Abstract
Judicial independence is not only a necessary condition for the impartiality of judges, it can also endanger it: judges that are independent could have incentives to remain uninformed, become lazy or even corrupt. It is therefore often argued that judicial independence and judicial accountability are competing ends. In this paper, it is hypothesized that they can be complementary means towards achieving impartiality and, in turn, the rule of law. It is further argued that judicial accountability can increase per capita income through various channels one of which is the reduction of corruption. First tests concerning the economic effects of JA are carried out and on the basis of 75 countries, these proxies are highly significant for explaining differences in per capita income drawing both on OLS as well as TSLS.
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Notes
See also Ferejohn and Kramer (2002) who argue that JA and JI are instrumental to reach the goal “well-functioning judiciary”. As this term is wide open to interpretation, we prefer to say that they are both means to the end of the rule of law, which is, however, also a disputed term. There is a huge discussion whether the rule of law can be realized relying exclusively on formal procedures or whether some substantive “minimum standards” have to be satisfied. We do not intend to contribute to that discussion, yet our argument holds even if the weaker—purely formal—delineation is used.
An altogether different situation is the one where the number of judges is reduced and some judges have to leave before the end of their term.
Requiring an extended proof can also be interpreted as an aspect of JI: it makes it more difficult for members of the other branches to put pressure on judges to rely on aspects being of minor or no importance for the case at hand. This observation strengthens our claim that JI and JA do not need to be conflicting.
Following the saying “Justice delayed is justice denied”, it could be argued that the timeliness of decisions (and not just the responsible use of time) should be used as a further criterion. We refrain from doing so here because judicial decision-making does take some time. If one wanted to minimize delays until final decisions were reached, a logical first step would be to get rid off the appeals option which shows that timeliness and accountability can be partially conflicting.
Volcansek (1996, 121) reports that Italy has a provision called “recovery liability” that enables the state to recover some of the damages that it incurred as a consequence of an offending judge.
On the other hand, the creation and enforcement of judicial self-control mechanisms is still a public good: once created, all judges benefit from it. If creation and implementation is costly, every judge would hope to enjoy the fruits of the good without having to devote resources to its creation. Stressing the positive consequences of judicial self-control and assuming that these consequences were sufficient to believe in their creation would, of course, be committing the functionalist fallacy. The attempt to make judges judges of other judges contains some dangers: this competence could be misused to get rid of unpopular colleagues; the anticipation of this possibility creates incentives to create informal networks within the judiciary that do not necessarily improve impartiality. The possibility that judges aim to be popular with their colleagues instead of implementing the law cannot be excluded either. On the other hand, informal norms to protect colleagues even though they are, e.g., clearly corrupt, is a real danger.
An anonymous referee rightly pointed out that investment is likely to be endogenous to the realized level of JA. One option to deal with this would be to instrument investment, another to use it as left hand side variable. Implementation of both options presupposes the explicit recognition of other determinants of investment, which is why we refrain from doing it here. If anything, the simultaneous inclusion of both investment and JA should bias the estimates against the hypothesis pursued here, which re-enforces the results (partial correlations between investment and JA I and JA II are 0.584 and −0.327, respectively).
The loss of significance is not due to the simultaneous inclusion of the other variables. If all others except government effectiveness are simultaneously regressed the coefficient (t-stat) for JA I are 0.084 (4.43) and −1.019 (3.52) for JA II.
Robustness of the JA proxies was also tested by including other variables such as the security of property rights as reported by the Wall Street Journal/Heritage Foundation Indicators. The JA proxies always remain highly significant (results not reported here but available from author upon request). We further tried to control for multicollinearity by adding interaction effects between JA and JI. It turned out that the JA proxies always kept their level of significance whereas the interaction term did not reach conventional levels of significance.
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Acknowledgements
The author thanks Lorenz Blume and Tobias Göthel for excellent research assistance, Oona Hathaway for making her data available, Anne van Aaken for numerous discussions on the topic and an anonymous referee for helpful suggestions. The paper was presented at the 5th Corsica Workshop in Law & Economics, the PPE-programmes of both George Mason and Duke University as well as at the annual meeting of the Public Choice Society 2005 in New Orleans and at the Law and Economics workshops of the Universities of Hamburg and Nancy. The author thanks those participants who made him improve the paper, in particular Roger Congleton and Samuel Ferey.
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Voigt, S. The economic effects of judicial accountability: cross-country evidence. Eur J Law Econ 25, 95–123 (2008). https://doi.org/10.1007/s10657-007-9035-5
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DOI: https://doi.org/10.1007/s10657-007-9035-5
Keywords
- Judicial independence
- Judicial accountability
- Rule of law
- Economic growth
- Corruption
- Constitutional political economy