Judicial Accountabilities in New Europe

From Rule of Law to Quality of Justice

Daniela Piana

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9780754677581
• eBook ISBN:
  9781317110101
• Topic: Law
• Subtopic: International Law
• Index: Law

This volume focuses on a highly challenging aspect of all European democracies, namely the issue of combining guarantees of judicial independence and mechanisms of judicial accountability. It does so by filling the gap in European scholarship between the two policy sectors of enlargement and judicial cooperation and by taking full stock of an interdisciplinary literature, spanning from comparative politics, socio-legal studies and European studies. Judicial Accountabilities in New Europe presents an insightful account of the judicial reforms adopted by new member States to embed the principle of the rule of law in their democratic institutions, along with the guidelines of quality of justice promoted by European institutions in all member States.

Chapter 1
Logics of Action, Hypotheses and Impact

SOCRATE: Je t’ai dit que je suis né plusieurs, et que je suis mort, un seul …
PHÈDRE: Et que sont devenus tous les autres?
SOCRATE: Idées. Ils sont restés à l’état d’idées. Ils sont venus demander à être, et ils ont été refusés.

Paul Valery, Eupalinos ou l’Architecte, 1921

Glimpsing Something New Under the Western Sun

Rule of law promotion appeared as a political enterprise in the US during the 1960s. The frontrunner in that field was the Law and Development Movement (LDM) carried on by USAID1 and the Ford Foundation (McClymon and Golub, 2000),2 who continued to be prominent in the 1970s. The LDM was the ‘first generation’ (Ottaway, 2000) of activities carried on by law faculties and academics involved in a wide array of African, Asian and Latin American countries (USAID, 1994: 20). In particular, ‘law and economics’ theorists set the foundations of this policy programme. Indeed, the LDM relied on an economic theory of social processes. Accordingly, they expected legal norms to set the costs and benefits of social enterprises and to boost economic development.3 Thus experts involved in the LDM expected legal reforms to create ‘good and favourable conditions’ for economic development. The promoters intervened in the first stage of policy processes, almost drafting the texts of legal reforms: ‘The LDM was an overwhelmingly American movement, heavily influenced by modernization theory, and believed that the law could speed up social, economic convergence of the “Third World” with the West’ (Barron, 2005: 4). A further feature of that period was the ‘exclusive’ policy style adopted by experts. They worked in isolation from civil society, without any involvement with its representatives. Experts appointed in the projects held governmental elites as direct interlocutors.

A sort of ‘liberal legalism’ set out the conception of rule of law in the following propositions: 1) the State is the primary locus of supranational control of society; 2) the State exercises its control over individuals through law; 3) rules are consciously designed to achieve social purposes; 4) rules are enforced equally for all citizens; 5) courts have the primary responsibility for defining the effects of legal rules; 6) the outcome of adjudication by the courts is determined by an ‘autonomous body of learning’; 7) the behaviours of social actors tend to conform to the rules (Trubek and Galanter, 1974). Therefore, ‘public hands’ were held active and incline to drive social processes. Since national States were not fully developed in countries addressed by the promoters, monitoring institutions were located outside the national borders; for example, in the US or within the boards of international organizations (IOs). Since legal norms were implicitly held to be the tools of ‘social engineering’, a statutory interpretation of the ‘rule of law’ dominated (Hart, 1961).

This approach recognized a fundamental function of the mechanisms of legal accountability. Judicial independence was assessed with regard to the status of judges (but not with regard to the status of the judicial system). While the LDM emerged in a context which featured a common law legal culture, the positivistic view of the law as an artefact, aiming at creating conditions of collective actions, was dominant within the movement. The innermost feature of their policies was thus the importance of the legal knowledge of judicial actors, whereas the mechanisms of accountability4 which basically ties the legal system to the other systems of norms existing in the society (MacCormick, 1997) were almost neglected. The LDM attracted several experts working within governmental and non-governmental organizations:

Over the course of its brief life the Law and Development Movement attracted the interest of the best law departments in the country [most notably Stanford, Yale, Harvard and the University of Wisconsin], drawing funds and professional support from the likes of the Ford Foundation, the Agency of International Development, the American Bar Foundation (Barron, 2005: 5).

Despite that, the LDM was strongly criticized in the late 1970s and in the 1980s (Trubek and Galanter, 1974). Criticisms addressed theoretical and empirical aspects as well. At the end of the 1970s, social sciences were overwhelmed by the constructivist turn (Dryzek, 2000): interpretation, argumentation, cognitive factors re-evaluated. Scholars figured out new paths in policy studies and policy design (Wildavsky, 1987). Even from the empirical point of view the approach adopted in the 1960s revealed several shortcomings, challenging dramatically the LDM’s credibility in dealing with developing political systems. Lessons learned from Latin and Caribbean countries (Dakolias, 1999; Wade, 2005) obliged participants to ‘mind the gap’ between ‘law in the books’ and ‘law in action’ (Burg, 1977). Legal norms drafted by experts turned out weakly enforced (Anderson et al., 2005). Therefore, even if well designed, legal norms were ineffective in driving through further reforms in political and social fields.

The difficulties encountered in the implementation of the LDM’s policy suggestions consisted basically of a lack of any care for the societal and managerial mechanisms of accountability, whose function can be accomplished to the extent that the structures devoted to check the judicial behaviours have the capacities (or, better, the capabilities) to do it. For instance, in democratizing countries, where the experts enrolled by the LDM’s exponents worked for the largest part of their time, the social structures – citizens’ associations, organizations of functional representations, civil society organizations in general – and the structures of the State – administration, departments, of governmental or quasi-governmental agencies – featured a deep weakness, which essentially undermined the incorporation of the legal system into a much broader context, which is the one represented by the whole system of governance (Kooiman, 1993).

After the first wave of interventions, which were drawn by an overwhelming enthusiasm, experts and legal scholars realized that the obstacle to the effective implementation was the absence of social capacities (Trubek, 2004). Lawyers, human rights defenders and rights advocacy coalitions, needed to make pressure through the law, were so weak and underexposed to information and communication as to be unable to make the law a truly social mechanism of change (Merryman, 1977). Nor were spillover effects created by legal reforms taken into account by promoters. For example, the persistent change of legal environment undermined the certainty of law and obliged judicial staff to endorse discretionary behaviours to fit new law to old ones.

These concerns were attentively considered by the 1980s and 1990s waves of rule of law promotion (Barron, 2005: 9). The World Bank5 and USAID became two pillars in this policy field, expanding it internationally. Running a ‘new season’ of rule of law promotion, sustainability and long-term effectiveness were taken into consideration, recognizing that a comprehensive approach would better correspond to the needs and the priorities of local contexts. Initially, the World Bank focused on assisting countries through law reform, helping them to develop legal environments that encouraged local and foreign private investments, including stable and predictable systems to protect and honour property and contractual rights. Then, the Bank had to address judicial reforms, as countries began to recognize that enacting legislation alone could not yield the desired reforms without adequate infrastructure to implement, enforce or modify the law. Subsequently, the focus shifted to building and reforming the institutions needed for dispute settlement as well as making access to dispute resolution mechanisms and qualified and affordable legal representation.6 Many aspects of the judicial systems were key points in the overall design of the reforms:

The basic elements of judicial reform should include measures aiming at guaranteeing judicial independence, through changes in judicial budgeting, judicial appointment, and disciplinary systems improving court administration through adoption of case management and court management reforms; adopting procedural reforms; providing alternative dispute resolution mechanisms; enhancing the public’s access to justice; incorporating gender issues in the reform process; and redefining and/or expanding legal education and training programs for students, lawyers and judges (Dakolias, 1999: 9).

Projects of judicial reforms aimed at assisting judges, not only from the point of view of legal expertise, but also from the point of view of management and organizational know-how; best practices and models of case management were implemented by US experts relying on the experiences made in US courts themselves (Atkins, 2002).

In that sense, judicial independence was only a part of the focus of the second generation of rule of law promotion policies. Accountability and efficiency were also attentively addressed. The rule of law was a condition and a result of the reforms as well. It was considered a facilitating condition for the achievement of a fair, predictable and transparent legal environment (Barron, 2005). Furthermore, practitioners held the rule of law a result of a fair and impartial application of legal norms. This outcome then was a crucial condition to facilitate commercial and economic exchanges in recipient countries.

In any case, formal aspects were more focused than substantial ones. Barron argues that, until the end of the 1990s, ‘the basic intuition from which the doctrine of the rule of law derives is that the law must be capable of guiding the behaviour of its subjects … All laws must be prospective, open clear, and should be relative stable’. This rephrased Raz’s conception of rule of law (Raz, 1977: 198). Accordingly, good laws are well-designed laws, systematic, well-phrased, clearly formulated legal norms. In that view, ‘legal transplants’ (Watson, 1993) were held the main mechanism to transfer good legal experiences among different countries.

As a matter of fact, legal transplant doctrine turned out to be ineffective, costly and too demanding to be adequately applied in countries that for decades had experienced non-democratic political regimes (Gessner, 1994). The ineffectiveness of legal transplant suggested that substantial, cultural and cognitive factors should be taken into consideration, in order to achieve sustainable reforms. In Latin American and Caribbean countries a country-specific approach would have better succeeded in effectively implementing the general principle of rule of law (Dakolias, 1999; Prillaman, 2000). Also the experiences collected by experts appointed by the World Bank to lead the projects in the ex-communist region suggested to that cultural, local and historical factors can undermine the achievement of the goals of the reformers (World Bank, 2004).

Taking stock of these experiences, the ‘second generation’ of funding programmes focused much more on the ‘implementation gap’. Actors involved in law enforcement have access to training programmes, organized with the support of local organizations, their bar association, their union of judges, and think tanks or research institutions involved in policy advice at the local level (Anderson et al., 2005: 25).

To sum up, lessons provided by the World Bank programmes represented the bulk of the ‘rule of law orthodoxy’: ‘the set of ideas, activities, and strategies geared toward bringing about the rule of law, often as a means toward ends such as economic growth, good governance, poverty alleviation’ (Golub, 2003: 7).7 Key features of the rule of law orthodoxy include:

• institutional focus largely determined by the legal profession, as represented by a nation’s jurists, top legal officials and attorneys, and by foreign consultants and donor personnel;

• a tendency to define the legal system’s problems and cures narrowly, in terms of courts, prosecutors, contracts, law reform, and other institutions and processes in which lawyers play central roles;

• a reliance on foreign expertise, initiatives and models, particularly those originating in industrialized societies;

• where civil society engagement occurs, it usually is as a means toward the end of state institutional development;

• consultation with non-governmental organizations (NGOs) on how to reform the (narrowly defined) legal system, and funding them as vehicles for advocating reform.8

These features translate into the funding of an array of activities, which include: courthouse construction and repair; purchase of furniture, computers and other equipment and materials; drafting new laws and regulations; training judges, lawyers and other legal personnel; establishing management and administration systems for judiciaries; support for judicial and other training/management institutes; building up bar associations; and international exchanges for judges, court administrators and lawyers. As we will show, the European approach picked up from these features the milestones of its policy of rule of promotion, but it has framed them in a different normative and cognitive policy framework. Before reviewing the European approach to rule of law promotion, it is necessary to look at the intrinsic contribution of the legacy of the US and the various IOs in terms of mechanisms of accountabilities promoted into the judicial systems of the beneficiary countries. As a matter of fact, the pillar of the policy discourse developed by the rule of law promotion is captured by the concept of ‘judicial independence’. Not surprisingly, by the way, they stressed the importance of the legal norms defining the status of the judge (independence of judicial staff) and confining the influence that the other branches of the States can exercise upon the judicial system. In so doing, rule of law promotion has tried – more or less successfully, depending on the country we consider – to internalize the mechanisms of managerial and institutional accountability into the judicial system. By arguing in favour of a complete autonomy in the budget administration and in the process of recruitment, selection, promotion and disciplinary assessment of judicial staff, they tried to confine the overwhelming influence of the executive branches in the non-democratic judicial systems. From the organizational point of view, beyond the number of differences we can find by carefully analysing the countries which have benefited from the rule of law promotion policies, a trend toward the establishment of a bureaucratic judiciary, based on a monocratic system of governance where the judicial council plays a pivotal role, seems to be the dominant configuration emerging after several decades of international activities. Furthermore, in the US’s approach, managerial accountability emerged as a crucial leverage to get rid of the opacity and partiality of the judicial decisions. Budgeting and efficiency assessment came out among many other policy instruments as fundamental targets of the judicial reforms.

The Supremacy of Law and the Impartiality of the Judiciary: Three Ideal-Types

Policies aimed at promoting democratic institutions in developing countries borrow from political and social theory one of the most complex concepts that Western thought has ever conceived (Belton, 2005): the concept of the ‘rule of law’. Since the 1970s, this concept has been largely used to describe a...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Tables
• Acknowledgements
• Dedication
• List of Abbreviations
• Introduction
• 1 Logics of Action, Hypotheses and Impact
• 2 European Standards of Judicial Governance
• 3 Beyond Legal Accountabilities: Poland, Hungary and Czech Republic
• 4 Highlights and Shadows in Bulgaria and Romania
• 5 Judicial Governance as a Mirror of European Constitutionalism
• Conclusions
• Bibliography
• Index