—Björn Dressel, Australian National University, Raul A. Sanchez Urribarri, La Trobe University, Alexander Stroh, University of Bayreuth
We are pleased to share with the scholarly community the publication of a special issue of the International Political Science Review – Informal Networks and Judicial Institutions: Comparative Perspectives (Vol. 39, No 5, 2018).
Throughout the world, judicial institutions – especially courts of last resort – have become central to political life. Yet, despite a growing body of scholarship, there is still considerable debate about how and why judges make decisions, and under what conditions courts protect rights and control power, across countries and over time.
Our understanding of judicial behaviour is usually based on theoretical models established in Western democracies that consider ideological, strategic and legal factors to be the main explanations of judicial decisions. Yet, as has become apparent, Western theory runs into difficulty in sociopolitical contexts where the legal environment is in flux, ideological fault lines are often non-existent and institutions are dysfunctional or ineffective. Moreover, even in the West traditional approaches to the study of courts are being questioned – as evidenced by this year’s debates surrounding Brett Kavanaugh’s nomination to the U.S. Supreme Court and the growing influence of the conservative movement beyond (or together with) ideology-driven agendas in different judiciaries around the world.
As we discussed in our contribution to the Annual Review of Law and Social Science (2017), and further elaborate in our recent Special Issue in the International Political Science Review, part of this gap can be filled by looking at the existence, role and relative effect of informal connections and networks on judicial institutions. We call this perspective informal judicial politics or relational approach to judicial decision-making.
As is the case in other areas of political life, formal and informal judicial practices are often closely entwined – in general, personal interactions matter to how institutions function. A range of works by judicial politics and socio-legal scholars have recognized that judges are embedded in a social milieu, and that this has meaningful implications for judicial behavior. This line of work draws attention to how judges participate in circles of social interaction (networks), among them the judicial hierarchy, political actors, trusted friends, family members, moral advisors and pressure groups. These networks often generate a host of phenomena of interest to comparative constitutionalists and scholars of judicial politics. A relational approach can illuminate how informal networks influence such factors as (a) appointments, discipline and promotion of judges; (b) support for, or resistance to, judicial and legal reform; (c) decision making in highly political cases; and (d) ultimately judicial independence and the legitimacy of courts. Moreover, it has powerful implications for broader discussions about constitutionalism and the rule of law.
Of course, a relational perspective raises significant challenges for data collection, analysis and dissemination. Social Network Analysis (SNA) is the prevalent approach to measuring and analysing relational data, but there are other methods that can be used for studying informal networks and judicial dynamics. The articles in the Special Issue include detailed descriptions in historical perspective of patronage networks within the Mexican Federal Judiciary (by Andrea Pozas-Loyo and Julio Rios-Figueroa) and more recently in Ukraine (by Alexei Trochev); economic exchanges between judges and lawyers in contemporary China (by Ling Li); and decisions in high-profile cases by the Philippine Supreme Court (by Bjoern Dressel and Tomoo Inoue), courts in Southern Africa (by Peter Brett), and Benin’s Constitutional Court (by Alexander Stroh). These analyses paint highly complex pictures, not only of the types of networks to which judges belong but also of how varied their effects on actual judicial decisions, on judicial autonomy, and on the legitimacy of the judiciary as an institution.
Drawing attention to new scholarship on judicial politics, in Informal Networks and Judicial Institutions: Comparative Perspectives we offer new perspectives on how courts operate in a variety of contexts. We hope this will help generate additional discussion in this important area of scholarship.