[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Raul A. Sanchez-Urribarri reviews David Kosař’s book on Perils of Judicial Self-Government in Transitional Societies (Cambridge 2016)]
–Raul A. Sanchez-Urribarri, Lecturer (Assistant Professor) in Legal Studies, La Trobe University
One of the key ideals driving judicial reform agendas is judicial independence. Countless resources have been dedicated to safeguarding judges’ independence and enhancing their autonomy vis-à-vis social, political, and economic actors (Messick 1999). Beyond all the confusions that persist about its true meaning, what explains its presence (or lack thereof), and the ongoing discussion about best practices to measure it, lies a shared premise that judicial independence is normatively desirable in a democratic regime and a bulwark of the rule of law (Larkins 1996).
Yet, now more than two decades old, this assumption is being subject to scrutiny. In some countries, formal reforms have plainly failed to create the intended outcomes, with no significant changes taking place over time (Hammergren 2007). In others, the emphasis on independence and other efforts to empower courts can be misinterpreted, or even abused. After all, a process of judicialization of politics raises the stakes of controlling courts, and could instead entail the politicization of the judiciary (Domingo 2000). Additionally, judges themselves can use these new powers and institutional architecture to their own ends – including corruption or pleasing networks of individuals affiliated with them. If this were the case, how could abusive judges be reined in? Shouldn’t we pay equal attention, at least, to the related question of who, how, and to what ends holds judges accountable? On the other hand, isn’t there the risk that accountability is used as an excuse for undue interference?
In Perils of Judicial Self-Government in Transitional Societies, David Kosař makes a compelling case to turn our eyes towards judicial accountability – broadly defined as “a negative or a positive consequence that an individual judge expects to face from one or more principals (from the executive and/or the legislature and/or the court presidents and/or other actors) in the event that his behavior and/or decisions deviate too much from a generally recognized standard” (p. 17).
Despite its importance, there are relatively few systematic analyses of judicial accountability and the institutions designed to ‘guard the guardians’– particularly the rise of independent judicial councils – this is, “independent and autonomous bodies endowed with significant powers in the management of the judiciary” (p. 122). This modality of court administration has figured prominently in the global rule of law discourse, and as Kosař points out it has been the favorite reform option in the democratizing world, especially in the post-Communist realm and Latin America. Although there has been mounting interest in recent years in studying the origin and performance of these institutions in comparative perspective (e.g. Garoupa and Ginsburg 2015, Piana 2010), the literature is still in formation. We need further theoretical elaboration, and the development of systematic analyses to help us map how and to what extent these institutions are fulfilling their mission.
Kosař’s Perils of Judicial Self-Government is a comprehensive, groundbreaking contribution in all these counts, based on an innovative analysis focused on the Czech Republic and Slovakia during the democratizing years following the fall of Communist rule (i.e. between 1993 and 2010). The book looks at shifts in the performance of court administration and a range of accountability mechanisms, as a function of different institutional changes – including, most importantly, the adoption of judicial council reform in Slovakia in 2003 according to the model favored and promoted by the European Union and the Council of Europe (the ‘Euro-Model’ of judicial reform). The book is divided into three parts: Part One offers a theoretical framework of judicial accountability; Part Two offers a longitudinal assessment of the performance of different judicial accountability mechanisms in the Czech Republic and Slovakia during the aforementioned period; and, finally, Part Three revisits the key research questions and arguments regarding judicial accountability, and its implications in cross-national perspective.
Thus, Part One explains the concept of judicial accountability in comparative perspective (Chapter One); offers a theoretical approach and ‘map’ of different judicial accountability mechanisms (formal and informal, which function as sanctions, rewards or both, Chapter Two); and develops a discussion on judicial councils, particularly the ‘Euro-model’ version favored by the European Union and the Council of Europe, and its connection with judicial accountability (Chapter Three). For conceptual clarity, Kosař focuses his analysis on ‘narrow’ accountability or ‘ex-fact’ controls (p. 34) that entail sanctions or rewards and focus on individual judges. Consequently, it leaves ‘ex-ante’ mechanisms (including judicial appointments) out of the analysis. Part One defines well the object of inquiry, and includes several reflections that invite further discussion and elaboration in future work. For example, the brief, but interesting discussion on ‘contingent circumstances of judicial accountability’ in pp. 92 ss. briefly highlights the book’s main goal from the study of several other mechanisms that are employed to control courts, including some that are informal in nature and potentially criminal or ‘pathological’ (pp. 108-113). These three chapters could easily stand on its own as a useful read for anyone interested in exploring the concept of judicial accountability more thoroughly, including graduate students and scholars specialized in rule of law issues.
Part Two uses the theoretical framework to carry out a cross-national small-n analysis of the Czech Republic and Slovakia, during the period of interest (1993-2010), by assessing archival and interview data compiled in situ. This part includes an introduction to the case studies and the research methodology (Chapter Four); thorough analyses of judicial accountability in the Czech Republic (Chapter Five), and the Slovak Republic (Chapter Six); and a comparison between the two cases, going back to the key questions of exploring the effects of the judicial council Euro-model reform in Slovakia (Chapter Seven). The case studies are rich in information, offering descriptions of the political environments of each country, and summaries of the institutional and judicial reforms carried out in their court systems as background. It proceeds to identify and carefully explain how different judicial accountability mechanisms worked in both countries between 1993 and 2002, and 2003-2010 respectively, with special attention to the changes that took place after the introduction of the Euro-model in Slovakia in 2003. The cross-national analysis deployed in Chapter Seven provides further insight to understand the impact of the reform in Slovakia after 2003, with specific relevance to who held judges into account (the key actors), the actual use of judicial accountability mechanisms, and the existence of accountability perversions (Section III, pp. 361 ss.). Finally, Part Three provides different reflections about judicial councils and judicial accountability that emerge from the theoretical and comparative analysis: The role of court presidents, the importance of leadership in judicial reform; the consequences of the judicial Euro-model (and other related reforms) on internal judicial independence; the performance of different accountability mechanisms in transitional societies and, most importantly, the (neglected) importance of judicial virtue.
Kosař’s thoroughly researched book is one of the most comprehensive accounts on judicial accountability written in comparative judicial scholarship, providing a solid basis for further discussions of this concept in academic circles. The book offers a springboard for future analyses on judicial accountability mechanisms and their operation, including their informal dimension, in the post-communist world and beyond. These informal mechanisms are critical in emerging democracies, particularly those that have emerged from long legacies of authoritarianism and embedded clientelar practices (Popova 2014; Trochev and Ellett 2014). Thus, Perils of Judicial Self-Government is an essential read for anyone interested in judicial reform and the trajectories of rule of law building programs in comparative perspective – particularly in the Czech Republic, Slovakia and the post-Communist space. Given its novel framework and well-documented analysis, it should find a place in the library of judicial reform and governance specialists, and in the syllabi and reading lists of relevant academic courses.
Suggested Citation: Raul A. Sanchez-Urribarri, Review of David Kosař’s “Perils of Judicial Self-Government in Transitional Societies”, Int’l J. Const. L. Blog, July 27, 2017, at: http://www.iconnectblog.com/2017/07/book-review-raul-a-sanchez-urribarri-on-david-kosars-perils-of-judicial-self-government-in-transitional-societies
Domingo, Pilar. 2000. “Judicialization of Politics or Politicization of the Judiciary? Recent Trends in Latin America” Democratization 11(1): 104-26.
Garoupa, Nuno, and Tom Ginsburg. 2015. Judicial Reputation: A Comparative Theory. Chicago: The University of Chicago Press.
Hammergren, Linn. 2007. Envisioning Reform: Conceptual and Practical Obstacles to Improving Judicial Performance in Latin America. University Park, PA: Pennsylvania State University Press.
Larkins, Christopher M. 1996. “Judicial Independence and Democratization: A Theoretical and Conceptual Analysis.” The American Journal of Comparative Law 44(4): 605-626.
Messick, Richard E. 1999. “Judicial Reform and Economic Development: A Survey of the Issues.” The World Bank Research Observer 14(1): 117-36.
Piana, Daniela. 2010. Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice. Ashgate.
Popova, Maria. 2014. Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine. Cambridge: Cambridge University Press.
Trochev, Alexei, and Rachel Ellett. 2014. “Judges and their Allies: Rethinking Judicial Autonomy through the Prism of Off-Bench Resistance”, Journal of Law and Courts 2: 67-91.