Modernization, Democracy, and Judicial Governance

Abstract

This chapter puts the relationship between judicial governance and democratic quality in context. Using modernization theory the chapter hypothesises that the negative correlation found earlier in this book between the existence of judicial councils and democratic quality is a result of an omitted variable bias: that omitted variable is modernization. Using robust regressions, the chapter shows that, in general, variations in the design of judicial governance have no significant effect on the quality of democracy in European countries.

3.1 Introduction

In Chap. 2, I presented different models of organs for judicial governance, analysing their respective advantages and disadvantages.

A priori, courts services can be compatible with liberal institutions and perform an efficient role in the context of a well-functioning democracy. However, in countries relying on this model of judicial governance, judicial independence is protected through arrangements that go beyond the courts service, such as independent judicial appointment commissions. If these alternative arrangements were to fail in protecting the judicial branch vis-à-vis a potential illiberal or authoritarian executive, the courts service might be able to do little to protect judicial independence, thus posing a risk for the stability of democracy.

Strong judicial councils seem theoretically equally dangerous when they are controlled by politicians, at least if they are under the control of one single political party. This is because this party could instrumentalize the council, for instance, putting it at the service of the government and against the opposition. Politically controlled councils are likely to be unable to maximize the value of judicial independence. As put by Garoupa and Ginsburg, ‘Sometimes these pressures for more accountability can lead to assaults on judicial independence, particularly if a small group of principals is able to control the process of supervision. In such circumstances, a politically accountable, strong judiciary may revert back to a politically dependent, weak judiciary, in a rising authoritarian regime’.¹

The remaining model is that of strong and (formally) independent councils. A priori, this model of judicial governance can safeguard judicial independence to a large extent, and therefore, it seems a very garantiste option in terms of its contribution to the preservation of liberal democracies. However, empirical data seems to show reasons for scepticism. My analyses showed that the quality of democracy in countries that had implemented this type of independent judicial council was not particularly high compared to countries with other models of judicial governance, but rather the opposite.

This chapter puts these findings in context. In particular, the chapter uses statistical techniques to shed light on the paradoxical relationship between judicial governance and democracy at which my previous analyses hinted. My findings suggest that, when more factors are taken into account, there is no evidence to fear that judicial councils are actually detrimental to democratic quality.

More specifically my work in this chapter is grounded in modernization theory, which posits that political democratization is associated with economic development.² Countries often implemented judicial councils during processes of transition to democracy. These countries had often younger and more fragile democratic systems of government. In this chapter, I show that at similar levels of economic development, countries with an independent judicial council do not do worse in terms of democratic quality after all. In the most conservative reading, the data qualifies the evidence presented in Chaps. 1 and 2 about the poor performance of judicial councils with regards to democratic quality.

This finding has important policy implications that will be discussed in more detail in Chap. 5.

3.2 The Political Origins of Organs for Judicial Governance

In Chap. 1, I explained that different European countries have opted for different models of judicial governance. Drawing on Bobek and Kosar,³ these models were classified into some ideal types: the judicial council model, the courts service model, and the Ministry of Justice model. With this background, an obvious question arises: which factors explain this variation across countries? Or said in different terms, which reasons explain these different choices of models of judicial governance in Europe?

Despite theoretical and empirical differences among authors, most literature in the field seems to agree on certain factors as to the explanation behind the diversity of approaches to judicial governance in Europe. These factors are as follows:

• Authoritarian backgrounds and democratization. This is one of the most frequently used variables in the literature. Works in the field have systematically found evidence about the impact of levels of democracy and authoritarian backgrounds in choices of models of judicial governance.⁴ In general, it is expected that countries that have undergone—and are exiting—authoritarian periods will implement the judicial council model as a way to signal commitment to democracy once authoritarism is over, and to try to stabilize their young political systems.

• Legal families. Evidence about the impact on judicial governance of types of legal families is mixed in the literature. On the one hand, in their important work on this topic, Garoupa and Ginsburg did not find evidence about the capacity of legal families to explain the implementation of systems of judicial governance.⁵ In previous research, however, it was found that having a Romanistic legal family could be part of the explanation for why certain countries implemented a judicial council model.⁶ The idea behind the impact of legal families on choices of models of judicial governance has to do with the processes of diffusion and imitation among countries with similar characteristics, and with more easy adaptation of certain models of judicial governance to the underlying characteristics of diverse legal cultures.⁷

• Europeanization. Finally, different authors have argued that the diffusion of the judicial council model in Europe had to do with Europeanizing pressures: its implementation seemed to become a ‘soft standard’ for many countries that aimed at accession to the European Union, this being the case especially for Central and Eastern European countries.⁸ However, we know less about how these Europeanizing dynamics have impacted the diffusion and survival of the other approaches to judicial governance in Europe.

Let me focus on the first set of variables presented above: authoritarian backgrounds and dynamics of democratization. As explained earlier, this set of explanatory variables is particularly relevant to my argument, as the main object of this book is the study of the relationship between judicial governance and democracy. Furthermore, in Chapter 1, I showed that a somewhat paradoxical correlation existed between democratic quality and judicial governance: countries relying on the courts service model tend to have a better quality of democracy than countries adopting the judicial council model. The analyses in Table 3.1 can help to explain why.

Table 3.1 Correlations (Spearman’s Rho) between models of governance and political backgroundFootnote

To account for ‘current liberal democracy’ status and for ‘historically liberal democracy’, I use the V-Dem v.11 liberal democracy index (‘v2x_libdem’), countries being classed as authoritarian if in a given year they score less than 0.5 in this variable, and not authoritarian otherwise. For ‘historically liberal democracy’ countries score 1 if democratic for at least 90 consecutive years. For the variable ‘preserved/reinstated pre-authoritarian constitution’, I exclude the countries that were historical liberal democracies, and I use the Comparative Constitutions Project as my main source Elkins and Ginsburg (2021) Characteristics of National Constitutions, Version 3.0.

The first column in Table 3.1 confirms that there seems to be a tendency according to which higher liberal democracy scores are associated with the existence of the courts service model; countries with high liberal democracy scores are also less likely to have a judicial council, although the association is not significant. Additionally, for the sample, countries with a Ministry of Justice model seem to be positively associated with a higher democratic quality, although the association is rather weak.

The second column in Table 3.1 provides further information that can be useful to make sense of the puzzling relationship between judicial governance and democracy. It shows that countries that have a long, uninterrupted history of democratic quality are associated with the courts service model and countries that experienced authoritarian breakdowns are associated with the judicial council model, with the correlations being significant in both cases. The correlations support with empirical evidence the idea that judicial councils were an arrangement created in democratic transitions. There might be many reasons for this. By way of hypothesis, it might be that countries experiencing authoritarian traumas believed that judicial councils would help stabilize their young democracies. It might also be that these countries wanted to signal a commitment to democracy through the creation of judicial councils in the transition period, or that they imitated successful experiences of democratic transition in other countries. Whatever the reason, the fact that there is a clear association between authoritarian backgrounds and implementation of judicial councils can help us understand the paradox that was formulated in Chap. 1: perhaps countries with a judicial council have lower levels of democratic quality precisely because these institutions were created in young, fragile democracies. Later in this chapter, I explore this question in more detail.

The last column in Table 3.1 also tells us something very interesting about democratization, transition periods, and judicial governance. As seen above, countries that have experienced a repressive regime generally tend to implement a judicial council once they democratize. However, there is a caveat to this: the mechanism seems to depend on whether the country enacts a new constitution in the transition period or instead returns to the constitution that existed prior to the repressive regime. Countries with an authoritarian past but which preserved or reinstated their pre-authoritarian constitution at the end of the repressive regime are generally associated with courts service model. This finding sits in line with previous research in the field,¹⁰ confirming that constitutional politics in the transition period had a very important impact on choices regarding models of judicial governance.

A final observation has to do with the implications of the association between authoritarian backgrounds and the implementation of the judicial council model. This correlation suggests that European countries have generally taken a reactive approach to the implementation of this approach to judicial governance. It is generally when they have experienced authoritarian regimes, and as a response to this, that the judicial council model is implemented. This approach seems to have been reinforced by European institutions, that only insisted on the need to create judicial councils in younger democracies, as opposed to older democracies.¹¹ This seemed to be the case of Central and Eastern European countries. On the one hand, these countries had authoritarian regimes. On the other hand, their democratic transitions took place when the judicial council had already become a standard of good practice promoted by European institutions.¹² These two factors converged in these instances, facilitating the case for the implementation of judicial councils.¹³ The question is whether these institutions lived up to their promise of protection of democracy.

3.3 Modernization, Democracy, and Judicial Governance

Empirical research in political science has tried to understand the causes that explain the creation and consolidation of democratic systems of government. The most successful approach so far to this fascinating question is modernization theory.

Modernization theory poses that processes of democratization are strongly linked to economic development. Already in 1959, Lipset presented evidence about this link between economic development and democracy, and tried to explain its causal mechanisms. In the words of the author, ‘the factors of industrialization, urbanization, wealth and education are so closely interrelated as to form one common factor. And the factors subsumed under economic development carry with it the political correlate of democracy’.¹⁴ Thus, the causal link between economic development and democratization is the process of modernization.

Subsequent research has deepened and fine-tuned our understanding of the relationship between economic development and democracy, focusing on changes to class structures and societal values. As put by Inglehart¹⁵ ‘economic development brings democracy if it changes people’s values and behaviour. Economic development is conducive to democratization insofar as it (1) creates a large and articulate middle class and (2) transforms people’s values and motivations, so that they give higher priority to free choice and freedom of expression’.

In their more recent work, Norris and Inglehart point to four mechanisms linking economic development and democratization.¹⁶ First, urbanization and industrialization facilitate political communication and organization. Second, when economic survival is guaranteed, people give self-expression values a higher priority. Third, educational levels help people become more ‘effective at getting democracy’. Fourth, the increasing importance of the knowledge sector translates into more people having jobs that require ‘thinking for themselves’. Additionally, the authors point at democracy’s big advantage: ‘it provides a non-violent way to replace a country’s leaders’.¹⁷

This connection between economic development and democratization can be enlightening with regards to the paradoxical relations between judicial governance and democratic quality that I am scrutinizing in this book. Strong, independent judicial councils were a priori designed in such a way that they should make a contribution to the quality of democracy in the countries where they are implemented. However, as I explained in the previous chapters, countries with such institutions fare worse with regards to democratic quality.

My expectation is that modernization theory can shed light on this paradox. In particular, countries with strong and independent judicial councils are also countries where the background conditions that lead to democratization, such as economic development, are less present. Therefore, if we take into account the effects of socio-economic backgrounds which are less favourable to democratization in countries with judicial councils, we might have to reassess the associations of these institutions with democratic quality. Overall, my hypothesis in this chapter is that the existence of judicial councils is actually not associated with lower democratic quality when the level of economic development of the country is accounted for. The analyses in this chapter are thus not intended at establishing causation, but simply at discarding a certain association between my variables.

3.4 Methods

My aim in this chapter, which is central to the argument of the book, is to shed further light on the relationship between judicial governance and democracy. In particular, I want to better understand the relationship between democratic quality and the two variables related to judicial governance covered in the previous chapters: the type of model of judicial governance, and the level of de jure independence of such a model. However, I do this by taking into account at least one additional factor: the level of economic development of the countries in my sample, which according to modernization theory should be a major explanatory variable of democratic quality.

In order to carry out my analysis, I used statistics, and in particular robust regressions. These allowed the assessment of the net association between the quality of democracy and the existence of certain institutional arrangements (such as a judicial council) in the countries of the sample. The analyses does so while ‘discounting’ the impact of my control variable, the GDP per capita of each country, which I used to measure economic development. The objective is to understand the correlation between judicial governance and democratic quality once the impact of economic development is controlled for.

Robust regressions are a very useful tool to understand net associations. However, like any methodological tool they also have some limitations. The most important for the purposes of this research is that, in order to introduce many explanatory variables in the model (to ‘control’ for many variables), it is a good practice to have a high number of cases in the sample. This was not the case with the database that I am using, which included fewer than 50 cases. For that reason, I took a cautious approach and never included simultaneously more than two independent variables in the models.

This, in turn, meant that I had to seek other strategies of research design in order to understand how other factors might have a role in the relationship between judicial governance and democracy that I am studying here. In particular, different operationalizations of the phenomena permitted an understanding of different aspects of the object of study while still using robust regressions. In this regard, I ran different analyses for judicial councils in general, courts services in general, formally independent judicial councils specifically, and judicial councils a majority of whose members are politically appointed. For each of these, I ran a different robust regression, which allowed me to understand how different designs of the models of judicial governance relate to democracy when economic development is accounted for. My expectation was that the analyses in this chapter will point at the negative association between judicial councils and democratic quality disappearing when economic development is controlled for.

All the analyses carried out in this chapter are robust regressions.¹⁸ In all cases, I test the impact of different approaches to judicial governance on democratic quality. In all cases, I do this while controlling for the GDP per capita of the country in 2020.¹⁹ My dependent variables are always three different proxies to the quality of democracy in a country: the Liberal Democracy Index, the Electoral Democracy Index, and the Equality Before the Law and Individual Liberties Index from the V-Dem project (version 11).

Table 3.2 Judicial councils and quality of democracy (robust regressions)

Table 3.3 Courts services and quality of democracy (robust regressions)

Table 3.4 Independent councils and quality of democracy (robust regressions)

Table 3.5 Politically dependent councils and quality of democracy (robust regressions)

I have opted for using these three different proxies in order to guarantee the reliability of the analyses. Each of these indexes has advantages and disadvantages, which are explained below.

• The Liberal Democracy Index is a very comprehensive proxy to democratic quality, which takes into account not only aspects related to the electoral dynamics of the countries but also checks on power and the rule of law. However, this index is constructed taking into account, inter alia, aspects such as judicial independence in each country. As a result, the main disadvantage of this index is the risk of an endogenous relationship between the independent and the dependent variable.

• To account for the problem presented above, I replicated all my analyses using the Electoral Democracy Index, which is less complete—as it is focused on electoral aspects—but excludes the possibility of a problem of endogeneity in the analyses. This index measures aspects such as electoral competition, freedom for political and civil society organizations, fairness of elections, existence of freedom of expression, and an independent media.²⁰

• Finally, to reinforce the analyses, I also used the Equality before the Law and Individual Freedoms Index. Such index does not capture the dynamics of electoral competition in the countries of the sample. It also does not include indicators of judicial independence (only access to justice for men and women), removing also the risk of endogeneity that might impact the Liberal Democracy Index. It is thus a much less complete proxy to democratic quality, and so it should be considered just as an additional test for the analyses carried out.

While none of the three indexes is perfect, together the three of them can offer some insights into the relationship between judicial governance and democracy in the sample. In the next section, the analyses are presented.

3.5 Judicial Governance and Democratic Quality: A Statistical Approach

Table 3.2 shows the correlation between the judicial council model and the different indicators of democratic quality, when controlling for the GDP of the countries. As can be seen, in all cases the models (as per the R Squared) can explain between 30 and 42 per cent of the variation in the phenomena explored. The GDP of the country was very strongly correlated with democratic quality. As predicted by modernization theory, GDP is strongly correlated to democratic quality in all three indicators. More importantly, the effect of having a judicial council on the quality of democracy is not statistically significant.

In Chap. 1, I discussed evidence suggesting that countries with a judicial council have a worse level of democratic quality. Table 3.2 strongly qualifies that information. It suggests that once we ‘discount’ the effect of economic development, there is no evidence to support the idea that judicial councils are detrimental to democratic quality. The finding is thus relevant, as it can help discard  a potential powerful reason to reject the implementation of these institutions.

Table 3.3 complements this information by replicating the analyses for the main competing model: courts service institutions. The analyses confirmed the strong association between the GDP and the levels of democratic quality for all proxies. With regards to the courts service model, again, a substantively and statistically insignificant association was obtained.

Earlier in this book it was shown that judicial councils were associated with lower levels of democratic quality. But generally speaking, the analyses in Tables 3.2 and 3.3 suggest that there is no evidence to think that the judicial council model is bad for democratic quality, or to think that the courts service is good for it: once GDP is controlled for, the correlations between these models of judicial governance and democracy are insignificant.

Judicial councils, thus, do not seem to be a bad arrangement for democratic political systems. However, as I explained in Chap. 2, we can divide these institutions for judicial governance into two main types, depending on whether political actors have a protagonist role in the appointment of their members or not. In Tables 3.4 and 3.5, I analyse separately the correlation with democratic quality of formally independent and dependent judicial councils. I keep the GDP per capita as my control variable, because I believe that the background socio-economic conditions of each country are still relevant to these analyses.

As shown in Table 3.4, the association between judicial councils and democratic quality continues to be insignificant even when we take into account only those judicial councils for which at least half of their members are not appointed by political actors. Furthermore, something similar happens with those judicial councils for which more than half of their members are appointed by political actors (Table 3.5).

The findings in the analyses presented in Tables 3.2, 3.3, 3.4, and 3.5 are thus mixed news for judicial councils. The worst possible scenario for these institutions might have been evidence supporting the correlations found earlier in this book, according to which judicial councils were negatively correlated with democratic quality. This did not happen, and no evidence was found in such direction. But judicial councils were not positively correlated to democratic quality either. Not even when only taking into account those judicial councils that were more politically independent. Instead, at equal levels of economic development (measured by the GDP per capita), no significant correlations were found between any model of judicial governance and any index of democratic quality.

3.6 Conclusion

The associations presented in Chaps. 1 and 2 were somehow surprising. Judicial councils have become a ‘soft' standard in Europe, but countries that have implemented these institutions fare worse in terms of democratic quality. What if, then, judicial councils were weakening after all the democracies that they were supposed to strengthen?

This chapter suggests that there is no reason for concern. It is a fact that European countries with a judicial council have, on average, democracies of worse quality. But judicial councils are not responsible for this. The interpretation of the analyses in this chapter suggests that such association is spurious, and that it can be better understood if we take into account extra-judicial factors such as the level of economic development of the countries. In modernization theory, economic development is associated with democratization. And in the countries of the sample, those with a judicial council happened to have, on average, lower levels of economic development. Said in other terms, modernization theory seems to explain the different levels of democratic quality that earlier were found as correlating with variation in models of judicial governance. And if the levels of economic development were the same for all countries—that is, ceteris paribus—then having a judicial council would not be associated with a lower level of democratic quality, nor to a higher one.

A final note in this chapter has to do with the tense relationship between de jure and de facto institutional independence. Some literature has recently analysed this relationship. For instance, Tsereteli showed how practices such as judicial recruitment can undermine de jure rules formally protecting judicial independence.²¹ In their work, Gutmann and Voigt found a negative association between de jure and de facto judicial independence, which seemed to be explained by cultural factors such as individualism and trust.²² The authors suggest that it will be difficult to increase de facto judicial independence through de jure reforms. Something similar occurs with the relationship between de jure regulations of judicial governance and democratic quality, as evidenced in this chapter. Individually considered, the former does not seem to have significant general association to the latter. This being said, the picture is more complicated when we look at specific cases and the combination of de jure regulations of judicial governance with other factors. The next chapter analyses this in detail.