4.1 Introduction

Chapter 3 of this book sought regression techniques to try to shed light on the connection between judicial governance arrangements and democratic quality. The analysis did not point to any significant evidence that differences in models of judicial governance were correlated with democratic quality. However, given the methodological tools used, the analysis was based on two epistemological assumptions. First, the analysis aimed at finding out the general association between judicial governance on democratic quality; but this might have hidden the role played by judicial governance in specific cases. Second, the analyses in the previous chapter tried to isolate the effect of the association between judicial governance and democratic quality from the effect of another variable—the GDP of the countries—instead of understanding how it interacts with a range of other factors.

To account for these two caveats and to complement the analyses carried out so far, this chapter uses a different technique: Qualitative Comparative Analysis (QCA). More particularly, the aim of this chapter is to try to understand the relationship of a specific institution of judicial governance—the model of judicial councils with de jure apolitical forms of appointment of members—with democratic quality. I focus on this model of judicial governance for two reasons. First, because it is the most frequent model in my sample of cases. Second, because it has been frequently deemed as a good standard of judicial governance, and thus a large part of the debate on this topic gravitates around this model.

In this chapter, I will try to find out whether the presence of the model of independent judicial councils is a logically necessary or sufficient condition for different levels of democratic quality. I will do so by including in my analysis other economic, political, and institutional conditions that might be relevant for the outcome.

The analyses do not contradict the findings of Chap. 3. On the contrary, as I will show, both regression techniques and QCA analyses can shed light on different but complementary aspects of the phenomenon explored.

4.2 Modernization, New Institutionalism, and the Role of Judiciaries in Democratic Quality. Theory and Configurational Hypotheses

Earlier in this book, I showed that countries with judicial councils do not perform particularly well when it comes to democratic quality. However, in Chap. 3, and using modernization theory, I hypothesized that this phenomenon might be masking an omitted variable bias: different levels of economic development are strongly correlated with both having certain models of judicial governance and also with having certain levels of democratic quality. The reason why countries with judicial councils had lower levels of democratic quality was, thus, not their model of judicial governance. It was, instead, that they tended to have a lower level of economic development.

The analyses in Chap. 3, however, presented an incomplete landscape, as they did not account for other factors beyond judicial governance and GDP. This chapter presents an analysis that includes a wider range of conditions, including EU membership and other judicial-institutional factors. Drawing on new institutionalist theory and modernization approaches, this section theorizes the relationship between these factors and democratic quality.

Political and economic background factors favouring democratic quality

In this chapter, I analyse the role of two background factors that can play a positive role in fostering democratic quality: economic development and EU membership.

Regarding economic development, much has been already said in Chap. 3 about the way in which modernization theory explains its relationship with democracy. A body of literature, starting with the work of Lipset, has shown significant evidence that economic development has a positive impact on democratization.Footnote 1 Inglehart suggests that the causal mechanism is linked to the way in which economic development fosters the creation of a middle class, as well as value and behavioural change, with an increasing emphasis on self-expression values.Footnote 2 The evidence presented in the previous chapter seemed to back this idea for the countries of the sample. In my QCA analyses in this chapter, thus, economic development is also included in the analyses.

In addition, in this chapter, I also consider another background condition of a political character: EU membership. This condition could be relevant for democratic quality for two reasons. First, because accession to the EU involves the requirement to meet certain democratic standards in the first place. Evidence in the field suggests that a realistic perspective of accession does indeed have a positive impact on democratic standards of candidate countries.Footnote 3 Second, it could be thought that membership of the EU should theoretically put constraints on authoritarian leaders of member states. This second argument is, however, weaker, given the evidence in the literature about the inability of the EU to prevent rule of law backsliding in countries such as Poland or Hungary,Footnote 4 although it can be hypothesized that the total absence of EU membership would further free illiberal executives from constraints on their agendas.

New institutionalism and the role of institutions

Institutional explanations are a complement to the economic and political conditions presented above. In this chapter, I test three conditions related to institutions: the existence of an judicial council with a de jure apolitical form of appointment of its members, the level of judicial independence of the higher courts of the system, and the level of judicial corruption. These three questions shape institutions related to the judiciary in each country and can be relevant to understand their levels of democratic quality.

Literature in Judicial Politics approaches the relationship between judicial independence and democracy in different ways. A good part of the literature has shown evidence that democracy, and in particular party competition, leads to higher judicial independence.Footnote 5 Popova, however, provides a caveat in her very interesting explanation of judicial independence in emerging democracies. Her strategic pressure theory posited that ‘in emerging democracies political competition hinders rather than promotes judicial independence’.Footnote 6 At the same time, another branch of literature has focused on the opposite phenomenon: how judicial independence matters for democratic quality. This idea is backed by the recent empirical research by Laebens and Lührmann,Footnote 7 which shows that independent judiciaries can aid in halting democratic erosion. Similarly, Gible and Randazzo found evidence that independent judiciaries played a positive role in preventing authoritarian change, albeit their work suggests that newly formed courts were more likely to suffer regime collapses.Footnote 8

Democracy involves the existence of regular elections in which incumbents can be ousted. Institutions that govern the judicial branch or that are part of them can play a role in the quality of electoral democracy, and new institutionalism can explain why. According to new institutionalism, institutions explain the behaviour of political actors. In particular, rational choice new institutionalism argues that institutions pose constraints and incentives to political actors: when they seek to achieve their goals, they will take into account those incentives and constraints and modulate their behaviour accordingly.Footnote 9 Institutions are part of that system of incentives and constraints. In particular, the existence of an independent, functional judiciary can prevent political actors from undermining the quality of democracy in order to fraudulently achieve or maintain power. A more sociological approach to new institutionalism can also help explain the relationship of the institutions that govern or that are part of the judicial branch with democratic quality. As Larkins puts it, ‘Once state actors learn not to transgress the legal bounds of the system to attain political goals, a constitutional culture will be attained, and lead to the consolidation of democratic rule. The courts can have a significant role in establishing this culture of legality if they are given adequate latitude to enact neutral justice, regulate the legality of government behaviour, and mandate important legal and constitutional values’.Footnote 10

At a very basic level, a functional judicial branch can sanction a political actor willing to achieve or remain in power illegitimately. In anticipating such sanctions, political actors will abide by the rules of the game. However, democratic deconsolidation can happen more subtly, by tilting the electoral playing-field in favour of a political faction—usually the one in power. An independent, functional court system can prevent politicians from subtly manipulating the rules of party competition in their favour.

Thus, institutions matter. And judiciaries are an important part of the institutional framework in which parties and politicians operate. As said above, in this chapter, I analyse three important elements of conditions related to the court system:

  1. a.

    First, the level of (high) court independence, following literature suggesting that independent courts contribute to building resilient democracies, as they play a positive role in policing the democratic compromise.Footnote 11 In fact, such findings are in line with the telos at the core of the design of independent judiciaries in modern constitutionalism that points directly towards the avoidance of tyranny.Footnote 12

  2. b.

    I also analyse the level of judicial corruption in each country, as more corrupt courts can be compromised and thus less able to constraint political actors. This is the case, for instance, as corruption can be a way through which political actors can control courts, thus preventing them from playing their expected role in policing the democratic compromise which, in turn, can disincentivize political actors from abiding by the rules of the democratic game.

  3. c.

    Finally, I take into account the existence of a judicial council that is de jure independent from political actorsFootnote 13 in a given country, as this arrangement has often been seen as a good practice of judicial governance that can protect democratic quality. Judicial councils that are independent from political actors are expected to protect judiciaries from political control and guarantee judicial independence.

Given the way these three conditions are measured (see the methods section in this chapter), the first two of them are closer to a de facto understanding of judicial independence and corruption, while for judicial councils I seek a de jure measurement. This is valuable, as the QCA models in this chapter will allow for analysis of how these different types of explanatory conditions interact in specific cases.

Hypotheses

With this background, this chapter tests two hypotheses about the relationship between the above-mentioned factors and judicial governance. Since the focus of the analyses is on the model of independent judicial councils, my hypotheses are focused on this condition.

A first hypothesis (H1) posits that the model of independent judicial councils is part of at least one configuration of conditions that is logically sufficient to the outcome ‘high democratic quality’. This is in line with the expectations about the positive role of this institution that has become a ‘soft’ standard in Europe. Note that the hypothesis does not suggest that this institution should be, alone, logically sufficient to achieve high levels of democratic quality. On the contrary, the expectation is one focused on logical complexity: independent judicial councils, in this hypothesis, are part of a larger logical configuration that includes other factors presented in this chapter.

The second hypothesis (H2) is the reverse of the first. It posits that the absence of an independent judicial council is necessary to the outcome ‘low democratic quality’. This is for reasons similar to those behind the first hypothesis: if this institution is conducive to better levels of democratic quality, in countries with low democratic quality, we should find the absence of this model of judicial governance.

4.3 Methods

In this chapter, I take a different approach to understand the relationship between judicial governance and democratic quality, one in which the relationship between the conditions and the outcome is understood in terms of logical necessity and sufficiency. The analyses in this chapter are based on set theory, in which phenomena are operationalized as belonging or not to different sets. To do so, I used Qualitative Comparative Analysis (QCA).Footnote 14 In particular, I use the ‘fuzzy set’ variant of QCA, which allows cases to have gradations of their set membership.Footnote 15 This is because many of the conditions used were not dichotomous in nature, but rather membership of them was a matter of degree. Table 4.1 shows how the different explanatory conditions are operationalized (‘calibrated’) for these set-theoretical analyses.

Table 4.1 Calibration of conditions for set-theoretical analyses
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As can be seen, the outcome selected for the analyses was the V-Dem Electoral Democracy Index. As explained earlier, this index measures ‘the core value of making rulers responsive to citizens, achieved through electoral competition for the electorate’s approval under circumstances when suffrage is extensive; political and civil society organizations can operate freely; elections are clean and not marred by fraud or systematic irregularities; and elections affect the composition of the chief executive of the country. In between elections, there is freedom of expression and an independent media capable of presenting alternative views on matters of political relevance’.Footnote 20 Thus, this index does not include elements related to the rule of law or judicial institutions, and includes a rather minimalistic definition of democracy: one that is focused on the holding of regular, free, and fair elections. Such a definition of electoral democracy seems very close to the one recently used by Przeworski, and which the author conceptualizes as ‘a political arrangement in which people select governments through elections and have a reasonable possibility of removing the incumbent governments they do not like’.Footnote 21

From a research design perspective, the Electoral Democracy Index has an important advantage, as it minimizes the problem of endogeneity that could result from using as an outcome an index that included the role of courts in a democracy. From a theoretical perspective, using the Electoral Democracy Index also has advantages. In their recent book on abusive constitutional borrowing, Dixon and Landau also use a minimalistic definition of democracy ‘centered around the idea that democracy entails a commitment to regular, free and fair elections, conducted on the basis of universal adult suffrage and competition between two and more parties’.Footnote 22 They argue that the main advantage of using such a definition for research purposes is its relative consensus: ‘it is an idea of democracy that almost all political theorists can endorse, regardless of their particular, potentially more expansive understanding of democracy.Footnote 23 It is also a definition of democracy that draws on shared understandings of democracy at the transnational level—such as those incorporated in the Copenhagen criteria for accession to the European Union—and one that can be found in the majority of constitutional democracies around the world'.Footnote 24 It is worth emphasizing, though, that the use of this definition of democracy in this chapter is not the result of a normative adhesion to a minimalist concept of democracy in general. As stated above, the use of such minimalistic or thin definition of democracy to operationalize my outcome is the result of its adequacy at the theoretical and research design level for this particular piece of work.

QCA analyses will find out whether the relationship between an explanatory condition—or a combination of them—and an outcome is one of logical necessity, sufficiency, or neither. By logical necessity and sufficiency I simply mean what follows. A condition is logically necessary for an outcome when it is always present when the outcome occurs, although its presence does not guarantee occurrence.Footnote 25 A condition (or combination of conditions) is sufficient for an outcome when such an outcome is present every time the condition is observed, even if the outcome can also be present in instances in which the condition is not observed.Footnote 26

The Electoral Democracy Index ranges from 0 to 1. However, when looking at the distribution of cases, three qualitatively different groups emerges: a group with high electoral democracy scores (above 0.65), a group with very low electoral democracy scores (below 0.4), and a group with intermediate scores. To account for this, three crisp outcomes were created.

The explanatory conditions were selected so that the models could shed some light on the relationship between wider political and socio-economic factors and factors related to judicial design. These included crisp and fuzzy conditions. GDP per capita was calibrated as a fuzzy condition with a cross-over point of 30,000, in order to have a balanced distribution within the sample, with full membership at 50,000 and full non-membership at 10,000. In the condition, ‘high court independence’ cases range between −2.8 and 3.4; to acknowledge for this, the cross-over point was selected at −0.1, with full inclusion at 3 and full exclusion at −3. Finally, judicial corruption was measured in an index ranging from 0 (highest levels of corruption) to 1 (lowest levels of corruption); the cross-over point was set at 0.51 (to disambiguate Serbia, whose score was 0.5), with full inclusion set at 0.8 and full exclusion at 0.3. It is worth noting that the source used to account for judicial corruption had no information for Azerbaijan, Montenegro, Armenia, Iceland, and Switzerland, so these cases were coded as missing for the analyses.Footnote 27 The rest of the conditions were crisp: EU membership (with the UK coded as a non-Member State), and presence of an independent judicial council (following the information of the Appendix).

Finally, it is worth making clear at this point that this chapter does not aim to provide a comprehensive causal model to explain the research outcome: the quality of electoral democracy. Instead, the aim of this chapter is much more modest: simply to test some conjectures which involve the role of judicial governance. More precisely, my aim is simply to falsify my configurational hypotheses in the context of my models, that is, I want to check whether there is evidence to reject my hypotheses. As it is always the case in the social sciences, the evidence provided in this chapter is not final. The ideas of ‘necessity’ and ‘sufficiency’ that connect the conditions to the outcome are understood simply in a logical sense and in the context of the models, in line with the explanation of these concepts provided earlier, so I avoid strong causal statements. Finally, in order to understand the phenomena explored, more evidence will be necessary in future research.

4.4 Analysis of Necessary Conditions

The analysis of necessary conditions explains which conditions are always present (or absent) when the outcome of interest occurs, even if the condition might also occur without the outcome occurring. Literature in the field suggests that for a condition to be considered as logically necessary for an outcome it must have a consistency of at least 0.9.Footnote 28

Table 4.2 shows the analysis of necessary conditions for the different values of the outcome—high, intermediate, and low electoral democracy quality. As can be seen, for low quality of electoral democracy, there are two conditions that are technically necessary. One of them is the absence of independent judicial councils, meaning that all instances of low quality of electoral democracy were in countries without an independent judicial council. Examples of countries with low quality of electoral democracy in the sample include Azerbaijan, Russia, and Kazakhstan, all with hybrid or sui generis models. It also includes Belarus, in which the executive remains in control of judicial governance; and Turkey, which has a judicial council classified as not politically independent. The same occurs with EU membership: all of these instances of low quality of electoral democracy are also instances of countries outside the EU. Note, however, that both necessary conditions have a low coverage, which makes the relationship less meaningful.

Table 4.2 Analyses of necessary conditions
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For high quality of electoral democracy, the data is also interesting, especially with regards to two conditions: high level of high court independence (consistency 0.88) and absence of judicial corruption (consistency 0.96). High court independence cannot be technically considered as a necessary condition, but I believe that its consistency score is so close to the 0.9 threshold that it makes it equally substantively meaningful. The interpretation of these results points to these two conditions being present every time that a country has a high level of electoral democracy quality. This is relevant also in relation to the independent judicial council model, which is far from the 0.9 consistency threshold for this outcome. This suggests that while an independent, non-corrupt judiciary is necessary for the outcome ‘high quality of electoral democracy’, such an independent and non-corrupt judiciary does not need to be achieved through the implementation of the model of independent judicial councils. A good example of this is Spain. This country has a judicial council that has not been classified as politically independent: as previously explained, the members of the Spanish judicial council (CGPJ) are appointed by the Parliament, although following consensual cross-party procedures. This parliamentary role in the appointments was compatible with high levels of high court independence, low levels of judicial corruption, and a high quality of electoral democracy.

Finally, it is worth mentioning that GDP does not reach the 0.9 threshold for any of the outcomes, despite the strong correlation with democratic quality that this variable exhibited in Chap. 3. This suggests that, even if economic development is positively correlated to democratic quality, high levels of electoral democracy quality occurred in some instances even in the absence of high levels of GDP. The analysis also suggests that a low GDP is not logically necessary in order to exhibit a low quality of electoral democracy.

4.5 Analyses of Sufficient Conditions

The analysis of sufficiency shows which conditions—or combinations of them—are sufficient for the outcome to occur, meaning that every time that the condition—or combination of conditions—occur, the outcome also can be observed. Table 4.3 presents the analysis of sufficient conditions for the presence of high electoral democracy quality. The model has a moderate coverage level (0.683) but a very high consistency (0.929). This means that what the paths in the model cover is to a very large extent the outcome of interest, even if the phenomena explored—high quality of electoral democracy—is not fully explained by the model.

Table 4.3 Analysis of sufficient conditions for the presence of high electoral democracy quality
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The model consists of a combination of high GDP, EU membership, lack of judicial corruption, and high court independence. These four conditions, combined, are logically sufficient to the presence of the outcome. They point at a combination of economic-political background conditions (GDP and EU membership) together with a solid institutional judicial architecture. Note, however, that in this path there is a condition missing: the condition referred to independent judicial councils is irrelevant to this path. This means that the presence or absence of this model of judicial governance is logically irrelevant for the achievement of the outcome. That is not to say that judicial conditions are not part of the logically sufficient path to a high quality of electoral democracy: as already noted, together with high GDP and EU membership, the path requires the presence of an independent, non-corrupt judiciary. But the model shows that this type of judiciary can be achieved both with an independent judicial council (as in Italy and France) or without it (for instance, in Denmark or Czechia). Interestingly, this finding seems to be in line with literature in the field that also suggests that high levels of judicial empowerment can be achieved in the absence of the judicial council model.Footnote 29

The analysis for intermediate levels of democratic quality is presented in Table 4.4. The model has a more modest coverage (0.453) but a perfect consistency (1) score. It shows one logically sufficient path to intermediate levels of electoral democracy quality.

Table 4.4 Analysis of sufficient conditions for intermediate electoral democracy quality
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The path shows a combination of absence of the political (EU membership) and economic (GDP) background conditions together with the presence of a solid judicial-institutional architecture. The latter consists of a combination of high court independence and judicial councils which are, at least de jure, politically independent. The model of an independent judicial council, which was logically irrelevant to high quality of electoral democracy, is not—in this model—logically irrelevant to moderate levels of the outcome. Note that there is an additional difference between this path and the model to high quality of electoral democracy: the background conditions GDP and EU membership, which were present for the logically sufficient path to high democratic quality (Table 4.3), are, as already indicated, absent in this model (Table 4.4).

Table 4.5 presents the analysis of sufficient conditions for cases with a low quality of electoral democracy. Again, the model presents a moderate coverage (0.71) and a relatively high consistency (0.96). The model, however, presents a very interesting path, consisting in the combined absence of high GDP, of EU membership, and of an independent judicial council. The model, thus, shows that the absence of independent judicial councils is part of the logically sufficient configurations for the outcome. This is consistent with the findings of the analysis of necessary conditions.

Table 4.5 Analysis of sufficient conditions for low electoral democracy quality
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A comparative look at Tables 4.4 and 4.5 reveals again some interesting patterns that can be illustrated with reference to specific cases. Both the cases covered by Table 4.4 and Table 4.5 are cases with lower levels of GDP and absence of EU membership. But what differentiates them was the institutional architecture of the judicial branch. While countries such as Moldova have good levels of high court independence and an independent judicial council, countries including Russia and Turkey are marked by the lack of such independent judicial council. These latter countries exhibit very poor levels of quality of electoral democracy, while countries with a good institutional architecture of the judicial branch display at least moderate levels of such outcome.

4.6 Conclusion

This chapter has shed some new light on the relationship between judicial governance and democracy, although this time from a configurational, case-oriented perspective. The findings, from the perspective of judicial governance, point at two main takeaways.

First, the model of independent judicial councils seems to be logically irrelevant for cases of high electoral democracy quality, and thus, my hypothesis 1 did not find support. But this model of judicial governance was not logically irrelevant, in the context of the models, for intermediate levels (for which it was present) or low levels of the outcome (for which it was absent). Additionally, the absence of independent judicial councils was logically necessary for the presence of low quality of electoral democracy, thus supporting empirically hypothesis 2, even if the coverage of the necessary condition was low. The evidence, thus, does not allow us to discard the suggestion that this model of judicial governance might have after all a certain relationship to democratic quality, even if such relationship could be more nuanced than what a statistical correlation would involve, and even if its relevance is limited to some subsets of the cases. The judicial council model has been found to have negative effects on a number of fronts. For instance, it has been suggested that it can lead to reduced judicial accountability and increased corporatism.Footnote 30 My findings do not refute that strand of literature, as they focus on a different object of study. But such findings do add complexity to the picture, by showing an interesting aspect of the relationship between independent judicial councils and democratic quality.

Second, the models point at other conditions related to the justice system as logically relevant to the outcome. Take the example of the level of high court independence or absence of judicial corruption. These conditions often featur in a prominent place in the models of logical sufficiency. For high levels of electoral democracy quality, in particular, a high level of high court independence and a low level of judicial corruption was a part of the configuration, while the existence or not of an independent judicial council was irrelevant. This finding is also backed to a large extent by the analysis of necessary conditions.

Finally, on a methodological note, this chapter has shown the usefulness of complementing statistical analyses with configurational ones. Each type of method can shed light on different aspects of the phenomena explored and, in this case, their complementary use allows for a very interesting understanding of the connection between judicial governance and democracy.