Introduction. Democracy and Judicial Governance in Europe

Abstract

This chapter introduces the topic of judicial governance, connecting it to democratic quality. It defines and explains the main models of judicial governance in Europe, and shows that countries based on the judicial council model exhibit on average democracies of less quality, at least when compared with countries based on the courts service model.

1.1 Judicial Governance in Europe

Judicial governance is becoming one of the central topics of political discussion in many European countries. In Spain, the renewal of members of the Consejo General del Poder Judicial—the Spanish judicial council—has in the last years become one of the main elements of tension between government and opposition. Until recently, Finland was an outlier in the Nordic context, but the creation of the National Court Administration has recently ended this situation. In Poland, judicial governance is at the core of a process of rule of law deterioration which has been thoroughly analysed in the academic literature.¹

All these cases, though radically different from one another, have something in common. They show the importance that mechanisms for judicial governance are acquiring in contemporary European democracies. They illustrate that these mechanisms are integrated into power dynamics between government and opposition, between branches of government, and even between the national and supranational levels of governance. Contemporary European democracies, both when they are healthy and when they decay, cannot be understood anymore without analysing the role played by institutions such as judicial councils and courts services. This book is precisely about judicial goverance and its relationship with democracy as a system of government.

More specifically, this book investigates the relationship between judicial governance and democratic quality. It seeks to make a contribution to our understanding of how different designs of judicial governance relate to the quality of democracy in European countries. Relying on a dataset of 46 European countries, the book uses different methodological tools to investigate this relationship. The analysis underlines the complexity of the relationship between judicial governance and democratic quality in Europe. Such relationships are nuanced, and often differ from country to country.

1.2 What is ‘Judicial Governance’?

Judicial governance is essential to the role of judiciaries in democracies. It consists of a number of functions and roles that have a strong impact on court systems. Judicial governance is about how to recruit judges, and by whom. It is about how and when to impose disciplinary sanctions on them. It is about how to administer, manage, and finance the judicial branch, and about how to ensure its independence and efficiency.

Models of judicial governance are, however, diverse. In Europe, different countries have opted for different approaches to the governance of their court systems, creating diverse institutions and entrusting competences on judicial governance to different actors. This diversity is valuable from a methodological perspective, and in this research it will allow comparisons between different systems.

Traditionally, decisions on important issues such as the appointment of judges were handled by politicians, and sometimes by judges themselves.² The emergence of organs of judicial governance has changed this picture. In their piece on the subject, Bobek and Kosar provided a classification of models of judicial governance in contemporary Europe that has proved particularly useful.³ Adapting such a taxonomy, European countries can be classified into at least three ideal types: the Ministry of Justice model, the courts service model, and the judicial council model. In the Ministry of Justice model, competences over judicial governance are retained by the executive branch. Contrary to this, the judicial council and the courts service models entrust functions of judicial governance to independent organs. The main difference between them is that judicial councils have powers over the careers of judges—for instance, appointments, disciplinary sanctions, or promotions—while courts services only have general managerial competences over the judicial branch.⁴

1.3 The Judicial Council Model

Judicial councils are characterized as separate institutions with powers over judicial careers. Furthermore, generally, judicial councils are constitutionalized, meaning that the national constitution regulates aspects of these institutions such as their powers and composition. This being said, the fact is that constitutions do not always provide all the details about the composition and functioning of judicial councils. In Spain, for instance, the 1978 Constitution only mentions a few of the competences of the organ and provides only a basic regulation of the mechanism of appointment of members, many of the aspects of the Consejo General del Poder Judicial being regulated by the Ley Orgánica del Poder Judicial. Similar is the case of France, where several aspects of the Conseil Supérieur de la Magistrature are regulated by legislation.⁵ Garoupa and Ginsburg argue that the issue of constitutionalization of judicial governance matters because ‘if the composition and powers of the council are left to ordinary law (…) they are subject to enhanced manipulation by the government and legislature and hence have a weaker guarantee of independence’, to the point that the authors found evidence of ‘systematically lower independence scores for countries with nonconstitutionalized councils’.⁶

As already explained, judicial councils are characterized as concentrating powers over judicial governance, and in particular for having powers over judicial careers in aspects such as appointments, promotions, or disciplinary sanctions on judges. This is not to say that judicial councils control judicial careers in an arbitrary manner. In many countries, the opposite is true, with the system of access to judicial careers or the circumstances in which sanctions can be imposed are strictly regulated.

Additionally, judicial councils often have powers over the management of the judiciary. This is the main area of overlap between judicial councils and courts services (see next section). While the main competences of courts service institutions are managerial, in the case of judicial councils, managerial powers are only part of their many attributions. These managerial competences reach aspects such as the control of the computer software used by the judiciary, receiving citizens’ complaints related to the justice system, and management of judicial workloads.

Finally, it is worth noting that judicial councils are often entrusted with other powers in national legal systems. For instance, the Spanish judicial council has the capacity to appoint two of the twelve constitutional judges of the Spanish Constitutional Court.

1.4 The Courts Service Model

Courts services are ‘intermediary organizations’ whose main function is ‘in the area of administration (supervision of judicial registry offices, caseloads and case stocks, flow rates, the promotion of legal uniformity, quality case, etc.), court management (housing, automation, recruitment, training, etc.), and budgeting of the courts’.⁷

Like judicial councils, courts services are formally separate from the political branches of government. Unlike judicial councils, however, courts services do not generally have a wide range of powers over judicial careers, and their competences are mostly managerial. These competences are focused on what Garoupa and Ginsburg call ‘housekeeping functions’ which are ‘designed to prevent moral hazard: by insulating the judiciary from the management of resources, the council prevents corruption or distraction from the core task of judging’.⁸

Since courts services do not concentrate all competences over judicial governance together, the question that arises immediately is that of who holds the remaining powers. As those remaining powers refer to aspects as important as the appointment or sanctioning of judges, the question is a highly pertinent one to understand the interaction of this system of judicial governance with democracy. In some cases, like Denmark, Ireland, or Scotland, the courts service model is combined with special bodies for judicial appointments.⁹ Such bodies can be themselves independent and protect judicial independence.

1.5 The Ministry of Justice Model

The Ministry of Justice model has been defined as ‘the longest-standing model. Under this framework, the Ministry of Justice plays a key role in both the appointment and promotion of judges and in the administration of courts and court management’.¹⁰ For instance, in the Czech Republic, the Ministry of Justice has the de jure powers to appoint and dismiss court presidents.¹¹

The existence of a Ministry of Justice model, however, does not always mean that the executive monopolizes all powers over judicial governance. As put by Kosař ‘even in countries where political branches still have the major say (Austria, Czechia, and Germany), the power of judges in judicial governance has increased gradually’.¹² According to the author, ‘Czech as well as German judges, each group in its own way, have been very influential in governing the judiciary, despite the nominally prevailing Ministry of Justice model’.¹³

These constraints on ministerial power over the judiciary in the Ministry of Justice model are often political, rather than strictly legal. In the Czech Republic, for instance, the Ministry of Justice rarely uses its power to dismiss court presidents, given the political costs of this action as well as the ministerial reliance on court presidents to conduct policy and make well-informed decisions about judicial careers.¹⁴

1.6 Other Models and Other Aspects of Judicial Governance

Of course, there are other approaches to judicial governance beyond the judicial council, courts service, and Ministry of Justice models. This is partly because many countries in Europe have sui generis or hybrid approaches to judicial governance. But also because in regions beyond Europe, we can find other approaches to the governance of the judiciary. For instance, Israel relies on a model centred around a Director of Courts, which Lurie, Reichman, and Sagy define as ‘an administrative entity that “manages” the judiciary’ and which, in important respects, ‘may be regarded as a regulator of judges’.¹⁵ In many Latin American countries, a Supreme Court model has historically existed, based on the powers of these institutions over judicial careers.¹⁶

Furthermore, an increasing body of literature is starting to show that even in Europe there is more to judicial governance than judicial councils, courts services, and Ministries of Justice.¹⁷ These other aspects include the role of court presidents and chief justices, in a field that is more decentralized than the classification into ideal models used in this book suggests. In acknowledging the limitations of the approach taken, however, this book remains focused on these broad ideal types. The reason is that these general models still seem to define the approaches to judicial governance in the countries under examination. The cross-country diversity in approaches to judicial governance in the sample of this book can be very well captured by these ideal types, and this cross-country variation can in turn become a fruitful source of comparisons.

1.7 Judicial Governance and Democratic Quality in Europe

This book provides a comprehensive study of models for judicial governance in European countries. In providing for such comprehensive analysis, the research contributes to the task of correcting what Kosař has identified as one of the drawbacks of literature in English in the field: its focus on judicial councils in Central and Eastern Europe ‘which frames the debate and gives it (owing to the specifics of post-communist judiciaries) a peculiar shape’.¹⁸ The research is cross-sectional, focused on a specific moment in time: late 2021 and early 2022, in order to capture the latest dynamics of judicial governance in Europe at the time in which this book was prepared.

Own elaboration

Table 1.1 constitutes to the best of this author’s knowledge the first attempt at exhaustively classifying European countries into these different models of judicial governance.¹⁹ It is important to note that any classification of real-world cases into ideal types is difficult and potentially invites contestation. The reason is that these real-world cases often exhibit features of hybridity and idiosyncrasy that make the taxonomy very difficult. However, in order to justify my classification, the reader can find at the end of this book Appendix A with information—and sources—about each country.

Table 1.1 Models of judicial governance in Europe

As shown in Table 1.1 the most frequent model of judicial governance in the European continent is currently the judicial council model, which has been implemented in 50% of the countries analysed. The courts service model is however far from residual. It exists in 24% of the countries covered by my sample. The Ministry of Justice model does seem to be exceptional, existing only in four instances that together represent 9% of the countries of the sample. Finally, eight countries have been classified as sui generis or fully hybrid models.

Some countries in Table 1.1 were particularly difficult to classify. In line with previous research on organs for judicial governance,²⁰ the subtype of ‘weak Judicial Councils’ was created to acknowledge the existence of institutions that have certain powers over judicial careers but overall have very reduced competences. These are cases of judicial councils that are close to the courts service model.

Table 1.1 also classifies countries into groups by level of democracy quality, following the V-Dem Liberal Democracy Index v. 11.²¹ This provides some preliminary information about the relationship between models of judicial governance and democracy.²² For the group of countries with a high liberal democracy index, a wide variation can be observed, with all models of judicial governance being represented. But it also can be observed that in the case of countries with an intermediate liberal democracy score, the judicial council model is clearly overrepresented. And in the case of countries with a low liberal democracy score, what is most striking is that the courts service model is absent from the group.

Organs for judicial governance are central to the functioning of political systems. But the actual role of organs for judicial governance in a polity does not only depend on the type of institution implemented (in columns in Table 1.1) but also on the level of democratic quality of the system as a whole (in rows in Table 1.1). As we move downwards in the table, countries start exhibiting a lower quality of democracy. An interesting question is whether this translates into organs for judicial governance more subservient to political actors. For instance, countries such as Poland and Hungary were particularly difficult to classify. In these countries, the institutions under examination exist in a well-documented context of rule of law backsliding.²³ This translates into a very sui generis functioning of the organs for judicial governance.

A first, important conclusion can be thus formulated at this point: similar organs for judicial governance can play different roles in a political system depending on the institutional set-up in which they are inserted. Both Poland and Italy have been classified as having a judicial council—even if it is of the weak type in Poland—but the functioning of the judicial branch could not be more dissimilar in these two countries. Both in Austria and Belarus, the executive keeps important powers over judicial careers, but the role that the judiciary plays in these political systems is hugely different, Austria being a healthy democracy while Belarus is, at the time of writing, a dictatorship without regard for the rule of law. This is why, for each case, attention to detail matters. Judicial governance exists in a wider legal and political setting which can modify the way the judiciary works in the system. And even for apparently similar organs for judicial governance, certain aspects of institutional design and the institutional context might make an important difference.

1.8 The Debate on the Merits of Models of Judicial Governance and on their Relationship with Democracy

As the diffusion of the different contemporary models for judicial governance is relatively recent, the debate on the respective merits of each model has only gained momentum in recent years. Furthermore, a large part of the debate is, as acknowledged by Garoupa and Ginsburg,²⁴ often based on theoretical assumptions rather than on comprehensive evidence.

In Europe, a key theme of this debate has been focused more particularly on the benefits and drawbacks of the judicial council model. For a long time, the standard position seemed to be the agreement on the benefits of this approach to judicial governance. According to Kosař, ‘a significant part of the policy guidelines and scholarship on judicial self-governance suffers from normative bias, as many scholars and policymakers have presumed that the rise of judicial self-governance is a one-way path and an unquestionable good’.²⁵

Against this background, a body of literature has recently emerged showing scepticism about the performance of organs for judicial governance. In their work, Voigt and El-Bialy found that countries with separate institutions for judicial governance have less efficient judiciaries, which were capable of resolving less cases.²⁶ Popova has recently provided evidence that judicial empowerment through mechanisms of self-government might not lead to behavioural change on the part of judges.²⁷ Focusing on the case of Slovakia, Kosař and Spáč show that the creation of a judicial council in this country did not prevent political control over Chief Justices, with important implications for the rule of law.²⁸ Furthermore, literature has suggested that judicial councils can reduce democratic accountability and increase corporatism of judges, thus leading to counterproductive outcomes.²⁹ Garoupa and Ginsburg tested the impact of organs for judicial governance on judicial independence, finding a very small effect. According to the authors, ‘the conventional wisdom is that they [organs for judicial governance] enhance judicial independence, but we are skeptical of this claim (…). We also found little evidence in favor of the widespread assumption that councils increase quality or independence in the aggregate (…).³⁰ In Europe, an association of judicial councils has been formed. It seems that judicial councils might reflect the efforts of a kind of transnational movement, seeking to advance a particular model, regardless or not they achieve their desired goals. Judicial independence, in this process, becomes an idea to be wielded in debates rather than a real tangible good’. In a similar vein, in their empirical study, Urbániková and Šipulová did not find enough evidence that judicial councils manage to improve institutional performance of judicial systems, or public confidence in the judiciary.³¹

Based on a comprehensive review of case studies in Europe, Kosar recently advanced four warnings against the judicial council model.³² First, precisely because they concentrate powers they are more attractive to politicians, who will be more eager to capture them. Against this, the author argues that a solution could be the diffusion of powers of judicial governance among different bodies. Second, judicial self-governance just transfers the power to new hands, creating new channels of politicization of the judiciary. Third, judicial councils can be captured not only by the outside but also by the inside. Finally, informal networks might also capture judicial self-governance bodies.

The debate on judicial governance is thus, nowadays, far from settled. This book seeks to contribute with evidence-based arguments to the debate. In particular, in this book, I will seek to understand the relationship of different models of judicial governance with the quality of democracy in European countries, using empirical evidence and different analytical techniques.

1.9 Judicial Governance and Democracy: Some Preliminary Analyses

Judicial governance matters because judiciaries play a central role in the functioning of liberal democracies. This role is manifested in at least two aspects of the relationship between courts and politics. First, at the institutional level, courts systems act as a control on the political branches of government, in line with the principles of separation of powers and checks and balances.³³ Judiciaries are expected to offer a means of redress against the actions of politicians, to limit their power and to ensure that they abide by the rule of law. Second, at the substantive level, judiciaries guarantee and enforce the rights of citizens. Rights, which constitute a core element of liberal constitutionalism, would be rendered meaningless if they were unenforceable by independent judicial actors. Systems of judicial governance should ensure that these two functions are correctly carried out by independent judges in the judicial branch.

The relation of systems of judicial governance with democracy is however not straightforward. As I showed previously, different models of judicial governance appear to be associated with different levels of democratic quality. Figure 1.1 and Table 1.2 provide more fine-grained detail about these associations.

Fig. 1.1

V-Dem liberal democracy index by model of judicial governance

Table 1.2 Correlations (Spearman's rho) between models of judicial governance and democracy indexesFootnote

Non-parametric Spearman’s rho correlations are used as the data does not follow a normal distribution. Data on models for judicial governance justified in Appendix A.

Own elaboration

Using data from the V-Dem Liberal Democracy Index v.11,³⁵ Fig. 1.1 shows that countries with a judicial council have on average democracies of worse quality than countries with a courts service.

In Table 1.2, I show the correlations between the four approaches to judicial governance and three different types of indexes of democratic quality from V-Dem v.11³⁶: the Liberal Democracy Index, the Electoral Democracy Index, and the Equality Before the Law and Individual Liberty Index.

The correlations between all of these indexes and the different models of judicial governance seem to point in the same direction. In the case of the judicial council model, this approach to judicial governance is negatively associated to all of them, meaning that countries with a judicial council are more likely to have a worse score in the different democratic quality indexes. Something similar happens with the category of hybrid/other models of judicial governance. These negative correlations are significant for the case of the Judicial Council with the Liberal Democracy Index and with the Equality Before the Law Index.

The opposite is true of the courts service model. This model is positively associated with the different indexes of democratic quality. This association is significant and particularly strong in all three indexes. Put differently, in countries with a courts service approach to the management of their judiciary we are more likely to find a better quality of democracy.

Finally, the Ministry of Justice model seems to be scarcely correlated with the different indexes of democratic quality.

1.10 Object and Aims of This Book

Judicial governance and democracy thus interact in complex, paradoxical ways. Institutions like judicial councils have been defended with the argument that they are good for essential aspects of democracy such as judicial independence and the rule of law.³⁷ However, countries where judicial councils exist fare worse on average in relation to all main indexes of democratic quality. Courts services seemed to be much more positively correlated with democratic quality, despite that they are not the ‘standard’³⁸ option for judicial governance promoted by European institutions. And different approaches to judicial governance, regardless of their original aims, can be found in countries with different levels of democratic quality, sometimes becoming instruments of illiberal governments to consolidate their power.³⁹ Democracy and judicial governance are thus two phenomena connected in intriguing ways.

This book is about that connection. In exploring it, I will try to provide a response to a general research question: what is the relationship between organs for judicial governance and democratic quality? In responding to such a research question, my findings make a contribution to our understanding of the relationship of organs for judicial governance—especially judicial councils—and democracy. Although countries of the sample based on the judicial council model have on average democracies of worse quality (see Fig. 1.1), I show that this might simply be explained by an omitted variable bias: if we take into account the different levels of economic development of the countries of the sample there does not seem to be a negative effect of having judicial councils on democracy. I explain this through modernization theory. Furthermore, I show that in all instances of low levels of quality of electoral democracy the model of independent judicial councils was absent. My analyses also suggest that, keeping constant other factors such as the level of economic development and EU membership, countries with independent judicial councils—and non-corrupt judiciaries—have better levels of electoral democracy quality than countries without such approach to judicial governance. At the same time, however, my findings also suggest that having an independent judicial council is logically irrelevant to cases of a high quality of electoral democracy: other combinations of factors seem to be more relevant, among them judiciary-related conditions such as high levels of court independence and low levels of judicial corruption.

Focused, therefore, on the relationship between judicial governance and democracy, the book has three different but interconnected aims:

• The first aim of this book is academic. Despite that the book is written—I hope—in an accessible manner, in the following pages I aim to make an academic contribution to our understanding of institutions for judicial governance. To do so, the research will analyse diverse aspects of the relationship between democracy and judicial governance, such as the different trade-offs of design of institutions for judicial governance and their relationship to democracy, or the association between different types of these institutions and indicators of democratic quality. The book thus seeks to advance our knowledge on a very important topic, which is central to the academic, political, and social debates about the organization of the judicial branch: how to build organs for judicial governance that contribute to democratic quality.

• The second aim of this book is policy-oriented. Based on the different analyses carried out in the book, in Chap. 5, I will present some evidence-based policy reflections about organs for judicial governance. These reflections are put forward with the overall objective to improve the capacity of organs for judicial governance to contribute to democratic quality. My findings and reflections refer mostly to Europe, the world region in which I specialize as a researcher and which is the basis of this book. But, taking into account the modest generalizability of the findings of the research, academics and policymakers in other world regions might find them also useful.

• The third aim of this work is to contribute to public debates. In a moment in which social debate about the appropriate forms to govern judiciaries seems to burgeon, this book aims at presenting the main aspects of this topic to the general public. Some parts of this book are unavoidably more complex and require some methodological background—especially in Chaps. 3 and 4. But in general I have tried to write this book, to the extent that it was possible, in accessible language. Also for this reason, although there are relatively complex empirical analyses throughout the book, these are presented in the clearest and most easily readable way. With this, I hope to contribute to public debates about judicial governance in European countries, providing citizens interested in the topic with tools that hopefully will make such debate more fruitful.

1.11 Structure of the Book

This book is structured as follows. This chapter has introduced the reader into the main topic of the research, the relation between democracy and judicial governance. The chapter has argued that the relationship between judicial governance and democracy is of an extraordinary importance and yet it is also marked by paradoxes. In fact, we know precious little about how democracy and judicial governance interact, especially at the empirical level.

Chapter 2 adds further complexity to the question of the types of design of organs for judicial governance in Europe. In particular, I will build a complementary typology of models of judicial governance that takes into account the degree of independence vis-à-vis political actors of each institution in each country, in addition to their powers. Building on such typology, I will explore the different dilemmas that we confront when designing organs for judicial governance, and how these dilemmas relate to the preservation of democratic systems of government.

Chapters 3 and 4 provide a more fine-grained analysis of the relationship between models of judicial governance and democracy in contemporary Europe. To do so, I will make use of empirical material and of statistical and configurational methods to carry out my analyses.

Throughout the book, thus, I will present information about the relation between democracy and judicial governance, and also about the pros and cons of each system for the government of the judicial branch. In Chap. 5, taking stock of these findings and of the findings of other research in the field, I will present some reflections about models for judicial governance. The main aim of these reflections is to improve the contribution of systems for judicial governance to the better functioning of democratic systems, and also to minimize some trade-offs that are inherent to the design of these institutions.

The final Appendix presents the data used for the empirical analyses that are at the core of my argument.