Confidence in the Judiciary: Comparing the Independence and Legitimacy of Judicial Systems

This contribution investigates the determinants of judicial confidence. It argues that this is the decisive source of legitimacy for the third branch. Fairness and impartiality, i.e. the independence of the judiciary, are paramount in fostering citizens' confidence in the justice system. Through several multilevel analyses, the study tests whether judicial independence promotes the development of an individual's confidence in the justice system. The results show that judicial independence has a positive impact on the development of individual trust. However, public beliefs about the trustworthiness of judicial institutions do not seem to originate from constitutional rules (de jure independence) but from actual events and real life experiences (de facto independence).     

THE ROLE OF THE JUDICIARY IN RELATION TO PUBLIC ADMINISTRATION*

The relationship between the judiciary and public administration is founded in the constitutional principles which lie at the basis of our system of government. The three branches or arms of government, as they are known to constitutional law, are the legislative, the executive and the judicial. They are said to be equal and coordinate. There is a complex constitutional relationship between the three arms of government which does not always follow a consistent pattern. It is marked somewhat paradoxically both by mutual independence and interdependence. Public administration is carried on by the executive branch.     

Legal development and human rights in Uruguay: 1985–2002

This article attempts to explain why Uruguayan judges have lagged behind judges in Chile and Argentina in the prosecution of the military for human rights violations committed during the dictatorship period in the 1970s and 1980s. By tracing judicial human rights activity in Uruguay from the transition to democratic rule in 1985 until the end of 2002, I argue that Uruguayan judges have been actively restricted by an aggressive anti-human rights policy expressed through a national amnesty law and explicit executive interference in judicial matters. Structural changes to the judiciary might have aided Uruguayan judges to overcome these barriers. Instead, failure to reform the judiciary has prolonged its conservative nature and made judges slow in responding to international legal development in the human rights field.     

Checks, Balances, and Appointments in the Public Service: Israeli Experience in Comparative Perspective

This article explores the process of appointing government ministers and senior executive officials in Israel. It provides several case studies of the appointment process in the 1990s, a period of hyperfragmentation in the Israeli parliament. These studies reveal evidence of gross irresponsibility in the appointment process, as well as a lack of a meaningful oversight and checks in the process. One consequence is that the Israeli High Court was asked to intervene and review and reject a number of these appointments. The article argues that although well meaning, this intervention represents a dangerous new trend; this new role for the Courts is both inappropriate and counterproductive. It is inappropriate because judicial intervention imposes a legal solution when a political solution is called for, and it is counterproductive because frequent judicial intervention weakens both the judiciary and the political process. The article concludes with a proposal for an alternative approach to cope with the lack of meaningful oversight in the political-appointment process.     

Transitional Strategies and the Inclusive Democracy Project

The aim of this paper is twofold. First, to critically assess the various transitional strategies for radical social change that have been proposed in the past, as well as some recently developed strategies, like the civil societarian approach, the Libertarian Municipalism strategy and the 'lifestyle' strategies. Second, to propose a new transitional strategy that aims at the transition to a confederal inclusive democracy. In this context, the emancipatory subject in present society is discussed, a new type of politics and political organisation is suggested and a series of steps for the transition to a political, economic, ecological democracy, as well as a 'democracy in the social realm' is proposed.     

公正审判基本人权视野下的司法独立与司法受制

公正审判基本人权视野下的司法独立，其全部目的是为了公正审判。为防止绝对的权力导致绝对的腐败，司法权本身也需要约束，因而司法独立也不是绝对的，存在公正审判的诉讼机制下司法受制的必要性，印司法要接受司法内监督和司法外监督。司法内的监督包括审级监督和再审监督，司法外监督包括媒体监督、权力机关监督和社会其他监督等，而司法外监督以不代替司法审判、不构成对司法权的不正当干涉为底限。司法独立与司法受制共同统一于公正审判。     

The Political Economy of Transition in Post-Socialist Systems: The Case of the Baltic States

The nature of the failed socialist systems calls for a transition which is as comprehensive in its objectives as were the systems themselves before they failed. Hence, the transition to democracy in the post-socialist systems cannot be treated as separate from the transition to a market economy and national independence. The critical part of the transition is the economic reforms inasmuch as the institutions of the planned economy are the major power base for the conservative elites. To be successful, the economic transition must be able - in both the short and the long term - to command political support, to achieve social acceptance of the distributional consequences involved and to be compatible with democratic institutions. Analysis reveals that in the case of the Baltic states widespread support for the transition to a market economy can be detected and that the democratically elected governments have so far been fairly active in establishing a legal framework for transition, but appear unable to implement the necessary stabilization policy. The reforms have produced strong social protests, and the governments have been under pressure to maintain social guarantees during the period of transition. The non-Baltic minorities in particular defend previous social privileges and are distressed by their uncertain status after independence. The ultimate outcome of political and economic transition in the Baltic states, therefore, remains in doubt.     

Explaining judicial reform outcomes in new democracies: The importance of authoritarian legalism in Argentina,Brazil, and Chile

Recent judicial reforms after democratic transition have been substantial and relatively successful in Chile, but much less so in Argentina and Brazil. This article traces this variation in outcomes to the legal strategies of the prior authoritarian regimes. The Brazilian military regime of 1964–1985 was gradualist in its approach to the law, and had a high degree of civilian-military consensus in the legal sphere. It was not highly repressive in its deployment of lethal violence, and this combination of factors contributed to a gradualist and consensual transition in which judicial reform was not placed high on the political agenda. The Argentine case of military rule between 1976 and 1983 was almost the opposite. The military sidestepped and even attacked the judiciary, engaging in almost entirely extrajudicial violence. This generated a “backlash” reform movement after the transition to democracy that was mostly retrospective and only partially successful. In Chile, in contrast, the military engineered a radical break with previous legality, engaged in violent repression, but made considerable efforts to reconstruct a judicial order. It was in the aftermath of this situation that reformers were able to push through a prospective and relatively successful judicial reform. This article's findings suggest that judicial reform may be more likely to succeed where the prior authoritarian regime was both repressive and legalistic, as in Chile, Poland, and South Africa, than where high degrees of repression were applied largely extrajudicially, as in Argentina, Cambodia, and Guatemala, or where the authoritarian regime was legalistic but not highly repressive, as in Brazil, Mexico, and the Philippines.     

The political and practical obstacles to the reform of the judiciary and the establishment of a rule of law in China

Is China’s “socialist rule by law” (社会主义法制) qualified to be called “rule of law” (法治) or a “thin rule of law” proposed by Randall Peeremboon, without abolishing the political supremacy of the Chinese Communist Party and the establishment of an independent judiciary? Since the mid-1990s, the Chinese legal system and its judiciary have gone through reforms and on the whole modernized. However, the Chinese judiciary still faces many problems, and among them the lack of professional jurists, corruption and local protectionism appear as crucial ones. The current political and institutional arrangements and lack of freedom of the press and freedom of association clearly intensify these problems. “Rule of law” (法治) or “rule by law” (法制) in China is still more often interpreted in the light of the respective political, bureaucratic and economic powers of the parties involved than according to principles of law or equity. The modernization of the legal system will continue, but the political translation of the legal demands of society and the international community will take time to materialize. In the meantime, risks, setbacks and difficulties will continue to prevent China from establishing a truly independent judiciary and what is universally called a rule of law.     

Travails of Truth: Achieving Justice for Victims of Impunity in Nigeria

Following its transition to democracy from an authoritarianmilitary rule marked by gross violations of human rights, Nigeriaestablished the Human Rights Violations Investigations Commission(HRVIC) in 1999. This paper critically examines the contributionsof the HRVIC, popularly known as the ‘Oputa Panel,’to the field of transitional justice and the rule of law. Itsets out the process of establishing the Commission, its mandateand how this mandate was interpreted during the course of theCommission's work. The challenges faced by the Oputa Panel,particularly those that relate to its legal status and relationshipwith the judiciary, are analyzed in an attempt to draw usefulguidelines from these challenges for other truth commissions.Recourse by powerful individuals to the judicial process ina bid to shield themselves from the HRVIC merits particularreview as it raises questions regarding the transformation ofthe judiciary and the rule of law in the wake of an authoritarianregime.     

The President as Institution Builder: The Reagan Case

Every president bestows upon his successors a "legacy" that will have an impact on both policy issues and institutional operations. Although attention is commonly focused on the president's role as a policymaker, he serves as an institution builder, as well, leaving a legacy that is manifested in long-term developments, in technical details of managing the job, and in patterns of interaction with other actors in the political environment. Reagan's institutional legacy has been the subject of intense debate and is addressed here in relation to five vantage points as they were employed during his eight years in office: personnel, structure, standard operating procedures, modes of exercising influence, and norms. These dimensions are examined in relation to the presidency, the bureaucracy, Congress, and the judiciary.
Reagan's departures in the selection and management of executive and judicial branch personnel were the most distinctive features of his legacy. Important changes were also made in the regulatory review and budgetary processes. Politicization and centralization, two long-term developments in the presidential office, gained renewed vigor, and Reagan elaborated a judicial strategy for achieving policy goals while refining the administrative strategy pioneered earlier by Nixon. Serious damage may well have been done to the norms of public service and justice under the rule of law. The framework introduced here promises to help scholars deal more systematically with the institutional impacts of both past and future presidents.     

Public Outrage,Media Spectacle and the Kapunda Road Royal Commission

The article focuses on the relationship between the executive and the judiciary in respect of a legal case that provoked public outrage. This outrage entered into the media spectacle and was channelled by the executive into calling a royal commission. The royal commission was charged with re‐examining the police actions and the legal case. However, hidden behind its narrow terms of reference was the larger question of justice being ‘blind’ to a network of privilege. As such, the royal commission had the potential to threaten the independence of the judiciary.     

A judges' revolution? Political corruption and the judiciary in Italy

Abstract. During the investigations into political corruption in Italy, judges emerged in the eyes of the public as the 'heroes' of a peaceful revolution against the 'villainous' politicians. The established explanation for the active role of the judiciary against corruption stresses the unusual degree of independence of Italian judges. Without denying the importance of this institutional variable, analysis of the interactions between politicians and judges in the history of the Italian Republic allows one to discuss the role of other two important variables: the informal networking between politicians and judges, and the professional culture of the magistracy. The three sets of variables are in fact used to explain two different strategies adopted by Italian judges in their interaction with the political system: a strategy of 'role substitution', acccording to which some judges act as a surrogate power for the protection of the citizens against corrupt politicians, and a 'collusive strategy', consisting of various levels of hidden exchanges between judges and politicians. This article is based on an examination of judicial documents relating to 40 episodes of political corruption, in–depth interviews with experts, reports of relevant Parliamentary Inquiry Commissions, requests for indictment of Members of Parliament, official statistics and the daily and weekly press.     

Repealing Federal Oversight of State Health Policy: Lessons from the Boren Amendment

The Boren Amendment is frequently cited as an example where judicial involvement markedly shaped the implementation of federal legislation. Unlike other controversial health policies, Boren was eventually rescinded by Congress. Results indicate that the Amendment was repealed because changing socioeconomic, political, and programmatic conditions combined with policy‐oriented learning to facilitate a shift in policy venue away from the judiciary toward the President and Congress. This is because during the devolutionary climate of the mid‐to‐late 1990s, both the executive and legislature proved more conducive to the policy image promulgated by state officials that the Amendment unnecessarily restricted state discretion, than the policy image promulgated by providers that without the Amendment, low reimbursement levels would compromise access and quality. Data for this analysis derive from archival documents, secondary sources, and 101 interviews with state and federal experts.     

The Politics of Court Budgeting in the States: Is Judicial Independence Threatened by the Budgetary Process?

Judicial independence in American politics has been hailed as a means of preserving individual liberty and minority rights against the actions of the majoritarian branches of government. Recently, however, legal professionals and scholars of the courts have begun to question the magnitude of judicial independence, suggesting that budgeting and finance issues pose a threat to judicial independence. This article explores whether state judiciaries are being threatened on this front by soliciting the perceptions of key state officials. Using surveys of court administrators, executive budget officers, and legislative budget officers in the states, we examine three aspects of the politics of judicial budgeting: competing for scarce resources, interbranch competition, and pressure to raise revenues. The survey responses suggest that, in a substantial number of states, judicial independence has, at times, been threatened by interbranch competition and pressures to raise revenues.     

Norway: Madisonianism Reborn

This article discusses citizen control in Norwegian parliamentary democracy, and specifically the changes that have recently taken place. Around 1960 Norway had reached a constitutional form that, apart from the consequences of proportional representation, looked much like a Westminster system. From that point on, however, Norwegian democracy has generally moved away from this model. A series of minority governments has given rise to parliamentary reassertion. The Norwegian party system has fragmented, and the individual parties have atrophied as mass membership organizations. A wave of corporatism and later a heightened assertiveness on the part of the judiciary have helped to contain parliamentary power. Two critical European Union membership referendums in 1972 and 1994 have firmly established the role of direct democracy in critical political decisions. And despite the results of these two popular consultations, international constraints have become ever more significant. Compared with most others in Europe, however, Norway is a relatively unconstrained polity. There are few important ways in which the citizenry is partitioned into multiple democratic principals, and the country is a reasonable fit to the parliamentary ideal type of an unfettered hierarchy controlled by the median voter. At the same time, the trend is unmistakably one towards greater policy‐making complexity and increasing constraints on policy makers. Norway's reluctant but seemingly inevitable incorporation into a larger Europe is the greatest and most decisive of these constraints, but it is not the only one. Judicial institutions are likely to play an increasingly important political role, and direct democracy perhaps likewise. And although central bank independence has met with greater scepticism than in most other European countries, it is not likely to be reversed. All in all, it seems that Norwegian parliamentary governance is becoming at least a little more Madisonian and a little less Westminsterian.     

Institutional Inconsistency and Political Instability: Polity Duration, 1800–2000

This article examines how political institutional structures affect political instability. It classifies polities as autocracies or democracies based on three institutional dimensions: election of the executive, constraints on executive decision-making authority, and extent of political participation. It hypothesizes that strongly autocratic and democratic regimes will exhibit the greatest stability resulting from self-enforcing equilibria, whereby the maintenance of a polity's institutional structure is in the interest of political elites, whether through autocratic or democratic control. Institutionally inconsistent regimes (those exhibiting a mix of institutional characteristics of both democracy and autocracy) lack these self-enforcing characteristics and are expected to be shorter-lived. Using a log-logistic duration model, polity survival time ratios are estimated. Institutionally consistent polities are significantly more stable than institutionally inconsistent polities. The least stable political systems are dictatorships with high levels of political participation. The most unstable configuration for polities with an elected executive is one where the executive is highly constrained, but the electorate is very small.     

Testing the Effects of Independent Judiciaries on the Likelihood of Democratic Backsliding

We test the efficacy of judicial independence in preventing regime reversals toward authoritarianism. Using a dataset of judicial constraints across 163 different countries from 1960 to 2000, we find that established independent judiciaries prevent regime changes toward authoritarianism across all types of states. Established courts are also capable of thwarting regime collapses in nondemocracies. These results provide some of the first large‐n evidence confirming the ability of the judiciary to maintain regime stability. Unfortunately, however, the beneficial effects of court systems seem to take time to develop. The evidence indicates that newly formed courts are positively associated with regime collapses in both democracies and nondemocracies.     

A Tale of Two Courts: The Judicialization of Electoral Politics in Asia

This article examines the judicialization of electoral politics in Asia, an important but understudied trend, as demonstrated in Thailand and Indonesia. Though the constitutional courts in both have similar histories and institutional arrangements, their electoral interventions vary radically. We argue that the diffusion or concentration of power among post‐transition elites determines whether the effect of judicial activism will be to shore up or undermine electoral governance. Where power is diffused, as in Indonesia, political actors, less able to impose their own will on the judiciary, seem to prefer a credible referee, which fosters electoral competition. Where power is concentrated, as in Thailand, elites have both the motive and the means to turn judicial activism to antidemocratic ends. By focusing on the ends, rather than the means, of judicial activism, this account goes beyond personalities and institutional design to enhance understanding of the role of the courts in transitional democracies.     

Subnational electoral regimes and crisis recovery in Argentina and Mexico

The confluence of Latin America's volatile economic development patterns and transition to democracy has given rise to a proliferation of work on the national-level political causes and consequences of economic shocks and recovery rates. We explore the subnational electoral determinants of crisis recovery through analysis of growth rates in Mexico's thirty-one states and Argentina's twenty-three provinces following their economic declines of 2000–2002. Consistent with a theory that views intra-national variations in democracy as critical to understanding broader development patterns, we find that subnational electoral “regimes” significantly affect provincial recovery rates. Provinces that have an established electoral legitimacy prior to the onset of an economic shock, and those in which the governor enjoyed a substantial margin of victory, had significantly stronger recovery rates than those provinces stuck in a subnational regime transition with a sitting executive who lacked any claim to an electoral mandate.