Judicial Independence, Independent Judges And Judicial Power A Puzzle.docx

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Judicial independence, independent judges and judicial power: a puzzle?* Carlo Guarnieri Speech delivered at the seminar on Institutional and Socio-Political Determinants of Judicial Independence (in Latin America) (Utrecht December 1st, 2015) Tentative Draft

Today, judicial independence (JI) seems to have become a universally recommended recipe for good government and, more precisely, for establishing the rule of law (RoL), in turn universally considered a goal to be achieved in order to support economic and social development. Several international and supranational actors have played an important role in the process: the World Bank, the OCSE, and of course the EU and the Council of Europe.2 Recently, in 2010, the Council of Europe has recommended one of the most sweeping - but increasingly popular - definition of JI: according to which . .in their decision making judges should be independent and impartial and able to act without any restriction, improper influence, pressure, threat or interference, direct or indirect, from any authority, including authorities internal to the judiciary.". (R 2010, n. 12 at 22, bold characters added)

1. The meaning of judicial independence However, notwithstanding these bold statements, the concrete meaning of judicial independence it not always clear. In fact, there are several, different definitions of JI. Let us consider them briefly. For instance, de jure JI usually refers to all those legal arrangements aiming at protecting judges from illicit interferences when performing their institutional function, i.e. adjudicating. Nevertheless, these arrangements remain often only on paper. Therefore, another concept is in need de facto JI refers to a situation in which those guarantees are implemented and become effective. However, institutional guarantees of independence, even when implemented, do not guarantee per se that judges will really behave 2

see also, if available, the recently issued 18th opinion of the CCJE: https://wcd.coe.int/ViewDoc.jsp?Ref=CCIE(2015)4&Language=lanEnglish&Ver=original&BackColo rInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864

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in a truly independent, i.e. impartial way (on this point more later), when adjudicating. So, a further distinction must be introduced between institutional JI and behavioral JI - or judicial autonomy or "independence on the bench" (O'Brien 2001). In addition, the discussion is made more complicated when - as it is sometimes the case - JI is likened to judicial power: a situation in which independent judges exert significant authority in a political system, i.e. they are able to adjudicate a vast array of politically significant cases (i.e. cases whose outcome can affect the political process). It is necessary to take into account all these differences when analyzing the concept JI, since they are not without consequences (Brinks 2005). However, in order to clarify further the meaning of JI it is necessary to look at its rationale (Russell 2001).

2. The rationale of judicial independence: why JI? In fact, so far we have not explained why judges should be independent. Which are the reasons behind the request than judges be protected from external influences? a. The most convincing answer is, without doubt, that provided for by Martin Shapiro (1981),3 who points at the basic logic of the adjudicative triad. According to this view, the most important goal of judicial independence is to support judicial impartiality in adjudication, since a judge depending on one of the parties to the case cannot be - and cannot seem to be - impartial. An impartial judge plays an important role in building consensus by the parties toward the judicial procedure and its outcome - the decision by the judge - in this way inducing acceptance and therefore assuring a more effective dispute resolution. The parties to the disputes will be more likely to accept - and obey - a decision made by a judge they believe to be impartial. b. Judicial impartiality is a crucial element in the process of adjudication. In fact, it is supported also by the fact that the judge, when adjudicating, must follow rules: procedural and substantive. Procedural rules granting the parties an effective participation in the proceeding can better absorb their possible delusion for a

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And T. Eckhoff (1965).

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negative decision. Substantive rules constrain judicial discretion and shift responsibility of the decision to those having enacted the rule: i.e. the political system or the society. In other words, by being based on recognized rules the decision can be presented as the result not of the arbitrary will of the judge but of the whole society. c. As we are going to see later on, in cases in which a party to the dispute represents a branch of the State JI becomes an instrument of constraining political power, i.e. of subjecting that power to the law, and therefore assumes a clear political significance.

3. The points of reference of judicial independence If JI is designed to allow judges to decide impartially disputes, the most immediate reference points of independence are the parties to the case. So, the judge must be protected from undue interference by them and especially by one of them at the expense of the other4. a. First of all, judges must be protected by private parties' pressures and this has been achieved in most Western countries by incorporating judges into the organization of the State, i.e. by putting them under State protection5 . The incorporation of judges into the organization of the State obviously raises the problem of their independence from the State, i.e. from the other branches. b. The protection of judges by State interferences has increasingly become the main goal to pursue.6 A goal that can be achieved thanks to a specific institutional setting, i.e. institutional independence. Guarantees of independence are usually listed in most constitutions (also because of the international pressures we have seen above) and in several influential international documents. Of course, the 4

It has been remarked that not all interference must be banned but only those exerted by one of the parties at her advantage. See Brinks 2005 and also Popova 2012. 5 See also the role of "Big Men" in adjudicating between "small men" in some societies (Marradi 1983). 6 Sometimes, at the expense of the need of assuring that judges be free also from private parties' interference.

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distinction between de jure and de facto is significant here: institutional guarantees must not remain on paper, but be implemented in order to effectively protect judicial impartiality. c. However, if the aim of JI is to assure judicial impartiality in adjudication, are we sure that institutional JI is really inducing impartial behavior on the part of the judges? In fact, institutional JI does not seem per se conducive to judicial impartiality.7 An institutionally independent judge can be corrupted by one of the parties or biased against or in favor of one of the parties. More, she can pursue her particularistic whims under the protection of institutional JI. Of course, there are remedies to corrupt behavior, but pursuing a corrupt judge is always a complex matter, for no other reasons but the need of surmounting her guarantees of independence. Remedies are even more difficult to find in the case of partisan or biased decisions, since often we enter here the realm of opinions: it is not always easy accurately identify what a "partisan" decision really is. d. In fact, institutional JI is often coupled with a process of intense socialization of judges to law. We have already emphasized the legitimizing role of the law. Therefore, is not surprising that judges are trained to follow the law and apply it in an impartial and unbiased way. JI can achieve its end only if it is sustained by an effective process of socialization, supported in turn by a coherent organizational setting: effective selection of judges, adequate training, a continuous process of evaluation of their professional capacities, disciplinary proceedings for ethical breaches... Only if the judicial organization is effective in assuring the attachment of judges to the law, and to the ethical rules related to the judicial function, JI will be also effective in achieving judicial impartiality. Although the law cannot always be crystal clear - problems of legal interpretation are always occurring - the judicial organization - in order to assure judicial impartiality - must assure that judges will stick to consolidated

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A vast amount of research tends to emphasize the weakness of the relationship: see Rios-Figueroa and Staton 2012; Melton and Ginsburg 2014.

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interpretations of what the law is and depart from them only in exceptional circumstances, in this case clearly explaining the reasons of their dissent. e. We have already hinted at the political significance of JI as a tool of constraining political power through law. If law should be effective in controlling the exercise of political power, the control must be exerted by independent judges: it is to them to assess possible violations of the law. Here, the scope - the authority, the jurisdiction - of independent judges matter: the extent to which they can be able to adjudicate the behavior of other State actors. So, in order to assess the political significance of JI - i.e. if JI really plays a role in the political system - the types of cases under judges' jurisdiction have to be considered: can judges decide only cases between private parties or also cases in which a State actor is involved? For instance, in several authoritarian regimes8 courts enjoy some degree of institutional JI but only a limited jurisdiction: all politically significant cases are entrusted to non-independent bodies, a way for the State to limit the political impact of independent judges. f.

Finally, if courts can adjudicate also the rules enacted by the political branches especially those of parliamentary origin, i.e. statutory law - their political significance come out further magnified. The need of protecting their impartiality also in this case implies that the points of reference of independence should be broadened, to include also legislative bodies. In other words, it matters whether judges are only under the law or under the Law or, as Shapiro (2001) has pointed out, whether they are independent at the retail or wholesale. At this point, the implications for judicial power of this enlargement of judicial authority should be clear.

4. Some comments on the risks involved in introducing institutional settings aiming at strengthening JI: the case of some countries of the EU a. In the EU - but also inside the wider area of the Council of Europe - a very popular recipe for strengthening JI is the institution of judicial councils and to

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The paramount case is Francoist Spain.

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entrust to that body all decisions affecting the status of judges. In recent years, the judicial council has become a veritable "best practice" of JI in Europe.9 b. However, there are different types of judicial councils (in Europe), differing for composition and powers. The so-called Southern type enjoy wider prerogatives and tend to represent the whole judicial corps, while the Northern type deals mainly with administrative matters and is often composed also of ministerial i.e. executive - appointees.10 c. At least so far, the Southern type does not seem to have performed particularly well.11 Its main shortcomings seem to be: i. the reduction of hierarchical influence brought about by the wide representation of lower judges in the council can easily become the dismantling of all professional controls;12 ii. if political appointees are represented in the council - which is often the case another channel of political influence is activated, often more penetrating than the traditional ones; iii. the fact that judicial representative in the council are often elected tends to support the growth of factionalism and of some sort of politicking inside the corps, a fact potentially endangering the image of judicial impartiality; iv. the strengthening of JI can often translate itself in an increasing separation of the judiciary from the rest of the legal complex, supporting some sort of judicial "autism". d. Therefore, the case of European judicial councils exemplifies the complexities involved in strengthening JI and the need of a cautious approach, balancing independence with the functional requisites of good adjudication.

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Se, e.g. the 2010 CoE Recommendation, especially art. 36 ff.. Examples of Southern councils are those of Belgium, France, Italy and Portugal, while Denmark, Finland and Sweden represent the Northern type. 11 See Garoupa and Ginsburg 2009, Voigt and El Bialy 2013, Bobek and Kosar 2013; and Guarnieri 2014 12 In fact, traditional hierarchical controls are dismantled and not always substituted by other forms of professional controls or by a more selective recruitment process. 10

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5. Judicial independence and political power Recent decades have seen in most democratic (and also in some non democratic) countries an expansion of judicial guarantees of independence. These guarantees have often been implemented, supporting judicial impartiality also vis-à-vis the political branches. Since this expansion depends to a large extent on political decisions, a question has become especially significant: why the political powers "allow" judges to be/become independent? And in so doing limiting their very power? a. A first answer emphasizes the fact that courts can play an important role in the process of political centralization, by contributing to the enforcement of a national system of legal norms and therefore supporting the State's monopoly of force. The examples are several. In Continental Europe (e.g. in France or in Prussia) royal judges, although dependent on a superior power (the Crown), played an important role in the process of State building by effectively implementing national rules, their effectiveness deriving by being considered to be more impartial, since they were independent from local powers (e.g. feudal lords...). In England, judges in the XVII and especially XVIII century did much of the same: their independence depending in this case on their strong relationship with the growing influential parliament.13 In the US, the nationalizing role of federal courts is well known, the most significant case being their role in implementing federal civil rights legislation.14 In all these instances, judges were independent from local actors but dependent on - or under the influence of - powerful national political actors and national actors supported their independence at least vis-à-vis local powers. What is interesting is that often, on the long run, "local" independence turned "national". b. Rational choice theories addressing the puzzle of JI tend to presuppose political centralization and State monopoly of legitimate force, referring mainly to the case 13

Until the beginnings of the XIX century the House of Lords performed also as a final court of appeal. Even later, and until 2005, the prerogative remained, although its exercise was restricted to the law lords, i.e. the higher judiciary. Above all, the Lord Chancellor assured an institutional connection between the three branches of the State. 14 But also late XIX century legislation protecting private corporations from local interventions. See McCloskey, Shapiro 1995.

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of relatively consolidated/modern political systems.15 Their basic argument is that independent - and powerful - judges can in fact satisfy the interests of political actors.16 For instance, in the context of a political transition, high uncertainty tends to exists about future political developments, while also trust among political actors tend to be low. In this situation, also powerful political actors - rationally believing the likely possibility to be confined in the future in the opposition - can be happy to entrust courts with significant powers, in order to check future majorities. c. However, we must add that political actors will rationally support judicial independence only if they perceive that independent judges will take, at least to some extent, their interests into account. For instance, in England after the Glorious Revolution, once the influence of the King over the judiciary was radically circumscribed thanks to the Act of Settlement, (Whig) parliamentary majorities were generally supportive of JI because they were confident in the attitudes favorable to them - prevailing among judges, as we have seen well represented in Parliament itself.17 As we have seen, European XIX century constitutionalists wanted the relationship between rulers and ruled governed by law in order to protect citizens' freedom (Sartori 1987). Judges - coming from the same social milieus as politicians: the cultivated bourgeoisie - could be trusted to do so, their role being to adjudicate impartially according to the law disputes between citizens and the (monarchical) State. Today, in most democratic countries civil rights groups support JI because they believe - often rightly - that judges will support the implementation of those very rights they cherish. However, it has also been argued (Hirschl 2008) that in fact hegemonic - i.e. socially and economically powerful groups have most to gain from JI and they know very well that and behave consequently (Wittington 2005).

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But see Ostrom and Order without a State? See Ginsburg 2003; Vanberg 2008 and 2015. But see the limits of this reasoning emphasized by Popova. Much of it later. 17 And often, until 1806, also into the cabinet. See Shetreet 1976. 16

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d. As we have seen, institutional JI does not guarantees that judges will necessarily apply the law in an impartial way. Only if an impartial role has been institutionalized through effective socialization,18 can people be somewhat confident in judicial impartiality.19 A similar result can be achieved by a strong connection of the judiciary with the rest of the so-called Legal Complex - the lawyers - whose main task is, obviously, to implement the law. Of course, groups having a privileged access to the judiciary - and to the Legal Complex - will also support JI: this can be often the case of powerful economic interests (Hirschl 2008). In other cases, the judiciary itself is signaling its "availability" to take into account the demands of some groups: for instance, consider the case of groups of "progressive" judges in several countries of Latin Europe (Guarnieri and Pederzoli 2002; Guarnieri 2007). As we are going to see, a strong judicial "constituency" is important in order to support judicial independence and impartiality. e. In all these developments, the significance of judges' appearance in order to elicit support from significant political groups is important. But it is even more important to gain support also from the public at large: in a democracy, popular support can become an important shield for judges when dealing with attempts at harassing them carried out by politicians disappointed with judges' decisions (Vanberg 2008; Staton 2010). This is likely to be the reason why smart judges are always keen to polish their image of impartiality.

6. Some concluding remarks and perspectives (with some possible reference to Latin America?) a. An assessment of the perspectives of implementing an effective setting of JI needs to take into account, first, the - more or less supportive - context in which JI reforms are implemented: e.g. RoL legacies - i.e. the tradition of law obedience by most political 18

And judges know that abuses by them will be sanctioned. See the examples put forward by Kapiszewski (2012, 22-35): Brazil - much more professional vs. Argentina, more politicized. 19

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and social actors - the degree of institutionalization of the judicial system, the related levels of judicial professionalism. .20 It is clear that impartial judges can better flourish in a political setting characterized by high levels of civil order, a tradition of legal certainty - in which all State actors tend to follow the law - a well- functioning judicial system and a good degree of judicial professionalism. The problem is that often these conditions are more or less wanting: the more they are so, the more difficult to implement JI. b. More specifically, to avoid the risk of "electoral democracies" (Popova 2012), that is of transitional countries in which the competition between political factions is so intense and institutions so fragile to push politicians to resort to bribery and violence in order to control courts and employ them against their adversaries: i. the time horizon of politicians should not be too short: the regime should appear to some extent stable. Building powerful political - i.e. party, parliamentary... - institutions is as important as strengthening JI, and maybe even more so (Popova 2012). ii. the range of interests supporting JI should be rather large and judges should try to take those interests into a balanced account: in other words, they must make an effort in building a large JI constituency;21 c. In fact, international pressures - as we have seen, so widespread today - can and do play a role in supporting JI. However, in order to avoid the so-called "Potemkin courts" (Bass and Brinks) - makeshift courts independent only at the surface - and having JI implemented, powerful political interests must have a stake in it. In other words, there should be a "constituency" supporting JI. d. Traditionally, at least in Europe but also in the US, the liberal middle classes have composed largely the constituency of JI. Can we today see also in LA the emergence of a similar situation? I am not enough conversant of LA politics to say 20

See Huntington (1968); and Brinks (2012 and 2013). As the comparison between Brazil - much more pragmatist - and Argentina high courts seems to suggest (Kapiszewski 2012) 21

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something significant on this regard. However, while I see the development and spreading of constitutionalist attitudes - broadly speaking supportive of the RoL in several - maybe most - LA countries, I also see different interpretation of constitutionalism: for instance, at least a "rightist"

neo-liberal - and a "leftist" -neo-constitutionalist interpretation, not to say anything of the "Bolivarian" or "indigenous" versions.22 These different interpretations will work, if some common ground is found. If opposed one to the other, they could fragment and weaken the JI constituency. e. Coming back to consider the judges can play in this process, judicial professionalism must be stimulated with carefully tailored reforms of recruitment, training and career. Judges must be rewarded for behaving in an impartial way. However, judicial professionalism must include not only the knowledge of the law or of that set of specific judicial skills often defined as judge craft.23 Good judges need also political skills: the capacity of analyzing the environment in which they act, the allies they can rely upon, (at a more general level) the role of courts in a democracy, the limits of their power and of their capacity to bring about social and political changes.24 f.

Finally, a note of caution is needed. Building an impartial and powerful judiciary is not easy and social science cannot always provide ready-to-be- applied recipes. Maybe, we can learn something from the advice of a well- known XIX Century novelist. In his masterpiece - The Charterhouse of Parma - Stendhal introduced the subject of judicial independence in a dialogue between count Mosca - the astute prime minister of the duke of Parma - and Fabrizio - the naive but pleasant

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See, for instance, neo-liberal and neo-constitutional trends in Rodriguez-Garavito 2012 (also Brinks 2012). Bolivarian refers to Venezuela. Indigenous to Bolivia. See also Couso, Huneeus ans Sieder 2010 (esp. Huneeus, distinguishing between neo-constitutionalism, traditional formalism and New Left). 23 I.e. case management, judicial conduct and ethics, assessment of credibility, evidence gathering and decision writing, including an analysis of processes leading to decisions such as sentencing theories. 24 See the recent considerations of Lord Thomas, Lord Chief Justice of England and Wales (2014, 3) : ".the relationships between the judiciary and the other branches of the state had prior to 2005 and have thereafter continued progressively to diverge . I do not regard it as beneficial".

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protagonist of the story: « A score of times I could have brought the whole gang before the courts, and Your Excellency may imagine,” he went on, addressing Fabrizio, "whether my good judges would have convicted them.” "Ah, well, that is what spoils it all for me," replied Fabrizio with a simplicity which was quite refreshing at court; "I should prefer to see them sentenced by magistrates judging according to their conscience.” "You would oblige me greatly, since you are travelling with a view to gaining instruction, if you would give me the addresses of such magistrates; I shall write to them before I go to bed." "If I were Minister, this absence of judges who were honest men would wound my selfrespect." (Stendhal, The Charterhouse of Parma, 1839, ch. X)

I don't think contemporary "consultants" will agree with the skepticism of Stendhal. However, I prefer to think that independent judges cannot be found „out somewhere" in society: in fact, they are the by-product of a long chain of decisions, of a long series of efforts. In any case, a goal not easy to be achieved but worth of being pursued with the necessary tenacity. * Thanks to Patrizia Pederzoli and Daniela Piana for their useful suggestions.