Degree Of Judicial Independence Research Articles

Judicial Independence and Human Rights in Autocracies

Why do some autocracies empower their judiciaries to uphold human rights even though independent judiciaries can prevent the repression of opposition? We develop a theoretical framework to explain why dictatorships benefit from judiciaries that restrict the government's use of coercion, thereby addressing the contradiction between the function of independent judiciaries and their institutional origins. By granting a degree of judicial independence, the regime shapes how the public views the state's use of coercion. When the judiciary is more effective in preventing state repression, the public will have more confidence in the legitimacy of coercive acts that are not blocked by the judiciary. This shifts public opinion against the opposition in favor of the regime, reducing the public's incentive to support the opposition. Unlike propaganda and censorship that directly control the information that citizens receive, partially independent judiciaries enable autocracies to control how the public processes the informational content of coercion.

The Practice of Law and the Promise of Rule of Law: The Advokatura and the Civil Process in Tsarist Russia

The Practice of Law and the Promise of Rule of LawThe Advokatura and the Civil Process in Tsarist Russia William Pomeranz (bio) The history of the prerevolutionary Russian advokatura has concentrated on the prominent attorneys who achieved fame at the major political proceedings of the postreform era. The 1878 trial of Vera Zasulich for the attempted assassination of St. Petersburg Governor Fedor Trepov and the 1912 trial of Mendel Beilis on ritual murder charges serve as bookends to what was an intermittent string of controversial and highly politicized prosecutions. The Zasulich and Beilis trials provided platforms for talented defense lawyers (prisiazhnye poverennye, sworn attorneys) to question in open court the credibility of the government’s cases. Moreover, both trials resulted in “not guilty” verdicts, indicating a degree of judicial independence usually not associated with autocratic regimes. The personal notoriety of leading political defenders has overshadowed the fact that most sworn attorneys in late 19th- and early 20th-century Russia were neither great social activists nor “radical opponents of the tsarist order,” as one historian has described them.1 Instead, sworn attorneys in tsarist Russia primarily specialized in the less glamorous and inherently more conservative practice of civil law, the body of law regulating private relations.2 Maksim Moiseevich Vinaver, a prominent sworn attorney and civil law specialist (tsivilist), noted that the principal task of an advocate, not only in Russia but all over the world, was the “realization of civil justice in a [given] country,” a responsibility that rarely attracts public attention.3 [End Page 235] As in other legal systems, Russian sworn attorneys engaged in disputes that from time immemorial have required lawyers: contracts, real estate, wills, civil litigation, commercial transactions, corporate compliance, bankruptcy, and so on. Some lawyers thrived in this environment; others eked out a more modest—and mundane—existence. By focusing on the routine practice of civil and commercial law, this article provides a more balanced picture of the daily lives of sworn attorneys. Yet it also contends that, in response to a growing demand for legal advice, the civil practitioner acted as both a “servant and a creator of law,” thereby placing the advokatura at the forefront of legal development in Russia.4 Heretofore, the study of tsarist civil law primarily has focused on the most powerful institutional players—the important legislative commissions, Russia’s highest appellate court (the Civil Cassation Department)—and how their pronouncements filtered down into Russian society. In particular, William G. Wagner’s pathbreaking analysis of the Civil Cassation Department showed how the high court’s rulings addressed the gaps and inconsistencies of Russian civil law, especially in the areas of inheritance and property rights.5 Yet, as Wagner demonstrated, all these judicial decisions largely arose in reaction to developments within Russian society, not at the command of the Russian state It was the advokatura and its organized corporate structures (sovet prisiazhnykh poverennykh, the bar) that served as the crucial intermediary in the search for civil justice. The Judicial Reforms of 1864 specifically tasked the profession with turning the private complaints of individuals and companies into legal actions. But the development of tsarist civil law cannot be understood simply by reviewing the docket of individual advocates. One also must consider the social and political implications of the civil process, and the profession’s critical role in promoting it. How did the representation of business and economic interests by sworn attorneys affect their overall public image? Was the development of civil law—which invariably involved the defense of property interests—a viable path to the greater recognition of civil rights and the rule of law in Russia? Scholars have contrasted the Anglo-American notion of “rule of law”—and its reliance on certain fundamental rights and natural law principles that stand above the state—with the German idea of Rechtsstaat, or the [End Page 236] “law-based state.”6 From a theoretical standpoint, the Russian concept of pravovoe gosudarstvo closely resembled its Continental—and fellow civil law—counterpart: a state subject to, and bound by, its own laws. Such a theory was not cluttered by long philosophical discussions of natural law but instead sought to limit executive power by installing an...

Institutional Hysterisis: Courts and Politics in the American States (Chapters 5&6 of a Book Project)

These chapters document that civil law origins in the American States have had a persistent influence on the interactions between state courts and state legislatures during the twentieth century. One important philosophical difference between civil-law and common-law legal systems arises from differences in their beliefs regarding the appropriate degree of judicial independence. We document that legislatures in civil law states have been relatively slow in granting their judges independence during 1912-2000. Then, using data during 1960-2000, we show that civil law legislatures tend to cut judicial budgets when their judges become more independent. This legislative behavior is consistent with the predictions of a model that we build where legislatures have preferences for a weak or strong judiciary. Our results are consistent with previous chapters of this book which show that the political culture in state legislatures is slow-moving.

Legal Origins and the Evolution of Institutions: Evidence from American State Courts

Several important studies of institutions assume that the quality of institutions is persistent following some formative historic event. The assumption of institutional persistence, however, begs the question of how these institutions persisted. To better understand this issue, this paper examines the evolution of state courts in the United States. We begin by reviewing the evidence that France, Spain, and Mexico operated civil-law legal systems in territory that would later make up thirteen states. One important philosophical difference between civil-law and common-law legal systems arises from differences in their beliefs regarding the appropriate degree of judicial independence. To show how these beliefs, if persistent, would manifest themselves, we present a model in which legislatures allocate budgets to their judges. In the model, common and civil-law legislatures have different preferences regarding the level of judicial independence. Our model predicts civil-law legislatures will give fewer discretionary resources to their judges when judicial elections are replaced by a system of appointments. We confirm this prediction using state-level data for the period 1961-1999. Finally, we argue that one important reason why civil-law preferences for a weak judiciary appear to have persisted in the American states is that the political culture within state legislatures is slow-moving.

Legislative sanctions and the strategic environment of judicial review

The independence of the judiciary cannot be assumed. The creation and maintenance of an independent judiciary are difficult political problems, chiefly because independent social and political institutions necessarily make life more difficult for those holding political power. Powerful political actors constantly face the temptation to subvert judicial independence and transform the court system into a more malleable political instrument serving their own immediate needs. Such temptations may be particularly great when the courts become obstructive and the means for overpowering the courts seem readily at hand. The constitutional response to this difficult problem is to attempt to insulate the courts from political pressure. The U.S. Constitution employs various devices to this end, including giving federal judges lifetime appointments and prohibiting the reduction of their salaries. Of course, there are limits as to how independent the courts can or should be. It must be possible to hold even independent judges accountable for their actions, through impeachment, for example. Given the political power entrusted to judges, it would seem prudent to ensure that they are at least somewhat responsive politically, a goal typically achieved through a political appointment process. Nonetheless, protecting a judge’s autonomy is of paramount importance. In a variety of other ways, the formal protections of the constitutional text are only the first step toward securing effective judicial independence. There remain myriad loopholes that determined elected officials might use to punish the judiciary for its actions and reduce its independence.1 The American federal judiciary, therefore, may be better understood as “interdependent,” rather than truly independent, and the degree of independence that federal judges enjoy is, in fact, a function of the cooperation of elected officials and the degree of judicial independence they are willing to tolerate. Judicial independence is not “grounded so firmly in the Constitution that it cannot be threatened by politicians or interest groups.”2

Institutional Change in the Electricity Industry: A Comparison of Four Latin American Cases

By means of a comparison of the process of restructuring of the electricity industry in Argentina, Bolivia, Brazil, and Chile, I examine the validity of three hypotheses about the determinants of institutional change in this industry. The case studies show that ideology plays a major role in shaping the outcomes of the institutional change process; distributional conflict, or the conflict over the economic rents that can be extracted from the electricity industry, also has a significant influence on institutional change, although somewhat weaker than ideology; finally, the degree of judicial independence in a country can affect institutional transformation with regard to property rights, but not with regard to the degree of reliance on competitive mechanisms of resource allocation.