by bitter divisions that threaten democracy and the rule of law.
But let me first quickly trace the history of our liberal democratic tradition and the related principles of the rule of law and the independence of the judiciary. The democratic government adopted by ancient Athens, interspersed by periods of tyrannical rule, was exercised directly by its citizenry and not mediated through parliamentary representatives. It was radically participatory, but it was not a liberal democracy: it recognized only one of what we now know as human rights, the right to free speech. Pericles, in his famous funeral oration, explained: We Athenians, subject our decisions on policy to proper discussions, for the worst thing is to rush into action before the consequences have been properly debated.
Athens’ participatory democracy extended to the administration of the law. The legal codes of law makers such as Draco and Solon were enforced by juries comprising upwards of several hundred citizens who cast their decisions by ballot in accordance with which orator most appealed, usually to their reasoning, but all too often to their passions and biases. However, in the same period, a concept of justice closer to ours was conceived.
The Aristotelian ideal is that the law be governed by reason and morality, unaffected by passion. Aristotle warned that the direct administration of the law by the sovereign, even if it be an assembly of the citizenry, allowed passion to pervert the reason of even the best of rulers. The just resolution of disputes is a deeply rooted human need. It is the cornerstone of the social contract. The Aristotelian ideal has been passed down through the religious precepts and philosophical thought.
Think the fourth Beatitude: “blessed are those who hunger and thirst for justice, for they shall be filled.” And Leviticus: “Do no pervert justice; do not show partiality to the poor or favouritism to the great”, commands which still find voice in many judicial oaths to this time. However, the constitutional adoption of the Aristotelian ideal was many centuries in the making.
The 17th century was an era of great political turmoil in England. James II was crowned in 1685, but by 1688 had become deeply unpopular. He ruled by decree, dismissed judges who disagreed with him, and fermented religious and political divisions. All this in a period of shifting European alliances. All too familiar stuff. Fearing a return of civil war, the Dutch prince William of Orange was invited by the parliament to invade and save the nation and the religion. He ruled in collaboration with the Parliament, in a way that laid the foundation for what has become the Westminster form of constitutional and democratic monarchy.
In 1701, Parliament, with his assent, passed the Act of Settlement, which provided that judges retained their office for life unless both Houses of Parliament voted to remove them for misbehavior. The monarch’s power to control the judiciary, by threats, punishment, or dismissal, was abrogated forever. Montesquieu (1689–1755) based his treatise ‘The Spirit of Laws’ on that legislated separation of powers. He argued that “there is no liberty if the [power of judges] be not separated from the legislative and executive [powers]’ because ‘the life and liberty of the subject would be exposed to arbitrary control.” He contended that an independent judiciary would decide cases by reasoning from the circumstances of each case, in accordance with the law.
Montesquieu, however, did not favor the establishment of an institutionally independent judiciary appointed from the ranks of the preeminent jurists. To this day, the inquisitorial courts of the civil law jurisdictions comprise university graduates trained to be judges and not lawyers, organized like a department of a state, with promotion and short-term leadership positions decided by the executive government. Features which make those courts more vulnerable to executive interference, a trend which emerged strongly in Europe from 2010, including Poland`s muzzle law in 2019. Judges remain in prison to this day in Turkey as a result of repressive measures taken in 2016.
On the other hand, the English jurist Sir William Blackstone (1723–1780) contended that the public’s liberty could only be preserved by the distinct and separate existence of the judicial power if it was exercised by a corps of independently minded and organized judges learned in the law, appointed by the Crown but not removable at its pleasure. Blackstone’s view was undoubtedly influenced by the historical fact that English common law was developed by judges who studied judicial precedents and applied them logically and coherently. Whereas the law in civil law jurisdictions was codified by the legislature.
On either approach, the judiciary is, as one of the founders of the US Constitution, Alexander Hamilton wrote, ‘from the nature of its functions, the least dangerous to the political rights of the Constitution, having neither force, nor will, but merely judgment’. A former Chief Justice of Australia explicated that theme when he said that ‘the judiciary has public confidence as its necessary and sufficient power base. It does not have, nor does it need, the power of the purse or the power of the sword to make the rule of law effective, provided the people whom [it serves] have confidence in the exercise of the power of judgment.
At the close of the 20th century, many were celebrating what was called the ‘end of history’ and the dawn of a liberal democratic eternity. Constitutional limitations on governmental power, the rule of law, and an independent judiciary were proclaimed as the gold standard for all nations to follow. Liberal democratic constitutions guaranteed an ever-increasing range of human rights, protected by the independent judiciary. The autocratic demagogue ruling by decree was relegated to history or so it seemed.
Well, history’s wheel has not stopped turning. Geopolitical rivalry, global economic uncertainty, and internal crises are back. However, whereas the crisis in 17th century England gave birth to liberal democracy, and the aftermath of World War II to a rule based international order with the United Nations at its core, opposing reactionary forces are at work today. Nations are at war with themselves. Divisions are deep, and political rhetoric can be hateful and even violent, resulting in an aggressive majoritarianism that challenges the legitimacy of the independent judiciary.
Traditional and social media now pass judgment before trial and without ever hearing both sides, in a perversion of the Athenian jury, or they condemn the decisions made by judges after the event, not caring to inform themselves of the law or the facts. Growing numbers of sovereign-citizens who refuse to recognize any legal authority clog up courts with pseudo-law defenses, and, increasingly, take the law into their own hands. The problem is exacerbated when the executive anticipates constitutional obstacles to its agenda by appointing judges who it believes will be subservient to its political program, trashing the until recently accepted convention that only those who are most skilled and most independently minded will be appointed judges.
The identification of a court with a political party becomes complete when judges breach convention by not distancing themselves, or their close family members, from political parties to which they are sympathetic. Watching from Australia, where constitutional protections and conventions remain strongly embedded and institutions robust, it is deeply disturbing to hear frequent references to the political connections of a judge when reporting on court decisions.
The capacity, or even the will, of political leaders to fix this, at least in the short term, is questionable. It is of first importance, therefore, that judges adhere strictly to the judicial method and continue to fully explain their reasoning in their judgments. They must not sit on a case if there is a reasonable apprehension of bias. They must distance themselves from the politically or financially powerful. They must model respectful behavior which recognizes the equal human dignity of all people.
Most importantly, the judiciary and legal profession must show themselves to be the servants of the public by substantially expanding timely and cost-effective access to courts so that wrongs are remedied. If courts do not satisfy the public’s thirst for justice, then the public will see no value in the independence of the legal system and have no reason to defend it when it is threatened by powerful interests.