[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Malcolm Feeley reviews Piotr Mikuli, Natalie Fox, and Radosław Puchta’s book on Ministers of Justice in Comparative Perspective (Eleven Publishing, 2019).]
—Malcolm Feeley, Claire Sanders Clements Dean’s Professor, Jurisprudence and Social Policy Program, School of Law, University of California at Berkeley
This book addresses the age old question, Quis Custodiet Ipsos Custodes, who guards the guardians? It focuses on ministries of justice and their responsibilities for overseeing courts. To this end, the authors undertake an extensive review of the constitutional and legislative responsibilities of the ministries of justice of the United Kingdom, Ireland, Germany, Austria, France, Italy, and Poland. The inquiry is animated by the authors’ question, do ministries of justice, invariably executive offices, undermine the judiciary by violating the separation of powers? Their answer is, yes.
The book consists of a systematic review of the many ways these ministries affect courts. It opens with a review of how ministers of justice are appointed and removed, and the range of their responsibilities. Chapter two examines the impact of the minister of justice on the administration of the courts, including the determination of the internal organization of the courts, the creation and dissolution of courts, the appointment and dismissal of heads of courts, and the relationship between the ministry and court administration. Chapter three explores the relationship between ministers of justice and judges, and the role of the minister in judicial selection, discipline, and education. A final chapter examines the duties of ministers not directly related to the judiciary, such as responsibilities for prosecutors, probation, and corrections. These core chapters are impressive; they explore these and still other functions of the ministries for all seven countries, and in so doing reveal a wide variety of arrangements and policies, many of which have the potential for doing mischief to the courts. While the authors find that some arrangements are better than others in terms of fostering judicial autonomy, they conclude that none of them—not even the best features plucked from each the seven countries–assures the degree of separation of powers they deem essential. In a short Epilogue, they set out their recommendation: ministries of justice should be abolished so as to protect judicial independence and a full separation of powers. They then go on to show how the many useful functions currently performed by these ministries can transferred to other government units in ways that do not violate the separation of powers or weaken the courts. Indeed, they argue this proposed rearrangement will strengthen and protect the courts.
One need not agree with the conclusions—I do not—to find great value in this book. Perhaps its greatest contribution is its careful comparative analysis of the organization and responsibilities of ministries in seven countries, which represent both the common law and the civil law, and countries with a wide variety of governmental structures. Anyone remotely interested in the comparative structure of ministries of justice or in contemplating redesign within this ministry in any country that has one can profitably consult this volume to review the range of forms of organization of this ministry, and to assess their pros and cons. Some designs are clearly better than others, and the book is well worth considering anytime the issue of ministerial restructuring arises. This alone makes the book a distinctive and valuable contribution.
But, readers should be forewarned. The authors are formalists. They tell us virtually nothing about organizations-in-action, or extra-legal contexts. In addition, they are devoted to a pure version of the separation of powers, and view with suspicion anything short of an autonomous, self-generating judiciary. So, whatever the built-in safeguards, if oversight and administrative functions are housed within a ministry of justice, they are fatally compromised. Indeed, they view ministries of justice as anachronisms, residual features of the ancient regime, when the crown personally controlled all its retainers, even judges. Historically, they are correct. The embrace of the Rechtsstaat only went so far towards supporting the rule of law. The subsequent embrace of separation of powers, liberal constitutionalism, democracy, and judicial review went still further in limiting and distributing governmental powers, and enhancing the role of the judiciary. But, these concepts are expansive and protean. They do not lend themselves to tidy definitions. None are neat, or pure, or mutually exclusive. Like democracy and constitutionalism, separation of powers may have a core, but it is fuzzy around the edges. If nothing else, the ideal of democratic accountability assures this—though the authors insist that judging itself is not subject to democratic principle.
Furthermore, the rise of dictatorship and despotism, as well as constitutionalism, judicial review, and the modern administrative state all, in quite different ways, add further complexity to any reflections on the nature, form, and functions of the judiciary. The contemporary world has seen its share of despotism and the destruction of the rule of law and independent courts. Judges have been subject to telephone justice; wholesale removal and replacement; elimination of office; overnight reorganization; and intimidation and arrest, and even murder. Constitutionalism—in Europe energized by the European Court of Justice and the International Court of Human Rights—has greatly enhanced the powers of some courts, and in so doing all but invites conflicts and stand-offs between courts and the political branches, which require some ways to mediate among the separate branches. Additionally the modern state is swamped with a host of violations and misdemeanors, as well as cascades of administrative regulations. Is there one mold into which all judges are to be fitted? Perhaps the authors have in mind a distinction between a regulations and laws, and address their concerns only to the latter. Neutering the courts so as to avoid judicial review and confrontation with the political branches is perhaps one way to go, but my impression is that it is neither the authors’ ideal nor the drift of contemporary governments. Also, if a country embraces international law, as do all the countries under consideration in the book reviewed here, the imperatives of international law generate tensions with domestic law and unavoidable political tensions. Judicial supremacy allocates immense political power to courts, and this inevitably draws them into controversy and conflict. It is impossible to see how a pure separation of powers can be achieved, unless judges duck their heads very low.
Finally, the rise of the modern administrative state involves governments in a host of regulatory activities that generate controversy and require dispute resolution. Ministries of justice may be a remnant of a past era as the authors assert, but agencies within ministries of all sorts are also engines of the modern state. They make most law, they enforce most law, and they resolve most legal disputes, and as such they violate all the core principles of the separation of powers. Their hearing officers deal with disputes involving labor relations, employment discrimination, pensions, welfare benefits, health care benefits, licensing and certification processes, accidents—and their judgments are often of much greater consequence than those meted out in “real” criminal or civil courts. Although agencies usually erect barriers to assure disinterested judgement, those barriers are far from impermeable, and agency officials often retain power of audit, review, and adjustment in light of budgetary considerations and agency mission. Indeed, in many ways the modern administrative state has reduced the scope and importance of the judiciary, as regulatory agencies have replaced courts because they are more efficient, more effective, and much cheaper. To the extent that a pure separation of powers transforms courts into even more rarified institutions, the change might further accelerate the flow of cases away from the courts, and leave the courts with only the big and politically charged issues and the problems of the poor who cannot afford private justice. More generally, in some ways, every system of justice faces constraints, and so there may be value of having them sorted out in a ministry of justice with an expansive mandate over the “administration of justice.”
I must confess that I come at this as an American. Indeed, I was eager to review Ministers of Justice in Comparative Perspective, precisely because the United States does not have ministries of justice at either the national or state level, or indeed anything close to them. Furthermore, I write about the criminal process and have long thought that the absence of ministries of justice is a serious weakness in the administration of criminal justice in the United States. Legislatures adopt needless laws with draconian sentences without reflection on them by any other government institutions. Police initiate campaigns without much regard for the workload of prosecutors and judges. Prisons are overcrowded because prosecutors and judges do not take capacity into consideration. Proposed laws may have unintended consequences that could have been anticipated with discussion, research, and reflection. No one examines the justice budget as a whole to assure that the various parts work together. The American system of justice is a travesty, more closely associated with Third World countries than those countries surveyed in this book. Furthermore, with respect to private law, Americans with legal disputes have fled the courts in droves for private alternatives in order to obtain faster, cheaper and more effective justice. For those cases that remain in court, judges usually do little more than ratify decisions made elsewhere rather than adjudicate. There is no guarantee that a ministry of justice would make a difference, but at least it is a place where semi-autonomous parts of the justice system meet under the same roof to sort things out in ways that might make a difference.
In my limited contacts with officials in a handful of ministries of justice in Europe and Asia, I am told that something like this occurs when new ideas are proposed. If so, this does not guarantee that they get things right, but it means that issues are explored and authoritative resolutions arrived at. It is for this reason, among others, that I have long thought that the United States—states and nation—would be better off with ministries of justice. They would include representation of powerful players and stakeholders. They could plan rational budgets. They are organized gingerly but hierarchically, so that authoritative decisions could be made. Such institutional arrangements in the United States do not exist. Instead, the justice systems are characterized by fragmentation, hypertrophy, and subterfuge. One result: justice is lost in the process.
I appreciate the value of judicial autonomy, the need to select capable judges, and to insulate them from political reprisal and influence. I also appreciate, as the authors have demonstrated, that many valuable functions performed by ministries of justice can be pursued through other means, so that justice ministries are not absolutely necessary. But this could be said about most or even all ministries, and indeed institutions of all types, both public and private. The question is, are we better off by decentering these organizations and fragmenting their functions? The authors of this book conclude that with respect to ministries of justice we are better off because a purer form of separation of powers and judicial autonomy can be realized. In their formal analysis, they are convincing, since it is proof by definition. However, institutions are means to ends. So, the question: at what price? The authors do not tell us. They hint at their underlying concern. They fear the slippery slope: If even a crack is open, malignant political forces will crawl through and corrupt the judicial process. This, of course, is a very real concern; history has repeatedly revealed it to be true. But history has also shown, I think, that parchment barriers protecting the judiciary—or indeed, any institution—are not by themselves strong guarantees of independence and autonomy. The authors write of the need for the legitimacy of the judicial process, but they use this term in a formal sense: does it accord with proper principles? They might also have reflected on Max Weber’s social definition of legitimacy; does the population believe that the exercise of power or autonomy is warranted—is it authoritative? Both are important, but the latter is crucial.
Let me give two examples of what I am driving at. In passing, the authors briefly describe two practices that meet with their approval. But, even as they seem to buttress the authors’ case, they might also undermine it. One of their central concerns is the need for a non-political process for selecting judges, and they cite approvingly the lengths to which Italy has tried to assure this. In Italy, after a long and arduous judicially controlled education, training process, and set of examinations, sitting judges select new judges. This of course is one way the Italian judiciary has tried to protect itself from contamination by the mafia, and it appears to be quite successful. But, Italy has perhaps the most inefficient criminal justice system anywhere in the modern industrialized world. It might be a Rolls Royce of a system that no one can hijack; but it is also a Rolls Royce of a system that few can use to complete their journey. The price of perfect justice may be too high. The Italian judiciary may be a model of the separation of powers at least in this regard, but it is also a model of inefficiency. This inefficiency may be wholly unrelated to judicial selection. I do not know. Still, it would be worth investigating. Similarly, the authors refer approvingly to an article by Garoupa and Ginsburg, which describes the composition and functions of “judicial councils” for the discipline of judges, but then go on to note that Garoupa and Ginsburg do not believe such councils have any impact on the independence and quality of the judiciary at all—that they are due to a host of other contingent and context-specific factors. This might apply to the ministries of justice as a whole; the independence and quality of the judiciary may be due to a host of contingent and context-specific factors, so no one-size fits all. If so, it may be precarious to dismiss ministries of justice as anachronisms of the ancient regime, and replace them with a new model, however appealing in theory. Having said this, I want to emphasize that this book is choc-full of interesting ideas. The authors may be taking us down a road to a destination we reject. But on the journey they reveal an enormous number of distinctive and sensitive functions of the judiciary, as well as point to an array of different ways that ministries of justice can be and are structured. In doing so, they force us to think more clearly about the structure of ministries of justice, the precarious independence of judges in an uncertain world, and how we might better preserve their sacred tasks.
Suggested Citation: Malcolm Feeley, Review of “Ministers of Justice in Comparative Perspective” (Piotr Mikuli, Natalie Fox, and Radosław Puchta, eds.), Int’l J. Const. L. Blog, June 6, 2020, at: http://www.iconnectblog.com/2020/06/book-review:-malcolm-feeley-on-“ministers-of-justice-in-comparative-perspective”-(piotr-mikuli,-natalie-fox,-and-radoslaw-puchta,-eds-)