The Politics of Judicial Reform in Eastern Europe

Abstract

What kind of judicial institutions is likely to emerge in countries undergoing democratization? What are the conditions for successful judicial reform in new democracies? The relevance of these questions for comparative political science was not always evident. However, recent studies have contributed to change this situation by depicting how democratic consolidation and successful economic reform require independent judiciaries that effectively protect political and property rights and how courts have contributed to policymaking and the investigation of abuses of power in several West European democracies.1 If the shape of judicial institutions affects the prospects of democratic resilience and consolidation, and if courts are politically powerful institutions whose operation can be understood in the same terms as that of other political then the theoretical question concerning the political factors that shape judicial institutions in new democracies becomes highly relevant.2 This article discusses explanations of judicial institutional design in three new East European democracies, Bulgaria, Hungary, and Poland. It advances an explanation of institutional change in the judiciary that focuses on the bargaining processes between political actors interested in maximizing their power under conditions of electoral uncertainty. This approach has been adopted elsewhere to account for variation in other types of political institutions, and its basic rational choice assumptions have motivated works that address the issues of institutional design in new democracies.3 Finally, the article discusses the outcomes of judicial reform in these countries from 1989 to 1997, particularly changes in judicial personnel and the powers of the presidency, executive, and parliamentary majorities in appointing judges and supervising judicial careers. New judicial institutions in emergent democracies are shaped primarily by the strategies of dominant political actors who attempt to maximize the congruence of the judiciary with their interests and its responsiveness to their priorities. In the establishment of the rule of law in new democracies, the inception of judicial institutions appears to be a process shaped by domestic actors fighting for political sur