How legal indicators influence a justice system and judicial behavior: the Brazilian National Council of Justice and ‘justice in numbers’

Abstract

This article explores how the rise of legal indicators influences the administration of justice and judicial behavior. The incorporation of mathematical formulas, complex equations, and statistical data into the administration of justice has a strong influence on judges, particularly on internal competition for promotion and professional disciplinary control, as judicial activity is now monitored, measured, and regulated by numbers. As a case study, I examine how the ‘mathematical turn’ has transformed the internal administration of the Brazilian justice system, analyzing how sanctions and rewards are not based on substance or ideology, but rather on numbers of sentences, trial length and amount of procedures in a court's dockets. Assessment of the quality of adjudication is primarily based on quantitative evaluations based on statistical numerical data. Based on the Luhmannian concept of ‘legal irritants,’ on the Foucaldian notion of bio-power and on Llewellyn's, legal realist insight about judicial behavior, I analyze how judges have to manage their own statistical records. In this sense, the Brazilian National Council of Justice and its project ‘justice in numbers’ provide a rich case study of the internalization of legal indicators into the justice system. As the Brazilian judiciary is now governed by statistics, innovative indicators emerged, such as the comparative analysis of performance, ‘procedural traffic jams,’ and level of litigiosity in different tribunals. In this context, managerial efficiency has become very important and judges must digest their statistical data to get promoted and avoid disciplinary sanctions as evidenced by concrete examples.