Beyond Common Knowledge: Empirical Approaches to the Rule of Law 9781503624160

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Beyond Common Knowledge

Beyond Common Knowledge Empirical Approaches to the Rule of Law

edited by erik g. jensen and thomas c. heller

Stanford Law and Politics An imprint of Stanford University Press Stanford, California 2003

Stanford University Press Stanford, California © 2003 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. Chapter 3 © 2003 by Marc Galanter and Jayanth K. Krishnan. All rights reserved. Published with the support of the Microsoft Corporation. Printed in the United States of America on acid-free, archival-quality paper. Library of Congress Cataloging-in-Publication Data Beyond common knowledge : empirical approaches to the rule of law / edited by Erik G. Jensen and Thomas C. Heller. p. cm. Includes bibliographical references and index. isbn 0-8047-4802-0 (cloth : alk. paper) — isbn 0-8047-4803-9 (pbk. : alk. paper) 1. Rule of law. 2. Law reform. 3. Judicial process. 4. Courts. 5. Justice, Administration of. I. Jensen, Erik G. (Erik Gilbert) II. Heller, Thomas C. k3171.b49 2003 340⬘.11— dc21 2003001560 Typeset by G&S Typesetters, Inc., in 10 1⁄ 2 on 12 BemboAR. Original Printing 2003 Last figure below indicates year of this printing: 12 11 10 09 08 07 06 05 04 03 Special discounts for bulk quantities of Stanford Law and Politics books are available to corporations, professional associations, and other organizations. For details and discount information, contact the special sales department of Stanford University Press. Tel: (650) 736-1783, Fax: (650) 736-1784.

Contents

List of Tables

vii

Acknowledgments List of Contributors

ix xi

Introduction 1 erik g. jensen and thomas c. heller 1. Evaluating Systems of Justice Through Public Opinion: Why, What, Who, How, and What For? 21 josé juan toharia 2. Judicial Systems in Western Europe: Comparative Indicators of Legal Professionals, Courts, Litigation, and Budgets in the 1990s 63 erhard blankenburg 3. Debased Informalism: Lok Adalats and Legal Rights in Modern India 96 marc galanter and jayanth k. krishnan 4. Democratization of Justice: The Indian Experiment with Consumer Forums 142 robert s. moog 5. Empirical Research into the Chinese Judicial System donald c. clarke

164

6. Putting China’s Judiciary into Perspective: Is It Independent, Competent, and Fair? 193 hualing fu

vi Contents 7. Economic and Political Aspects of Judicial Reform: The Chilean Case 220 carlos peña gonzález 8. Judicial Reform in Mexico: What Next? héctor fix-fierro

240

9. International Assistance to Latin American Justice Programs: Toward an Agenda for Reforming the Reformers 290 linn hammergren 10. The Rule of Law and Judicial Reform: The Political Economy of Diverse Institutional Patterns and Reformers’ Responses 336 erik g. jensen 11. An Immodest Postscript thomas c. heller Index

419

382

Tables

1.1 Relevant Publics and the System of Justice 25 1.2 The Efficiency and Social Legitimacy Dimensions 28 1.3 A Basic Typology of Social Attitudes Toward the System of Justice 29 1.4 Public Opinion on the Efficiency and Social Legitimacy of Systems of Justice, European Union 29 1.5 Public Opinion on the System of Justice in Spain, 2000 30 1.6 Expert Evaluation and Public Opinion on the Efficiency and Social Legitimacy of the System of Justice 36 2.1 Population and Number of Attorneys, Western European Countries, 1990 and 1995 64 2.2 Numbers of Judges and Prosecutors, Western European Countries, 1990 and 1995 66 2.3 Legal Aid Cases and Expenditures, Western European Countries, 1999 67 2.4 Parties’ Shared Interests and Predictability, and the Outcomes of Civil Cases 68 2.5 Civil Cases, Western European Countries, 1990 and 1995 69 2.6 Long-Term Patterns of Outcome in German Litigation 70 2.7 Civil Court Appeals and Cassation/Revision Rates, Western European Countries, 1990 and 1995 76 2.8 Cases Before Labor Courts and Tribunals, Western European Countries, 1990 and 1995 78 2.9 Cases Before Administrative Courts and Tribunals, Western European Countries, 1990 and 1995 78 2.10 Victims’ Reports of Crimes, Western European Countries, 1995 80 2.11 Cases Disposed of by Prosecutors, Western European Countries, 1995 81

viii Tables 2.12 Police Reports and Prosecutions of Crimes, Western European Countries, 1995 82 2.13 Criminal Justice, Western European Countries, 1995 83 2.14 Prison Population, Western European Countries, 1990, 1995, and 1997 84 2.15 Growth in Judicial Budgets, Western European Countries, 1995 –1999 85 2.16 Judicial and Penal Budgets, Western European Countries, 1995 85 2.17 Respondents’ Awareness of and Trust in Their National High Court, Western European Countries, 1993 90 2.18 Respondents’ Attitudes Toward the Law, Western European Countries, 1993 91 3.1 Numbers of Judges, Common Law and Civil Law Countries 99 3.2 Salient Features of Forums for Everyday Justice in India 112 5.1 Court Personnel in China, Selected Years, 1979 –1998 174 6.1 Cases Filed in the Courts of First Instance, China, 1999 194 6.2 Criminal Cases Filed in the Courts of First Instance, China, 1980 –1999 195 6.3 Civil Cases Filed in the Courts of First Instance, China, 1980 –1999 198 6.4 Economic Cases Filed in the Courts of First Instance, China, 1980 –1999 200 6.5 Administrative Cases Filed in the Courts of First Instance, China, 1989 –1999 201 8.1 Social Indicators, Mexico, 1940 and 1990 248 8.2 Federal Judicial Budget, Mexico, 1970 –2002 259 8.3 Growth of Federal Courts, Mexico, 1930 –2002 263 8.4 Workload of the Federal Courts, Mexico, 1970 –2002 263 8.5 Services of Federal Public Defenders and Federal Legal Advisers, Mexico, 1998 –2002 267 8.6 Supreme Court Justices with Previous Experience in the Federal Judiciary, Mexico, 1984, 1993, and 1996 267 8.7 Circuit and District Court Appointments, Mexico, 1995 –2002 269 8.8 Personal and Professional Profiles of District Judges, Mexico, 1984 and 2002 271

Acknowledgments

usually sponsors are acknowledged at the end of a section such as this, almost as an afterthought. We would like to reverse that time-honored order because we owe such a special debt to the Microsoft Corporation. Without the commitment to the concept of the Rule of Law and the generous support of the Microsoft Corporation, including its former General Counsel, William Neukom, current General Counsel, Bradford L. Smith, and Deputy General Counsel, Nancy J. Anderson, this volume simply would not have been possible. The Rule of Law Program at Stanford Law School has enjoyed the support of the Microsoft Corporation since 2000. This volume is one of a series of products—publications, curriculum development, and research—that have been and will be produced as a result of that support. This volume grew out of the Microsoft-funded Rule of Law Workshop at Stanford Law School in 2001. We owe particular thanks to our authors, all of whom participated in the workshop and presented draft papers or ideas that would eventually be incorporated into the chapters that they have written for this volume. Each author has a distinguished record of contributions to the field. We feel fortunate to have recruited such a remarkable group to this project. We would also like to thank Stanford Law Faculty members Lawrence Friedman and Deborah Hensler, as well as Stanley Lubman, now associated with Boalt Hall, for their participation in and contributions to this workshop. Our thanks to the students who participated in the workshop and occasionally raised questions that could not be answered. The volume has benefited in numerous ways from a stable of first-rate research assistants, including Marta Poblet ( JSM ’01), Debra Ladner ( JD ’02), Curtis Renoe ( JD ’03), Adriana Camarena ( JSD candidate), and Henri Tijong ( JSD ’02). We are indebted to Tom Carothers of the Carnegie Endowment for International Peace and Rick Messick of the World Bank for carefully reviewing and providing useful comments on an earlier draft.

x Acknowledgments Support from the Initiative for Policy Dialogue at Columbia University made possible consultations with a small group of experts to discuss ruleof-law assistance programs and the conceptual underpinnings of this volume. We thank Kittipong Kittayarak, Bowornsak Uwanno, Anna Tarassova, Hamid Sharif, John Donohue, Linn Hammergren, Carmen Vargas, Lawrence Liu, Jim Klein, and William Klausner for their contributions during those consultations. At Stanford University Press, we owe thanks to Amanda Moran and Anna Eberhard Friedlander for their commitment to the project, good advice, and extraordinary patience. We are grateful to Stanford Law School for providing an institutional environment that encourages, if not demands, creativity and innovation, and to Dean Kathleen Sullivan for her personal support of the Rule of Law Program. We are indebted to Paul Brest, former dean of Stanford Law School and now president of the Hewlett Foundation, for his support as we developed the program. Support from the Coca-Cola Company was important for the early initiatives at Stanford Law School that underlay the Rule of Law Program. Finally, we want to thank our wives, Elizabeth and Barbara, and our families for tolerating and even supporting us during notable periods of absenteeism, as we continue to explore how law and legal institutions play into the reality of the political economies of developing countries.

Contributors

Erhard Blankenburg has been a professor of law at the Vrije Universiteit Amsterdam since 1980 teaching subjects related to the sociology of law and criminology. After teaching sociology and sociology of law at Freiburg University from 1965 to 1970, he served as consultant with the QuickbornTeam Hamburg until 1972, as senior research fellow at the PrognosAG Basel until 1974, at the Max Planck Institut Freiburg from 1974 to 1975, and at the Science Centre Berlin until 1980. Professor Blankenburg has published extensively on comparative legal cultures, police, public prosecutors, civil courts, labor courts, legal aid, and sociology of law. Donald C. Clarke has been a professor of law since 1988 at the University of Washington School of Law in Seattle, where he has taught classes in Chinese law as well as in the law of international economic relations, business associations, and property. Clarke has also worked as an attorney at Paul Weiss Rifkind Wharton & Garrison in New York, where he concentrated on China-related matters. He is a member of the Council on Foreign Relations and has published widely on the Chinese legal system. Héctor Fix-Fierro has been a full-time researcher at the Instituto de Investigaciones Jurídicas, Universidad Nacional Autónoma de México, since 1991. His main areas of research are judicial reform, legal change, and the legal profession. His doctoral dissertation, Courts, Justice, and Efficiency: A Sociolegal Study of Economic Rationality in Adjudication (Hart Publishing), is due to appear toward the end of 2003. Hualing Fu is currently an associate professor in the department of law at the University of Hong Kong. Fu has also taught at the City University of Hong Kong School of Law. He has conducted significant scholarly research and published widely in the areas of human rights in China, criminal justice

xii Contributors reform, dispute resolution, and cross-border legal relations between mainland China and Hong Kong. Marc Galanter is the John and Rylla Bosshard Professor of Law and South Asian Studies at the University of Wisconsin–Madison, and LSE Centennial Professor at the London School of Economics and Political Science. Galanter’s research on India spans studies of constitutional law, legislation, litigation, and lawyers in relation to social change. He is the author of Competing Equalities: Law and the Backward Classes in India (1984, 1991) and Law and Society in Modern India (1989, 1992). His work on litigation, lawyers, and legal culture in the United States includes pioneering studies on patterns of litigation, the impact of disputant capabilities in adjudication, the relation of public legal institutions to informal regulation, the growth of large law firms, and changing currents of American legal culture. Linn Hammergren is a senior public sector management specialist in the World Bank Latin America Regional Department, working in the areas of judicial reform and anticorruption strategies. Before joining the Bank, Hammergren spent twelve years managing Administration of Justice Projects for USAID in Latin America and headed the agency’s Regional Administration of Justice Project. Her recent publications include four manuals for practitioners on the lessons learned from Latin American judicial reform programs and The Politics of Justice and Justice Reform in Latin American: Peru in Comparative Perspective (Westview, 1998). Thomas C. Heller is the Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies at Stanford Law School and Senior Fellow of Stanford’s Institute of International Studies. He is co-director of Stanford’s Rule of Law Program and of the Stanford Program in Energy and Sustainable Development. Heller’s current teaching and publications relate to law and international political economy, focusing on comparative economic law in Europe, the United States, and Japan, and on doing business in developing economies. Heller has also published in the fields of legal theory, taxation and public finance, energy and climate change, and migration. He continues to work extensively with the Intergovernmental Panel on Climate Change on sustainable development and technology transfer. Erik G. Jensen is co-director of the Rule of Law Program at Stanford Law School and senior law advisor to The Asia Foundation, a San Francisco– based nonprofit that supports field programs related to the rule of law. Over the last eighteen years, including fourteen years spent living in developing

Contributors xiii

Asian countries, Jensen has worked on rule of law and governance programs in eighteen developing countries, mostly in Asia, but also in Latin America. Jensen’s teaching and publications focus on the rule of law, governance, law and international development, and Islam and the rule of law. Jensen also consults with international financial institutions and bilateral donors. Jayanth K. Krishnan is assistant professor of law at William Mitchell College of Law. Krishnan, a political scientist as well as a legal academic, has authored articles on public interest litigation and law in India, and he currently serves as a legal reform consultant to the Department for International Development (United Kingdom). Robert S. Moog is an associate professor in the Department of Political Science and Public Administration at North Carolina State University. Moog has been at North Carolina State since 1988 with a research agenda that has included work on judicial administration in the lower courts in India and judicial activism in the Indian Supreme Court. He has also conducted research on judicial selection in the United States. Moog is the author of Whose Interests are Supreme? Organizational Politics in the Civil Courts in India (AAS: 1997). Carlos Peña González has served as Dean of the School of Law at Diego Portales University in Santiago, Chile, since 1995. He has advised the Minister of Justice on judicial reform since 1994. Peña has published over 70 articles and three books. José Juan Toharia is a professor of sociology at the Universidad Autónoma de Madrid. Toharia has written and researched extensively in the fields of public opinion and the sociology of law. Toharia has directed and consulted on numerous research projects and opinion polls on perceptions of the judiciary and social attitudes toward the legal profession. Toharia´s contributions to the field of the sociology of law have also included six books and many articles, papers, and reports. Currently, Toharia is president of TNSDemoscopia, a leading Spanish public opinion research institute.

Beyond Common Knowledge

Introduction

erik g. jensen and thomas c. heller

as he looks out his chambers window at the parking lot below, a senior

justice of a Central American country asks, “Why is access to justice on the lips of so many reformers today? Look, we’ve got plenty of parking space. Access is no problem.” A multilateral development bank (MDB) makes a $20 million loan to a Latin American country for access to justice. The entire amount goes to building courthouses. The project is one example of what has become known as “the field-of-dreams approach” to strengthening the rule of law: build courthouses, and people will come and justice will follow. An appellate judge in an Asian country is asked whether he is concerned about the fairness of a judicial budget that allocates seventeen times as much in salary and benefits to appellate judges as it does to lower-court judges. Instead of expressing concern about the inequitable salary schedule, he responds, “Maybe someday some of these lower-court judges will be elevated to the appellate bench and can enjoy the fruits of their promotion.” For decades, the plaintive plea of judges across developing countries has been “Our backlog of cases is X thousands, X millions; give us more judges, more courtrooms, more resources.” 1 The implication: give us more resources, and we will deliver justice.2 As if to mimic a favorite line of the king of Siam in The King and I, the argument for more resources seems to end in “etcetera, etcetera, etcetera.” Beleaguered judges probably are not all wrong to request more resources; but it is impossible to assess how right they are without empirical analysis. Both in legal circles in developing countries and in international development circles, rule of law has become almost synonymous with legal and judicial reform. Basic questions about what legal systems across diverse countries actually do, why they do it, and to what effect are either inadequately

2 Erik G. Jensen and Thomas C. Heller explored or totally ignored. In developed and developing countries, larger questions about the relationship of the rule of law to human rights, democracy, civil society, economic development, and governance often are reduced to arid doctrinalism in the legal fraternity. And in the practice of the international donor community, the rule of law is reduced to sectors of support, the most prominent of which is the judicial sector. Investments in judicial-reform activities in developing countries have increased dramatically in the post– cold war rule-of-law era and continue to grow.3 Many of these expenditures have supported the reform of judicial infrastructure without questioning the assumptions that underlie that reform. During the last seven years, we have witnessed an explosion of literature related to legal and judicial reform. Yet very little attention has been paid to the widening gap between theory and practice, or to the disconnection between stated project goals and objectives and the actual activities supported. Theoretical advances have been made, and the policy rhetoric of international development agencies has become more refined. However, the practice of rule-of-law promotion, if resource allocation among MDBs is the test, has remained relatively static. Both the reform experience across countries and the international template for investments in judicial infrastructure, we think, should attract more critical and differentiated analysis. To what extent is or can support for judicial infrastructure be causally related to articulated goals? This focus generates a set of questions: • What are the prevalent hypotheses about the roles that courts are expected to play in improving economic growth and democratic politics? • How can these hypotheses be tested? • Is there empirical evidence that courts can play these roles? 4 Or do we expect too much from the formal legal system? • Is investing in judicial-reform projects a strategic way to get at the problems of governance that beset many developing countries? If so, how? If not, what are we missing? This volume brings together a group of leading empiricists from across Asia, Europe, Latin America, and the United States to suggest appropriate empirical ways to answer these questions and to reach at least tentative conclusions. The chapters in this volume address both basic questions about what legal systems actually do and larger questions about their relationship to economic, social, and political development. And all suggest, in a variety of ways, how to diagnose problems, develop baselines of performance, analyze the dynamics of reform, and measure and evaluate the development of legal systems. In this overview, we begin to highlight selected themes and lessons that can be extracted from the chapters in this volume and then sum-

Introduction 3

marize those chapters. We stress, however, that both the themes and lessons outlined and the summaries are only sketches: they do not do justice to the careful, detailed, subtle accounts found in the eleven chapters that follow.

Themes and Lessons At the very least, the chapters here encourage critical thinking about ruleof-law programs. A cautionary story that threads its way through this volume is that we need to adjust our expectations, to calibrate our goals and objectives, to reflect two realities: the impact of legal and judicial reforms generally is limited, and so are resources. With that understanding comes recognition of the importance of developing baselines that define what courts actually do; systematically collecting data and measuring progress against those baselines; identifying the installed base of legal institutions and behaviors, the legal culture; situating the judiciary—its constituencies and incentives—within other public and private, formal, semiformal, and informal institutions and networks; recognizing the possibility of dispute resolution processes that are not centered on the formal judicial system; and designing, monitoring, and evaluating reform projects with rigor. The agenda needs to be more focused and modest. For the most part, evidence of impact in reform initiatives is at an intermediate level: improving court management and efficiency and deciding cases that allow citizens to get on with their lives (family, small debt, and small property cases). Another intermediate-level outcome is improving the transparency of the courts, making information widely available about the operations of the judicial system. Essential to meeting this objective is a means of capturing statistics about how the courts work. Also essential are developing channels of communication—for example, annual reports on the judiciary and a Web site where decisions are published—and passing and implementing freedomof-information laws. Initiatives that increase the transparency of the courts contribute to an enabling environment in which broader governance reforms can take place. This is not to suggest that any or all of the information will be acted on, to increase judicial accountability, for example. But greater transparency at least increases the possibility that information will be acted on. The impact of this channel of development activity on broader governance issues such as political and economic liberalization is usually on the margins and in opportunistic circumstances where leadership seizes on a favorable environment in which to pursue a reform program. The essays in this volume take into account the inherent problems of comparative research on legal systems, which stem from many factors, including the different functions the systems and complementary institutions serve in different countries; the political economy of interests among con-

4 Erik G. Jensen and Thomas C. Heller stituencies and prospective constituencies inside and outside the legal system; 5 the accretion of doctrine-based expectations on the development of legal systems; the weak empirical basis that supports those expectations; and the disconnection between the articulated goals of projects on the one hand and the reality of the interventions on the other. All of these difficulties suggest the need to flesh out the framework within which we consider the development of legal systems and their substitutes. Some of the most innovative fieldwork is beginning to focus on the political economy of judicial reform and the relationship of the judiciary to economy and society, culture, and history. The postscript to this volume builds on that work to begin to develop a broader paradigm of governance. The paradigm incorporates the traditional understanding of rule-of-law reform; it also demonstrates its dependence on existing ecologies of institutions within which the operation of newly introduced rule-of-law programs must be understood. An ecology approach starts with the simple assumption that existing government institutions are shaped by a history of their own. As a result, rule-of-law reform always builds on an installed base of governance institutions. The installed base includes the interactions among formal, semiformal, and informal institutions and networks, and often is characterized by a more or less secure institutional equilibrium. Without a functional understanding of the installed base, reform is likely to disturb the equilibrium—at the peril of reformers.

Chapter Summaries 1. evaluating systems of justice through public opinion: why, what, who, how, and what for? In Chapter 1, José Juan Toharia makes the case for evaluating justice systems through public opinion polls, not simply to test a given system’s social legitimacy, but also as a means of reinforcing the rule of law. A major premise is that courts, like any public institution, should be held accountable along two vectors: technical efficiency and social legitimacy. To complement expert evaluations, Toharia calls for surveys of public opinion to help policymakers evaluate the degree of social legitimacy attained by the justice system. Toharia groups sources of opinion on the justice system into four main categories: operators, related professionals, actual users, and the general public (potential users). All of these groups have different levels of expertise in and knowledge of the judicial system. The operators consist mainly of judicial personnel, judges, and, in some contexts, public prosecutors. Related professionals includes attorneys, legal scholars, reporters who cover the courts, and legislators and other political actors. The two groups can provide needed

Introduction 5

technical and expert evaluation, feedback on the efficiency of the courts; but, as Toharia points out, professional assessments can’t speak to the trust and confidence judicial institutions inspire in the populace at large. Toharia demonstrates that technical efficiency and social legitimacy are not necessarily correlated. That is, a judicial system may enjoy a relatively high level of social legitimacy but still fail to achieve an adequate level of efficiency in the public’s mind. That situation, common in many European countries, creates difficulties for assessing and understanding a judicial system’s place in society and its role in strengthening the rule of law. To clarify this apparent paradox, Toharia lays out a framework of themes that opinion research could fruitfully explore. He breaks down efficiency into efficacy (the capacity to fulfill expected functions as measured by the professional competence of the judiciary and the speed of decision making) and effectiveness (roughly, the enforcement of judgments). Likewise, he divides legitimacy into independence, accessibility, impartiality, and accountability. To test its usefulness, Toharia applies this framework to his research experience in Spain. He describes several of the disparate ideas held by the general public and those who actually encounter and make use of the justice system. For example, users reported a higher level of satisfaction with the judicial system on a technical level than that expressed by the general public. In this instance, an opinion poll led to measures to bridge what was perceived as a communication gap between the job the courts were doing and the public’s understanding of the court’s performance. Toharia argues that the Spanish experience highlights the need to assess expert opinion versus public opinion, especially where the two groups do not share the same opinion of the courts’ efficiency or legitimacy. One theme that emerges from Toharia’s chapter (and from Chapter 3) is the much greater level of public support for high courts versus lower courts in many countries. Toharia cites a public opinion poll he designed in Spain in which only 19 percent of the population rated the overall performance of the judiciary as positive. Yet the public gave the courts— or at least the Spanish Supreme Court—high marks for credibility on variables like independence, fairness, and technical competence in protecting individual rights, even though the overall system was perceived as inefficient. The High Court’s legitimacy did not redound to the lower courts. Significantly, Toharia concludes that public opinion polls themselves can be instrumental in strengthening the rule of law. That is, poll findings can indicate items that need placing on the political agenda. Confronted with popular perceptions of the justice system, politicians and those responsible for the administration of justice will be forced to address misperceptions (a communications gap, for example) or to make the needed institutional or

6 Erik G. Jensen and Thomas C. Heller programmatic changes necessary to address the belief that the courts are not socially legitimate. 2. judicial systems in western europe: comparative indicators of legal professionals, courts, litigation, and budgets in the 1990s In Chapter 2, Erhard Blankenburg analyzes and compares statistical indicators of the legal systems of Austria, England, France, Germany, Italy, The Netherlands, Portugal, and Spain. He observes and accounts for differences in litigation rates, numbers of legal professionals, judicial expenditures, and the provision of legal aid services. Blankenburg acknowledges both the need for further work in these areas and the methodological challenges inherent in research that crosses national borders. Noting significant differences in the numbers of legal professionals across Western Europe, Blankenburg rejects the notion that these numbers correlate directly with a country’s level of economic development. He argues: “The statistics do not support the plausible hypothesis that a country’s social and economic strength would be an accurate predictor of its population of lawyers.” Instead he attributes at least some of the observed differences to definitional issues. For example, the number of legal professionals reflects that country’s definition of legal professional. Some countries report only practicing attorneys; others report law school graduates or all people qualified to practice law whether or not they are doing so. Blankenburg finds a similar problem in the statistics on types of cases. Again the numbers reflect each country’s method of counting cases: all cases filed, for example, versus cases actually heard. Increasing the challenge here are differences in the way the police, the prosecution, and the courts in the same country do their counting. These differences can help explain unexpected variations in litigation rates. Blankenburg notes that all Western European legal systems have experienced significant growth in recent years. He posits that understanding differences in rates of growth requires an analysis of the types of disputes that can result in litigation and the various out-of-court or simplified judicial procedures introduced to handle those disputes. He examines the interaction between caseload pressures on the courts and the emergence of alternative dispute resolution (ADR) methods, noting that the supply of and demand for ADR operate in mutual dependence to influence a country’s institutional and procedural landscape. When courts operate efficiently, they attract more cases, which eventually can create pressure on the system to streamline procedures and even to externalize certain disputes. Similarly, when the legal system is unable to meet demand, would-be litigants either lobby for improved services or create external mechanisms for settling dis-

Introduction 7

putes. Blankenburg recognizes that the gap between the demand for legal services and the supply of those services in the formal judicial system can be interpreted either as a barrier to access or as a responsible budgeting of limited resources depending on one’s policy orientation. Finally, Blankenburg discusses the relationship between legal systems and legal culture, particularly in terms of knowledge of and trust in legal institutions. He acknowledges that attitudinal differences about the rule of law exist, but he questions the extent to which they explain differences in legal institutions and behaviors among citizens. And he questions cause and effect: that is, do attitudes reflect the efficiency of the legal system? Or is it the other way around? In answering these questions, Blankenburg offers a multidimensional analysis that examines the interactions of historical, political, and institutional factors. 3. debased informalism: lok adalats and legal rights in modern india Marc Galanter and Jay Krishnan, in their chapter on India’s lok adalats, hypothesize that Indians avoid the courts, not because of delays or their own lack of “legal literacy,” but because “lawyers and courts are able to deliver so little in the way of remedy, protection, and vindication.” The lower courts, they insist, are tools used to delay justice, to postpone the payment of taxes or debts, to forestall eviction, to harass opponents, and, generally, to maintain the status quo. The result is a system of perverse incentives: those who have strong cases look for ways to settle them quickly; those with weak cases go to court to prolong the settlement process. The economic disincentives and risks involved in litigation in India, then, are considerable and often amount to what Galanter and Krishnan describe as a sunk-cost auction, in which competitors “invest ever-higher amounts in the hope of staving off larger losses.” In response to this situation, the judicial system has turned to ADR mechanisms. As a backdrop to their analysis of India’s lok adalats, Galanter and Krishnan trace the history of the panchayats—traditional forums where local leaders resolved disputes—and the mythology that surrounds paternalistic indigenous justice and celebrates conciliation and local responsiveness. Then they track the history of the empowerment of disadvantaged groups through judicial promotion of public-interest litigation and describe the limitations on that litigation. Finally, Galanter and Krishnan follow the evolution of the lok adalats, tribunals that came into existence in 1982 and that purportedly have resolved approximately 10 million cases since. As Galanter and Krishnan point out: “The most prominent and widespread expression of the new informalism is the proliferation of judicially sponsored lok adalats.” The lok adalats were intended to reduce congestion

8 Erik G. Jensen and Thomas C. Heller in the courts by diverting cases to other dispute forums. But the authors report that the majority of cases that come before the lok adalats are cases that otherwise would not be filed or heard. Galanter and Krishnan raise questions about the quality of hearing process in lok adalats: Are salient issues ventilated? Are the merits of the cases presented effectively? Do the forums probe and resolve conflicting assertions of fact? Do the resolutions embody legal standards, and how do these outcomes compare with the parties’ legal entitlements? Galanter and Krishnan also raise questions about the general effects of diverting claims to the lok adalats: Does diversion diminish the deterrent effect of awarding damages? Does it diminish the supply of precedents and so impede the development of tort doctrine and the expertise needed to be responsive to India’s industrializing economy? Does it free up the courts to decide other cases or handle other matters? Does it encourage repeat defendants—bus companies, for example—to take measures to prevent injuries? Galanter and Krishnan argue that lok adalats and the judicial promotion of settlements should be subjected to critical evaluation, even at a technical level. For example, lok adalats do not have even a rudimentary method of standardized record keeping. The authors conclude that lok adalats divert reform energy from the courts to a hugely imperfect substitute, which they characterize as “debased informalism.” They note that the central problem with the rush to informal dispute resolution in the absence of supportive empirical data “is the romantic illusion that effective informal justice is an alternative to a strong, proficient formal system rather than a by-product of such a system and could be enjoyed without the cost of repairing the formal system.” Instead, they argue, informal systems often work because parties can avail themselves of the remedies offered by the formal system. Informalism that functions in the shadow of the law is “useful informalism.” But the informalism represented by the lok adalats is “debased” because the courts are not a strong backstop to the informal system. 4. democratization of justice: the indian experiment with consumer forums In Chapter 4, Bob Moog analyzes India’s experience with consumer forums, which were established pursuant to the Consumer Protection Act of 1986. All countries have special tribunals for various types of cases. The creation of special courts, especially commercial courts and bankruptcy courts to deal with economic issues, was part of the standard reform package during the 1990s. Although international experience generally has demonstrated low success rates with those forums, Moog’s chapter suggests that the consumer forums may be having a positive impact on justice in India. Moog defines tribunalization as “the process of creating specialized forums

Introduction 9

to handle specific types of disputes within an adjudicatory framework, while reserving an ultimate appeal to the formal court system.” In India, these forums include, among many others, the Motor Vehicle Claims Tribunal, the Tax Appellate Tribunal, the Customs and Excise Tribunal, the Central Administrative Tribunal, and the Railway Claims Tribunal. Moog traces the evolution of the consumer forums—most came into being in the mid1990s— describing their structure and organization, jurisdiction, powers, procedures, and practices. He then asks whether they have improved access to justice and the quality of justice in India, and whether they in fact have strengthened liberal democracy there. In answering these questions, Moog considers how the adversarial nature of forum proceedings, particularly the participation of attorneys, has contributed to the problem of delay. The consumer forums are formal by design. Each district forum has a panel of three judges that takes evidence and otherwise exercises the powers of courts to serve subpoenas, engage in discovery, take affidavits, and requisition laboratory reports. As such, consumer forums are not really an alternative to the courts. They do not engage in mediation or arbitration; and they do not require pretrial settlement conferences of any sort. In fact, some suggest that consumer forums have developed their own ADR structures to overcome delay. Moog also considers the role of the consumer forums in the larger context of judicial reform, particularly their effect on reducing the burden on the civil courts and increasing access to justice. It is unlikely, he writes, that the forums substitute for actions disputants otherwise would bring to the civil courts. Smaller claimants would sooner “lump it” (that is, forgo court action) than submit to the process. As Moog notes: “Where a dispute involves Rs.1,300 from a dry cleaners for damage to a sari or replacement of a defective Timex watch, the costs of using the courts far outweigh any benefits that might accrue to the consumer three to five years into the future.” Moog also questions whether the establishment of alternative institutions might lessen incentives to reform core institutions, thereby creating a bifurcated system of justice. Such a system would grant specialized tribunals to those with sufficient political clout; those without would be left to the dysfunctional civil courts. Moog identifies three central issues in his analysis of the early history and successes of the consumer forums in India. First, civil society groups throughout the country often function as intermediaries. These groups act as consumer watchdogs, increase public awareness, and represent consumers. Preliminary evidence suggests that civil society groups also may help many parties reach a settlement without resorting to a consumer forum. Nongovernmental organizations, with motivations that differ from those of actors within the system, provide information to consumers on the likelihood

10 Erik G. Jensen and Thomas C. Heller of success, whereas private practitioners would take cases before forums even if the chances of winning were poor. Second, the consumer forums may offer lessons on constituency building. How were consumers as a group successful in lobbying for the creation of a specialized forum to deal with their issues? The answer to this question may provide insight into how individuals mobilize around important issues. Finally, Moog concludes that citizens prefer the more formal setting of consumer forums to lok adalats. Of course, problems persist, among them growing delays, the advantage repeat players (businesses) hold in their knowledge of the process and in their capacity to outspend most complainants, and the forums’ dependence on the civil courts to implement orders. 5. empirical research into the chinese judicial system Donald Clarke’s chapter strikes a cautionary note about what we know and can know about the Chinese judicial system. Clarke questions whether reform efforts directed at the courts are aimed in the right direction to bring about reform more generally in Chinese society. He points out that reliable data on the Chinese court system generally is not available and that the information that is available may not tell us what we think it does. The first step, then, is to carry out empirical research to complete the partial picture we have of the role and function of the Chinese legal system in society. Clarke cautions us not to adopt a court-centric perspective in that research, pointing out the roles that the procuracy, governmental and legislative legal affairs offices, legal services, and mediation and arbitration all play in the judicial system. Research into these components of the legal system of course should be complemented with an analysis of the courts; but he acknowledges that full and accurate information about court activities, personnel, and functions is difficult to obtain. For example, even getting a basic statistic like the number of judges in Chinese courts proves problematic, given that the cadre system of designation does not fully differentiate between sitting judges and other staff members and support personnel. It is also difficult, given the degree of regional variation in China, to analyze judges’ educational levels or their qualifications. For example, knowledge of corporate finance may be crucial for a judge in Shanghai but of nominal importance to a judge in Qinghai. In light of informational shortfalls, Clarke calls for developing more and better quantitative information on the actual functioning of the Chinese judicial system. In particular, he advocates two potential avenues of research: data about legal personnel, including data on their career paths, education, and income; and an analysis of the system of incentives operating to influence judicial decision making.

Introduction 11

6. putting china’s judiciary into perspective: is it independent, competent, and fair? Hualing Fu’s chapter on the Chinese courts in transition assesses the Chinese legal system using three criteria generally deemed important to the rule of law: independence, competence, and fairness. Instead of adopting a global approach to these components, however, Fu takes what he calls a casespecific approach to the general question of assessing the Chinese legal system. This method entails looking not only at the judiciary’s relationships with other government institutions but also at internal differentiation in the Chinese judiciary; and, most important, it means examining questions of the judiciary’s independence, competence, and fairness in light of the types of cases being adjudicated. Fu begins by highlighting the strategic way in which the judiciary responds to interference in judicial processes by different government institutions and actors, including the Chinese Communist Party, the People’s Congress, and the procuracy, all of which exert some form of influence in different areas. For example, the local Communist Party exerts control through various committees that oversee the appointment, review, and promotion of judges; set general legal policies and work priorities for the court; and control the court’s finances and budget. The People’s Congress requires the court to submit an annual report, has a hand in the appointment of key court administrators and officers, and even exerts a kind of judicial review of individual cases. The procuracy has general authority to supervise the work of the court, especially in criminal matters. All of these government institutions interact with local Chinese courts in significant ways that call into question the independence of the judiciary. Fu develops his differentiated approach through a discussion of the competence of the Chinese courts. Clearly, not all judges are equally competent or have the same education or experience. Fu groups the judiciary into three major bodies: former government bureaucrats and people recruited from society at large, demobilized soldiers, and law school graduates. Fu points to a current shift in power within the judiciary toward professionally educated judges. This shift points to changes in the demands made on the Chinese legal system: as more law school graduates enter the judiciary, legal expertise becomes more highly valued, and greater emphasis is placed on professionalism and procedural justice. An assessment of the overall quality of the Chinese judiciary should take into account internal conflicts and the divergent capabilities of these groups. Additionally, Fu addresses the internal court hierarchy and divisions within the court, each of which requires different attributes and skills and

12 Erik G. Jensen and Thomas C. Heller comes with a different degree of prestige. For example, criminal judges in general appear to have higher status and receive a disproportionately higher percentage of human resources than do civil judges, even though many criminal judges would like to transfer to what they see as the more lucrative civil or economic divisions. (Crime in China often is political; which means judges in the criminal division can face strong political pressure.) Also the power of the court president, who is a political appointee (often with little or no legal background), is key to understanding the daily operations of the court. The president and the Adjudicative Committee form an administrative body that has the power to make decisions and review important cases, even though the exact parameters of its powers are not spelled out in any detail and are largely left to convention. Fu then turns to one of the major contributions of his chapter: assessing the Chinese court system in light of the different types of cases being adjudicated. As laid out here, the court is not monolithic but can almost be considered to be different institutions nested within “the” court. The independence, competence, and fairness of the courts depend on whether they are addressing a criminal, civil, economic, or administrative case. For example, government institutions are far more involved in overseeing and influencing the adjudication of criminal matters than ordinary civil disputes. In light of such distinctions, Fu concludes with a call for a more-discriminating approach to assessing the Chinese courts. 7. economic and political aspects of judicial reform: the chilean case In Chapter 7, Carlos Peña González analyzes the surprising persistence of the judicial reform process in Latin America despite recurring failure. He underscores the donor agency’s problem with the participation of internal actors: “Public actors in the process declare the need for reform and enthusiastically commit themselves to seeing the process through. Then, like players in a Greek tragedy, they do what is necessary to ensure that the process fails.” One of the reasons for that, according to Peña, is the inherent agency problem that grows out of a “lack of differentiation of functions.” Those who design and implement reform processes—predominantly lawyers and judges—are those affected by the process. Accordingly, as Peña notes, it is a rational choice for those involved in the process to look for ways to profit from it. Peña argues that another barrier to reform can be traced to legal education itself. In many countries, legal education is weak and the strength of legal academicians is thin. Accordingly, academics are absent from or on the margins of the development of legal reform programs. One exception is Chile, where professional legal academics and social scientists were drawn

Introduction 13

into the Chilean criminal justice reform process to mediate the design of public policy and the production of social science research relevant to policy formation. Peña suggests that independent and truly professional legal academics can provide “the most objective criticism of the system of justice.” Peña’s experience corroborates the importance of legal education, and his chapter stresses the centrality of credible institutions of legal education to the success of the Chilean reform process. Although he recognizes the importance of civil society’s participation in reform processes, Peña does not embrace civil society organizations uncritically. He is concerned about the range of actors in judicial reform who represent themselves as members of civil society, warning that “the rise of a whole rash of reformers in the region of Latin America—who represent themselves as members of civil society—should be examined with care and without getting prematurely excited.” At the same time, Peña notes the key role played by Paz Ciudadana (Citizen Peace) Foundation, a civil society organization with strong links to powerful business and media and communications groups, in intermediating between parties in Chile’s recent criminal justice reform process. For reasons that Peña is still exploring, the foundation, with funding from the U.S. Agency for International Development (USAID), was successful in mobilizing both specific and generalized global interests and overcoming a powerful minority of conservative judges and lawyers. In considering the impact of the judicial reform process, Peña restates a critical question asked time and again during the compilation of this volume: could resources spent on legal and judicial reform be better spent elsewhere on improving governance? He suggests that a cost–benefit analysis of proposed programs would be a useful step in answering this question. As an example, he examines the costs and benefits of the Chilean criminal justice reform program: The resources saved by producing justice through negotiation 6 —in the case of Chile, approximately $312 million in public and private funds—should be weighed against the social benefit of complete condemnation: if society values that benefit (i.e., complete condemnation) more than the amount of resources saved, then the decision to consider negotiating mechanisms is less than ideal.

Peña is troubled by the lack of social-benefit analysis regarding the functions of the legal system. He questions which functions are public goods and which are not. He also considers whether private or public financing is more appropriate for providing judicial services.7 The traditional rhetoric of lawyers and judges conceives of all legal activities as a public good “that once produced, benefits a wide range of consumers whether or not they have paid for it.” The market, then, would not be a suitable mechanism for providing

14 Erik G. Jensen and Thomas C. Heller legal services because people would lack incentives to pay for services and would wait for others to pay for them. The mainstream model considers justice a public good to be delivered by public officials and financed by taxpayers, with no apparent pricing barriers to accessing those services. Peña notes, however, that an examination of the empirical evidence in many civil and most commercial cases is that justice does not constitute a public good. 8. judicial reform in mexico: what next? Héctor Fix-Fierro’s chapter, a case study of judicial reform in Mexico, traces changes in the Mexican judicial system over the past two decades. After a long period of neglect under decades of authoritarian rule, the Mexican judicial system emerged as a key element in plans to revitalize the economy during the 1980s, and much money was poured into the system. Legal reform and the development of a state based on the rule of law (estado de derecho) became topics of popular discourse and sentiment. The visibility and role of the courts in public life, especially the Supreme Court, increased markedly. Particularly in the wake of the judicial reform project launched in 1994, the speed of reform hastened significantly. That project centered on the idea that lasting political and economic change require ancillary reform of the legal institutions and structures needed to consolidate change. Largely because of the financial crisis that hit Mexico in 1995, reform plans were relegated to a less prominent position. The economic reform program and the increasing viability of competition among political parties heightened the profile and visibility of judicial reform on the political and social landscape. It also revealed the fundamental weaknesses of the Mexican legal system to a public that had growing expectations of the system. Despite the stop-and-go efforts at legal reform in Mexico, Fix-Fierro speculates that the courts and legal reform will continue to assume a more prominent place in public discourse. Courts will become a more visible part of the political agenda, as the legal system’s capacity to deal with political and economic transition is revealed with greater clarity and specificity. FixFierro recognizes that significant structural and institutional reforms have occurred in Mexico, but notes that the human resources element, specifically in the area of legal education and the legal profession, has failed to see changes that would lead to the development of more-robust rule-of-law structures. A central question posed by Fix-Fierro, then, is whether the institutional and organizational components of judicial reform, together with their social and professional environments, provide appropriate incentives for developing judges who will perform according to the new standards and institutional structures. After tracking the development of legal reform in Mexico over the past several years, Fix-Fierro concludes that the reform process will continue in

Introduction 15

Mexico but at its own pace. He offers several areas to be addressed by future reforms, including improving access to courts and other justice institutions, developing greater accountability and transparency, introducing procedural reforms (especially ADR), reforming judicial education and legal training, and reforming the legal profession more generally. Fix-Fierro places a special emphasis on the last two reform topics. He acknowledges that a time for sweeping changes like those that were initiated in 1994 may not recur in the current political climate. He discusses a politically charged case regarding foreign investment in the power sector (decided in April 2002) that many suggest shows the continuing influence of the Partido Revolucionario Institucional (the PRI, the political party that controlled politics in Mexico for decades, until Vicente Fox’s election in 2000) on the Supreme Court’s behavior. Nevertheless, Fix-Fierro is hopeful that efforts to bring about significant judicial reform may succeed by altering the traditional role of courts, the judicial system, legal education, and the legal profession in Mexican society. Among other sources of hope, he points to the passage in Congress in April 2002 of the Federal Law on Transparency and Access to Public Governmental Information, which requires the government, including the federal judiciary, to make available to the public information about its internal operations and budgets and specifically obliges the federal judiciary to publish all final decisions. 9. international assistance to latin american justice programs: toward an agenda for reforming the reformers Linn Hammergren’s chapter provides insights into the political economy behind judicial reform programs, focusing primarily on USAID and World Bank projects in Latin America. She notes that USAID, “the donor with the longest and most diversified history in judicial reform programs,” has maintained a human rights and criminal justice focus since it began working in the sector. USAID programs traditionally have sought to advance democratic development by reducing human rights violations, increasing access to justice, strengthening justice-sector institutions, and decreasing impunity. Although Latin American countries generally have seen some improvements in these areas, Hammergren admits that program outputs are difficult to pinpoint and measure, in part because of the weak empirical basis for comparison. The World Bank, an MDB whose assistance has primarily been in the form of medium-sized investment loans or projectized lending, has avoided criminal justice, “focusing instead on commercial and civil law reform and general strengthening of court systems.” Because the World Bank traditionally has worked almost exclusively with government partners, it has faced

16 Erik G. Jensen and Thomas C. Heller difficulties in project implementation due to “an institutional turf war” between the executive and judicial branches. Partly in response to public criticism, the bank recently instituted more innovative programs, including funding for civil society groups and general legal education, support for provincial courts, and research initiatives on court users; and revised its consensus-building strategies. Hammergren questions the link between the bank’s program goals and project activities, noting that design processes fail to question untested assumptions and conventional wisdom regarding judicial reform. Furthermore, she candidly notes the “near absence of rigorous, systemic evaluations” of World Bank projects. In reviewing the past two decades of donor-assisted judicial reform, Hammergren observes that donors’ internal problems prevent cooperation among donors, resulting in “redundancy and conflict.” While acknowledging that judicial reform programs have fallen short of their stated objectives, Hammergren recognizes their partial success in providing infrastructure and equipment, drafting new codes, exposing participants to new ideas, and supporting legal practitioners and scholars. Still, Hammergren questions whether funds spent on legal reform might be better spent elsewhere. Hammergren suggests that answering this question requires identifying best practices and reexamining basic assumptions in light of lessons learned. Competition among donor agencies and a lack of well-informed external critics have prevented this from happening. Hammergren warns that carrying on the reform business “without attempting to consolidate these lessons is an invitation for continued waste.” At least with respect to improving mainstream practice, she writes, “What needs to be done is obvious. Both donors and national counterparts have to become more serious about articulating their strategies, specifying their working hypotheses, and evaluating program results. How this can be accomplished is the puzzle.” 10. the rule of law and judicial reform: the political economy of diverse institutional patterns and reformers’ responses In Chapter 10, Erik Jensen attempts to bridge the gap between theory and practice by comparing two competing strains in the literature: (1) claims about the role of independent formal judiciaries in the context of a new global constitutional order predicated on political and economic liberalization, and (2) the actual record of accomplishments of legal and judicial reform projects. His hope: that a more-nuanced understanding of international donor assistance will contribute to an understanding of why, when, where, and how reform interventions can make a difference. Jensen begins with the recent history of legal and judicial reform, discussing why momentum for rule-of-law programs has grown so rapidly in

Introduction 17

recent years. He then describes the standard legal and judicial reform package introduced by international development agencies and the constituencies that are and are not partners to it, and why. And he addresses the underlying political economy of institutional reform, focusing on the problems associated with reform constituencies and the perverse incentives they face. Jensen goes on to examine the success and failure in legal and judicial reform as a whole, drawing special attention to the allocation of resources at the project level. The focus here is on resource-intensive investments in courthouses, computer systems, court management, and training. Jensen is skeptical about the idea that support for the judiciary necessarily translates into fewer human rights abuses, faster economic growth, and more-robust democratic participation. The evidence that such goals are being met is either weak or mixed; although there is cause for optimism that the standard package of judicial reform can strengthen a “thin” rule of law by improving judicial efficiency and transparency. Finally, Jensen suggests an agenda of empirical analysis of dispute resolution forums, monitoring, and evaluation that could improve the standard package of judicial reform. This research, he suggests, can help set baselines for planning and evaluation, and target incentives and interventions. He predicts that this research also will be necessary so that donors can demonstrate that they have exercised due diligence. 11. an immodest postscript Tom Heller’s postscript is meant more to provoke than to define the path ahead. It builds from the core ideas of thick and thin definitions of the rule of law, the standard package of reform, and judicial centrism to speculate about how these basic concepts might be incorporated in future reform programs. Heller suggests that the interaction of law, democracy, and development theory has led to a particular thickening in the operative meaning of the rule of law, and that, when considered systematically in relation to the four functions of law arising in development theory, the record of rule-of-law reforms still looks highly uneven. Heller argues that to go beyond this uneven performance, it may be necessary to abandon what has been a primary strategy of rule-of-law programs—giving political priority to programs that are locally “owned” by leading actors in the host country’s legal system. Urging an increased focus on the complex relationships between law and different systems of political economy, the provocation centers around three linked propositions. First, because the legal cultures that inform the norms and expectations of legal actors usually have evolved under organizations of state and society at odds with those implicit in rule-of-law reform, displacing these habits and interests may be more realistic in new than in existing legal

18 Erik G. Jensen and Thomas C. Heller institutions. Second, although it is almost universally assumed that law services should be organized through a public monopoly, Heller argues that the same principles of competition that underlie market-centered economies generally should be accorded greater weight in the legal sector. Third, governance through law is normally only one element in a wider portfolio of substitutable mechanisms for carrying out the various functions development requires. By recognizing that law services are a scarce resource, that they should be used only when other public and private substitutes would be less effective, the rule of law can stop placing the unrealistic demands on the courts that result in formal, ineffective, and delegitimating change.

Conclusion Through the cumulative and comparative work that these chapters represent, we hope that we will contribute constructively, yet critically, to an understanding of what courts and their alternatives actually do; what courts and their alternatives can reasonably be expected to do; and why, when, where, and how reform interventions can make a difference. That so little global experience in this area has been informed by empirical work suggests a strong case of the true believer in the doctrinal quality of previous efforts. Eric Hoffer, in his classic The True Believer: Thoughts on the Nature of Mass Movements (1951), marveled at the true believer’s ability “to shut his eyes and stop his ears” to facts that do not deserve to be seen or heard which is the source of his unequaled fortitude and constancy. He cannot be frightened by danger nor disheartened by obstacles nor baffled by contradictions because he denies their existence. . . . And it is the certitude of his infallible doctrine that renders the true believer impervious to the uncertainties, surprises and the unpleasant realities of the world around him. (80)

We hope that the chapters in this volume shed light on the unpleasant realities of the record in the field of legal and judicial reform and reveal the cracks in what seemed to be infallible doctrine. As Deborah Hensler (2001) observes when urging an empirical rather than doctrinal approach to the analysis of legal systems, “Simply relying on ‘common sense’ will not do, because common sense—however common—is often wrong” (8).

Notes 1. In India, for example, an estimated 38 million cases are pending in the district courts, the high courts, and the Supreme Court. At the current disposal rate, as-

Introduction 19 suming no new cases, it would take the courts in India 324 years to clear their backlog (Debroy 2000). India may break records for being the country longest aware of the need to reform its lower courts without doing anything substantial about it. See the Rankin Committee Report (1924 –1925), which extensively analyzes the problems of the lower courts and offers prescriptions to address those problems. Also see the Asian Development Bank and Asia Foundation study (2001), in which the data show that in Pakistan, cost, not delay, is the most significant barrier to access to justice for the poor. 2. The common perceptions and supply-side solutions prominent among lawyers, judges, and donors find a corollary in education literature. In the United States it was assumed that investment in education would eradicate social, economic, and political gaps that separate blacks from whites, blue-collar workers from professionals, and men from women. Yet how this investment actually achieves these purposes was treated as a black box, in which capital needs, when met, simply snap things into place. Paul Willis (1981) opened the black box and exploded this myth through a careful ethnography of what actually happens to working-class children when the schooling apparatus is brought to bear on the target population. For a lucid discussion of Willis’s work, see Ferguson (1994). 3. Messick (1999) notes that most of the MDB experience in this sector ($500 million) was made in twenty-six countries during the late 1990s, although the U.S. Agency for International Development had substantial experience ($200 million) before this as well. 4. Until our empirical understanding of the connection between law and economic activity becomes much deeper, Messick’s (1999) use of Albert Hirschman’s (1994) observation of the “on-again, off-again” connection between law and economy is probably the best characterization. This is but one dimension of a debate that continues even among economists over the relationship among growth, governance, and openness. See Levine and Zervos (1993), who argue that “a wide assortment of fiscal, monetary and trade-policy indicators have very fragile relationships with long run growth” (428). 5. Political economy, of course, examines the process of production and distribution of resources. What are the social and political processes that influence economic outcomes? What are the roles of economic agents and institutions? 6. Other measures in Peña’s cost-benefit analysis include the reduction of arbitrary detention by police to no more than twenty-four hours; the provision of alternatives to preventive detention during trial; the reduction by half of the minimum penalty for many crimes; and suspending trials for first-time offenders in certain crimes. 7. A social-benefits model can be a useful heuristic tool. The model poses a spectrum of choice: At one end, private goods and their benefits are financed as a public good, which distorts the market, and subsidizes and encourages litigation beyond an efficient point. At the other end, privatizing justice is also a threat. If justice is financed wholly by private individuals, then the number and diversity of suits will be below the optimum, and society will be deprived of important social benefits from litigation. The private optimum and the social optimum may differ because the

20 Erik G. Jensen and Thomas C. Heller litigant is not the only one who enjoys the benefit of litigating. Part of the benefit is a public good. This justifies the state’s financing that portion of the benefit and charging the taxpayer to reach the social optimum. See, for example, Shavell (1997).

References Asian Development Bank and The Asia Foundation. 2001. Supporting access to justice under the local government plan in Pakistan. Study presented to the government of Pakistan. Debroy, Bibeck. 2000. In the dock: Absurdities of Indian law. Delhi: Konark. Ferguson, James. 1994. The anti-politics machine: Development, depoliticization, and bureaucratic power in Lesotho. Minneapolis: University of Minnesota Press. Hensler, Deborah. 2001. The contribution of judicial reform to the rule of law. Paper presented May 10 at the World Bank Conference on New Approaches for Meeting the Demand for Justice, Mexico City. Hirschman, Albert O. 1994. The on-and-off connection between political and economic progress. American Economic Review 84, no. 2: 343 –48. Hoffer, Eric. 1951. The true believer: Thoughts on the nature of mass movements. New York: Harper & Row. Levine, R., and S. Zervos. 1993. What have we learned about policy and growth from cross country regressions? American Economic Review 83, no. 2: 426 –30. Messick, Richard. 1999. Judicial reform and economic development: A survey of the issues. World Bank Research Observer 14: 117–36. Rankin Committee report. 1924 –1925. Cited in Justice K. N. Saikia, Report on modernisation, court management, and alternative dispute resolution in civil judicial process (1996). Shavell, Steven. 1997. The fundamental divergence between the private and the social motive to use the legal system. Journal of Legal Studies 26: 575 – 612. Willis, Paul. 1981. Learning to labour: How working class kids get working class jobs. New York: Columbia University Press.

ch apter

Evaluating Systems of Justice Through Public Opinion: Why, What, Who, How, and What For?

1

josé juan toharia

Of all the controls of judicial activity, that by public opinion is among the most effective. —Max Rheinstein, Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound

The first step in solving any problem is to find out what the problem is,— or, in the case of social and political problems, what the people believe the problem is. —S. M. Lipset and W. Schneider, The Confidence Gap

the idea that in a democratic polity, courts of justice, like all other in-

stitutions exercising state-backed authority, should be held accountable for their overall performance is slowly gaining acceptance.1 That acceptance has come despite the resistance usually shown by the operators of the judicial system—particularly judges—both in developed countries with wellestablished rule-of-law systems and in countries striving to strengthen democracy and the rule of law. Judicial actors seem to fear that systematic evaluation of their performance could give social and political forces new controls over judicial activities, threatening judicial independence. Additionally, according to Baldwin (2002), they believe periodic evaluations are “part of a general drive to increase the efficiency (or ‘productivity’ as it is more pejoratively known) of the courts. This, they say, is an example of the unhealthy and inappropriate incursion of ‘managerialism’ into the administration of justice” (2).

22 José Juan Toharia However, the increasing and changing role of the courts in contemporary democratic societies lends credence to the argument that some kind of assessment of the way in which the courts succeed— or fail—at their functions ought to be established.2 The reasons are threefold. First, fundamental to democracy is that all institutions that exercise power or authority must account for the use they make of it. Second, the predominant perception today is that courts are public institutions, funded with public money, performing a highly strategic public service. Because “public funds are finite and the provision of resources for the courts has to compete with other areas of public expenditure, ‘justice’ cannot be achieved at any cost. Nor can the pursuit of ‘justice’ be used as an excuse to exclude the courts from reasonable measures of public accountability” (Baldwin 2002, 2).3 Third, courts are service organizations; and like other service organizations, they should respond to the consumer’s needs. Today it is openly acknowledged that most courts organize to the convenience “of judges, of court staff, and of lawyers; usually in that order. If the convenience of the public is considered at all, it comes well behind these courthouse ‘regulars.’ . . . Yet no consumer-oriented establishment could set its priorities in this way. . . . With the exception of the prison service and perhaps a few unrepentant social welfare organizations . . . no organizations . . . appear to be quite as cavalier about their clientele as are the courts”(Church 1990, 7). As the scope of the judicial system has expanded, its lack of responsiveness is no longer acceptable. Traditionally, just a fraction—and usually a socially marginal fraction— of society came in contact with the courts. Most regular users were brought to court by force to answer for criminal charges, and most came from lower social groups. People belonging to more affluent groups might make occasional use of judicial institutions as a strategic alternative in the management of their private conflicts, mainly over commercial matters. This is no longer the situation: today people from almost all social strata are likely to have some contact with the system of justice.4 And as the sphere of the courts has expanded to include the protection of individual rights and liberties, a “consumer-oriented model of Justice” is emerging. That model sees “law and Justice no longer within the framework of the traditional conception—the official conceptions of the rulers, governors and other officials—but rather on the framework of a more democratic conception, that of the consumers of law and government . . . at whose service only the system of Justice must work” (Cappelletti 1989, 112 –13). An example comes from England, where impressive changes in the attention paid to court users are taking place in the wake of two influential reports by Lord Woolf (1995, 1996). As Baldwin (2002) notes, “It is hardly an exaggeration to say that the court user is now being viewed as the very rai-

Evaluating Systems of Justice Through Public Opinion 23

son d’être of the courts” (4).5 And, as Sir Andrew Leggatt (2001), points out in his recent review of the system of justice in England and Wales, courts “exist to serve the users, not the other way round. . . . They should do all they can to make themselves understandable, unthreatening and useful to users” (43). If responsiveness to users’ needs and expectations—and by extension to the needs and expectations of average citizens—has become a goal of judicial systems, it also has become a criterion for gauging the performance of those systems. That is, any appraisal of user-centered systems of justice must examine the extent to which they succeed— or fail—to meet the needs and expectations of the citizenry.

The “Publics” of the Justice System Whether the evaluation of a system of justice is entrusted to an external, independent agency or to some state or state-related organ or institution,6 it must rely heavily on the information provided by four basic types of publics: operators, related professionals, actual users, and potential users (see Table 1.1). All have a contribution to make to the global assessment of court performance based on their different perspectives, levels of information and technical expertise, and degrees of social representativeness. The operators of the judicial system—mainly judges and key court personnel, although public prosecutors also can be included in this group—are professional insiders.7 Judicial operators tend to believe that they are the only ones qualified to evaluate their own performance, and that additional or alternative evaluation is both misinformed and potentially damaging. In fact, many judicial operators seem to consider themselves owners, not just managers, of the system of justice. A second group of experts, whose members find themselves in an antagonistic but interdependent relationship with operators, is composed of related professionals. This group includes attorneys, legal scholars, media reporters, and legislators and other political actors.8 The members of this group do not occupy official adjudicative or organizational positions within the system of justice, which means they are external to that system. But they do maintain, directly or indirectly, a regular professional relationship with that system. Their opinions and appraisals, then, can be expected to complement and/or qualify those of the judicial operators. Operators and related professionals, together, provide an informed perspective; theirs are expert evaluations. Theirs also can be—at least in part— biased evaluations, tainted by their vested interest in and their emotional or ideological attachment to the status quo. After all, whatever the merits or shortcomings of the system under evaluation, those who operate that system

24 José Juan Toharia or who are directly related to it must be given at least some of the credit or the blame. Bias is a factor that must be taken into consideration in weighing the testimony of judicial operators and related professionals. One source of that testimony is a content analysis of the experts’ writings and public statements about the judicial system. But comparative research demands a more systematic and comprehensive methodology. Focused or in-depth interviews with key figures in the operator and related-professional groups, and opinion surveys using formal questionnaires of representative or strategic samples of the groups’ members are particularly effective strategies.9 In addition, detailed analyses of available statistics can be undertaken to complement, substantiate, qualify, or even contradict the experts’ appraisals and evaluations.10 The last two publics—users and the general public—are not related professionally to the system of justice. Users, however, can base their opinions on limited but firsthand experience of the system. To a certain extent, then, their perspective also can be considered an insider’s perspective.11 As more or less regular consumers of judicial services, users are in a position to express their degree of satisfaction or dissatisfaction with the way in which the system of justice has responded to their specific demands. In a citizenoriented system of justice, their opinions and evaluations should be a primary source of information on the quality of judicial services. To date, user surveys are being conducted only rarely; but we can expect the systematic evaluation of user satisfaction to grow dramatically as the ideal of a citizenoriented system of justice gains acceptance.12 The fourth public is the general public, the potential users of the judicial system. Many question the relevance of what these people have to say about the system of justice. These critics of public opinion polls insist that legal and judicial matters are too complex and remote to allow average citizens to form meaningful opinions of them. In fact, critics have long expressed reservations about public opinion and opinion polls generally (for example, see Blumer 1948; and Bourdieu 1973/1984, 1979).13 Proponents of public opinion polling would argue that in a democracy, citizens have the right—they are even encouraged—to express their opinions about the institutions of government whatever their experience of those institutions. As evidence, they point to voting as an expression of opinion that reflects ideological and attitudinal alignments however imperfect or rudimentary. The link between voting and public opinion was made forcefully by former British prime minister James Callaghan (1976 –1979): “If people cannot be trusted with opinion polls, they cannot be trusted with the vote” (cited in Taylor 1998, 977). Ultimately the value of public opinion on the judicial system may rest on the structure of the instruments used to gauge that opinion. When polls fo-

Evaluating Systems of Justice Through Public Opinion 25

ta b l e 1 . 1 Relevant Publics and the System of Justice: Status and Technical Knowledge Position vis-à-vis the system of justice

Internal External

Level of technical knowledge High

Low

Operators Related professionals

Users General public (potential users)

cus on the functional aspects of the courts, they tend to overemphasize technical and procedural dimensions, things about which average citizens are not particularly knowledgeable. Not surprisingly, some experts would question the relevance of opinions gleaned from people who do not really know what they are talking about.14 It may be that public opinion on the courts would appear more relevant if, as is argued in the next section, opinion surveys were larger in scope; that is, if in addition to the efficiency of the system of justice, they also considered its social legitimacy. But the moral reliability of the system rarely is considered when an evaluation of the courts is undertaken, and that is a mistake. The courts are not simply technical entities functioning in a sociopolitical vacuum. The courts form part—a significant part— of the political system. Any evaluation of the system must address the procedures and operations of the courts; but it also must address the level of trust and credibility the judicial system inspires in the average citizen. The assessment of that sociopolitical dimension falls under the full competence—in fact, the exclusive competence— of the citizenry. And that makes public opinion polls a particularly important instrument in any evaluation of the courts. Table 1.1 shows both the relationship of each public to the system of justice and the technical knowledge each public has of that system. Judicial operators and related professionals have greater technical knowledge of the courts but are less representative of society as a whole than are users and potential users.

Key Variables: The Efficiency and Social Legitimacy of the Courts The performance of courts should be evaluated along the same two basic dimensions used to evaluate all other political institutions: their degree of efficiency and their level of social legitimacy.15 The term efficiency encompasses two different though closely connected elements: the perceived efficacy of the system of justice, its ability to devise

26 José Juan Toharia timely and adequate responses to the problems it is called on to solve; and the effectiveness of the system, its capacity to implement those responses successfully. An efficient institution—a court system, in this case—must be both efficacious and effective. Social legitimacy, on the other hand, refers to the level of auctoritas enjoyed by judicial institutions; that is, their capacity to engender the belief that they deserve obedience and respect. In this sense, legitimacy is equivalent to social trust and credibility (Linz 1978). A certain level of social legitimacy is a necessity for a system of justice.16 If courts do not manage to convey to the public a basic feeling of trust and credibility, they cannot perform their functions effectively. Dispensing justice is not just a technical transaction but an act with deep cultural implications. Ultimate justification for the state’s monopoly on all forms of legal force rests on its commitment to provide in exchange a caring, fair, and effective judicial response to every case: “As a consequence of the decisions of a judge, citizens lose their liberties, their property and their children. This is indeed an awesome power, and to enable that power to operate effectively we are obliged to hold on to this image of the judicial process as one which transcends the foibles and flaws which afflict ordinary individuals” (Loughlin 2000, 62).17 The evaluation of the courts’ efficiency primarily calls for expert assessment, although the perceptions of potential and actual users of judicial services do deserve consideration. At the same time, there can be little doubt that the evaluation of the social legitimacy of a system of justice can be based only on what Bentham called the “tribunal of opinion”—that is, the views of the citizenry (typically expressed through reliable opinion polls). In a democratic system, citizens are the only dispensers of legitimacy. With an appropriate set of indicators, it is possible to measure the current level of social legitimacy held by a judicial system (we discuss this below). More difficult is determining when and how social legitimacy originates. Explaining why people believe in the legitimacy of a given institution “is almost as difficult as explaining why people believe in particular religious dogmas, for, as is the case with religious beliefs, the degree of understanding, of skepticism and faith, varies widely across society and over time” (Linz 1978, 18). Social legitimacy is not so much an objective institutional feature as something that “is granted or withdrawn by each member of society day in and day out. It does not exist outside the actions and the attitudes of individuals” (17). In this sense it can be described as a shared social belief that originates at a point in time but over time may disintegrate. Social legitimacy can never be taken for granted; nor can its duration be guaranteed. The overall legitimacy of a system of justice originates with the political system to which it belongs. A major political change, then—for example, the inauguration of a democratic regime—would signal the symbolic reinau-

Evaluating Systems of Justice Through Public Opinion 27

guration of the courts; that is, it would allow the courts to reclaim the social credit they may have lost as a consequence of their connection to the nowabolished nondemocratic system. But symbolic reinauguration rarely takes place automatically. That the system of justice gets assimilated ipso facto into the new democratic order may not suffice to provide it with new capital of social trust and credibility. Why? One reason is that in almost all cases of transition to democracy, neither the structure of the courts nor their staffs have changed significantly. For example, despite the democratic governments that came to power in West Germany and Italy at the end of World War II, we have no documentation that large numbers of judges in those countries were forced to leave the bench.18 The same is true of Spain and Portugal in the late 1970s, Russia in the 1990s, and Peru in 2001, as the governments in those countries moved toward democracy. One explanation for this pattern is that all of these countries were civil law countries. In a civil law system, the administration of justice is supposed to be “person-proof ”—subject only to the tenets of statutes and laws.19 In that type of system, a change in the ideological orientation of the laws at least in principle might seem sufficient to guarantee a change in the ideological orientation of the courts. Choosing to recycle the judicial system, then, instead of to rebuild it, generally appears to be a more cost-effective and expeditious alternative. A direct consequence of the recycle-versus-rebuild decision is a kind of probationary period: at least for a time, the citizens remain suspicious of the system and unsure that real change has taken place in the thinking and practices of a judiciary staffed with most of the same people who had served as judges before the political change took effect. The probation ends when some significant event takes place that symbolizes a new beginning for the judicial system. That event might be the appointment of a respected individual as chief justice; the handing down of what the public perceives to be the right sentence in a highly publicized case; or the implementation of an eye-catching innovation in the structure of the courts. Only when an event with strong positive impact happens can the symbolic reinauguration of the courts finally take place.20 After the inaugural moment, of course, the future performance of the system of justice will determine whether the renewed capital of legitimacy increases, stays the same, decreases, or even disappears. One example of symbolic reinauguration and its revitalizing effects comes from post-Franco Spain, where the system of justice managed to achieve new social legitimacy in 1980, just two years after enactment of a democratic constitution. The event that triggered the symbolic reinauguration was the Spanish Supreme Court’s landmark decision in a highly sensitive case that came to symbolize a clean break from the Francoist system of justice.21 The whole system of justice benefited from the ensuing whitewash

28 José Juan Toharia ta b l e 1 . 2 The Efficiency and Social Legitimacy Dimensions Social legitimacy Efficiency

High Low

High

Low

A C

B D

effect of the decision, and the social legitimacy of the Spanish judicial system today can be traced to that moment. In post-Communist Hungary, the performance of the Constitutional Court may well have had a positive effect on the image of the country’s entire judicial system.22 In 2001, the system of justice in the former Soviet Republic of Georgia may have received a trust-and-credibility boost when a court handed down a highly publicized decision finding for a pensioner who had dared to sue his former employer, the KGB.23 In Russia the new arbitrash courts also seem to have benefited from an injection of social legitimacy. That credibility, though, has yet to be extended to the rest of the Russian judicial system, where no symbolic reinauguration has taken place.24 The courts’ lack of credibility poses a serious handicap to the democratization process and to the strengthening of the rule of law in Russia. Facing the same handicap are post-Fujimori Peru and most of the Latin American countries that recently returned to democratic rule. But the increasing social profile and popularity of a few scattered judicial figures in Peru, Chile, and Argentina, for example, may well pave the way for a symbolic reinauguration of the systems of justice in those countries too.25 It is important to note that although the public’s evaluations of a judicial system’s efficiency and of its legitimacy tend to be associated, the two evaluations do not necessarily correlate positively: a good rating on one of the dimensions does not necessarily imply a good rating on the other. Table 1.2 shows the four basic combinations of ratings along the efficiency and social legitimacy dimensions. Cell A represents the highest ratings; Cell D, the lowest. Table 1.3 assigns dominant feelings and attitudes to each of the basic rating combinations.26 So, for example, citizens who evaluate a judicial system’s efficiency and credibility positively are likely to identify with the system and to be loyal to it.27 We would expect to find widespread identification with and loyalty to the judicial system in Finland, where 61 percent of respondents to public opinion polls indicated that they believe their court system performs well and that they trust the system (Table 1.4). The polls, which were conducted in European Union countries, also found the high efficiency–

Evaluating Systems of Justice Through Public Opinion 29

high credibility combination in Denmark (54 percent–70 percent) and in Austria (52 percent– 61 percent). Those who have a low opinion of the courts’ efficiency but a high opinion of their social legitimacy are likely to feel disappointed in the system but to still express loyalty to it. That would be the case in Greece, for exta b l e 1 . 3 A Basic Typology of Social Attitudes Toward the System of Justice Citizens’ evaluation of the system of justice in terms of its Efficiency

Social legitimacy

Resulting dominant feeling

Expected dominant attitude

High Low High Low

High High Low Low

Identified Disappointed Diffident Alienated

Loyalty* Voice*/loyalty Voice/exit* Exit/refusal to enter

*Concepts as defined by Hirschman (1970).

ta b l e 1 . 4 Public Opinion on the Efficiency and Social Legitimacy of Systems of Justice, European Union Percentage of respondents in each country indicating they believe their courts

Finland Denmark Austria The Netherlands Luxembourg Germany Sweden Ireland United Kingdom Greece Spain Belgium France Portugal Italy

Operate efficiently*

Have social legitimacy †

61 54 52 45 41 39 38 33 33 23 17 17 14 13 8

61 70 61 59 59 52 53 49 48 55 40 22 35 42 38

s o u r c e : Eurobaromètre (1997, 1999). *The poll, conducted in 1997, asked respondents about the performance of the courts. † The poll, conducted in 1999, asked respondents about their trust in the court system.

30 José Juan Toharia ta b l e 1 . 5 Public Opinion on the System of Justice in Spain, 2000 Social legitimacy Efficiency

High Low

High

Low

Identified 41% Disappointed 32%

Diffident 11% Alienated 16%

s o u r c e : Toharia (2001). n o t e : The table is based on the answers to two questions: (1) How would you rate the global performance of the courts in Spain today: very good, good, poor, or very poor? Answers “very good” and “good” were grouped, as were answers “poor” and “very poor.” Respondents answering “so-so” (a category not offered but expressed spontaneously by a sizable 30 percent) were added to the “very good–good” group. This is obviously a debatable decision, but it seemed reasonable to interpret the answer as a strongly qualified, even reticent, positive evaluation. (2) To what extent do you agree with the statement “Whatever its shortcomings and inadequacies, our system of justice provides the ultimate guarantee of democracy and public liberties”: fully agree, agree, disagree, or fully disagree?

ample, where 55 percent of respondents to public opinion polls said they trust their courts, but only 23 percent believe the courts operate efficiently (see Table 1.4). Those who have a high opinion of the courts’ efficiency but a low opinion of their legitimacy are likely to feel diffidence about the system and to express that hesitation by wavering between open criticism (voice) and alienation (exit). We would have expected this kind of response from most citizens in South Africa under apartheid. Finally, when citizens believe that their system of justice is neither efficient nor legitimate, they feel alienated from it and, as much as possible, refuse to make use of it. This might be said to be the situation in Russia and in several other countries that are struggling to fully establish the rule of law. Notice that we are talking about dominant feelings and attitudes. Citizens’ responses to a system of justice are unlikely to be unanimous: in any country, at any time, levels of social support and trust in the system vary. Table 1.5 shows a recent distribution of public opinion on the courts in Spain. A plurality— 41 percent of respondents—indicated that they believe the courts in Spain are both efficient and credible: these people identified with their system of justice. An additional 32 percent, although they trusted the courts were disappointed with the system’s performance. Just 11 percent of respondents fell into the diffident category, pleased with the operations of the courts but finding them lacking in credibility. Just one of every six respondents—

Evaluating Systems of Justice Through Public Opinion 31

16 percent—was alienated. These people found the Spanish system of justice sorely lacking in both efficiency and social legitimacy. Clearly the typological approach used in Table 1.5 allows a more nuanced description of public opinion than does the list of data in Table 1.4.28 That the level of identification is significantly higher than the level of alienation indicates that on the whole, the Spanish system of justice is relatively healthy. And once the government successfully implements new policies meant to improve the system’s efficiency, the country should see a substantial shift from the “disappointed” category to the “identified” category, and a corresponding increase in social support for the system.

Public Opinion Research on the Courts: A Protocol Again, determining the efficiency of a system of justice requires an examination of the system’s efficacy and effectiveness, a wide range of factors that can be expected to affect the ability of courts to carry out their functions. Among those factors are the professional competence of judges, their interest in and dedication to cases, the resources (staff, facilities, technology) at their disposal, and the timeliness with which sentences are pronounced and enforced. On the other hand, to be perceived as legitimate, a system of justice must be considered trustworthy; it must inspire credibility. The key components here are the system’s perceived judicial independence, accessibility, impartiality, and accountability. Judicial independence is a prerequisite of a democratic system of justice: courts must be independent, not for the sake of independence, but to protect and ensure their impartiality and fairness.29 Judicial independence originally was intended to protect judges against threats and undue pressures from the parties (Shapiro 1981). In time the battle for judicial independence took on a new focus: protecting judges from government interference in the way they apply the law (Griffith 1977/1991). Today, in countries where democracy is well established, particularly in Western Europe, judicial independence is acquiring an additional meaning: total autonomy of the courts to scrutinize the legality of government policies and actions (Salas 1998)—a step, according to García de Enterría (1999), that may mark the transition from the rule of law to the rule of justice. Judicial independence, then, is a complex, multidimensional concept. Basically it refers to the need for the courts to function without the interference of government or powerful social and economic groups. But the public perception of judicial independence is always tainted somewhat by the fact that the original legitimacy of the courts was linked directly to that of the political system. Even today “the intersection of Law, Courts and poli-

32 José Juan Toharia tics . . . is ubiquitous,” although “the paths by which Law, Courts and politics come together vary dramatically from country to country” ( Jacob 1996, 1). This might explain the ambivalence with which average citizens, particularly in civil law countries, evaluate the prevailing levels of judicial independence.30 Even a reasonably independent system of justice is likely to appear as imperfectly independent if the standard of comparison is full and total judicial independence, a metaphysical impossibility. In measuring this aspect of the courts’ legitimacy, then, pollsters must word questions carefully, using realistic parameters. The second component of social legitimacy is accessibility —that is, the social inclusiveness of the system of justice. An accessible system is open to all individuals and social groups on equal terms: no individual or group has special access to its services, and those services are not tailored to serve the special needs of any individual or group. The general perception of accessibility is key to the legitimacy of any public institution (Almond 1956).31 A large set of factors, quite diverse in nature, can restrict or impair access to the courts, among them geography, procedural technicalities, jargon, and cost. The protocol that begins on page 33 attempts to summarize some of these elements. If the concept of judicial independence points predominantly to the relationship between the system of justice and the political system, the concept of impartiality applies to the relationship between the courts and the litigant parties. From a structural point of view, the expression impartial judicial system means a “socially representative judicial system”—that is, a judiciary staffed so that no major social group or sector is systematically and purposely ignored or underrepresented. A body of judges, male and female, drawn from different age groups, social classes, ethnic and religious groups, and regions of the country, is likely perceived to be—and effectively is— closer in ideologies and attitudes to the general public, fostering a sense of affinity to that public. From a functional point of view, impartiality implies the absence of corruption in all forms and at all levels. Corruption is a complex phenomenon to assess, although combined methodologies, like those used by the nongovernmental organization Transparency International, can provide reasonably accurate estimates of its prevalence.32 Of course, no system of justice— and, by and large, no public or private institution— can be expected to be, or be perceived to be, corruption-free. Also, the term can be vague. In the real world, many instances of corruption have become almost invisible, accepted as routine.33 Absolute impartiality—like absolute judicial independence—may well be unattainable. But the courts can always be expected to be more impar-

Evaluating Systems of Justice Through Public Opinion 33

tial, as they can always be expected to be more independent. Any assessment of a system of justice along these two dimensions, then, must consider two qualifying factors: • The higher the levels of independence and impartiality in the courts, the higher the public’s expectations: As actual standards of judicial independence and fairness go up, so do social expectations. • The higher the levels of independence and impartiality in the courts, the stronger the social reaction to an occasional breach: Paradoxically, there appears to be less social tolerance for deviations from independence and impartiality norms when deviations are less frequent. The exceptional seems to generate more of an uproar than the usual—probably a function of the invisibility factor noted above. Finally, the fourth component of social legitimacy is accountability: mechanisms that make the system of justice responsible for its overall performance. Again, courts are public institutions that use public resources to provide a strategic public service, and that means they must be audited regularly. And, again, the issue here is not the way in which the courts deal with a particular case; it is the way they generally carry out their assigned functions. What follows is an outline not unlike the one used to develop the survey questions in the appendix to this chapter. The two primary dimensions— efficiency and social legitimacy—are listed, as are the six subdimensions and indicators of each subdimension. The numbers in bold correspond to the survey questions in the appendix that measure the given indicator. Of course no survey can measure every indicator of efficiency and credibility in a system of justice. Hammergren (1999), for example, omits several of the indicators shown below and adds others. But the list here substantially parallels the fifteen key issues identified at a national conference in 1999 on trust in the justice system in the United States.34 Most important, the indicators in this outline clearly differentiate the nature and social consequences between the factors related to the efficiency of the judicial system and those related to the system’s social legitimacy. I. Introductory/preliminary topics • Global image of justice in society and in the media (5.22, 10, 10A) • Familiarity with the courts (31, 32) II. Efficiency • Introductory evaluation: overall performance of the courts and comparisons over time and with other institutions (1, 2, 3)

34 José Juan Toharia A. Efficacy 1. Judges’ professional competence • Means at the disposal of the courts (e.g., availability of technical assistance when needed) (5.4) • Training: adequate/inadequate, updated/outdated, in touch/ out of touch with social and legal changes (5.5, 5.25) • Soundness, coherence, and predictability of judicial decisions (5.9) • Judges’ dedication to (interest in and time spent on) their cases (5.19) 2. Timely sentencing • Speed and promptness of court proceedings; perceived reasons for slow sentencing (5.1, 5.6, 5.10, 5.11, 5.13, 11) B. Effectiveness 1. The enforcement of sentences and other court actions • Perceived delays in the implementation of sentences (globally and by type of court or type of cases) (5.15) • Perceived interest and efforts of judges to have their decisions implemented (5.12) III. Social legitimacy • Introductory evaluation: comparisons with other public institutions and social groups (4, 5.24) A. Independence • General perception of the courts’ independence (13, 13A, 14) • Perception of attempts to influence the courts on the part of the media, social and economic groups, and the government (15) • Perception of the degree to which such attempts are successful (16) B. Accessibility • Language/jargon perceived as a barrier (5.2, 5.28) • Easy access to the courts when needed (for protection) (5.14, 5.29, 6, 7) • Physical access to the courts: geographic distribution of the courts and accessibility within the premises (5.30) • Personal accessibility of judges and other court personnel (5.18) • Costs of all types (5.13, 12) • Availability of legal aid (5.31) • Information services available for users in the courts (5.21) • Citizens’ predisposition to cooperate with the courts and the legal system (27, 27A)

Evaluating Systems of Justice Through Public Opinion 35

C. Impartiality • Honest/fair performance (5.7, 5.8, 5.17, 5.20, 5.27, 8, 9, 23) • Internal pluralism of the judiciary (24, 24A) • Judicial mentality and ideological alignments (5.16) • Perception of the existence or likelihood of corruption or bribery (5.23, 18, 19, 20, 21, 22) • Preference for judge or jury trial (when applicable) (25, 26) D. Accountability • General perception of accountability (17) • Responsibility of courts and judges for wrongdoing (28, 29, 30)

Using Public Opinion Regular and careful monitoring of opinion states —prevailing patterns of opinion—about the system of justice can prove useful in a number of direct and indirect ways. Systematic comparison in as many directions as possible — cross-temporal, cross-national, cross-institutional— of opinion data from representative samples of both the general public and legal professionals can clarify issues, uncover tensions, and provide a sound foundation for reform. And the introduction of opinion data in the public debate on the system of justice is likely to contribute, directly or indirectly, to the expansion and strengthening of a rule-of-law culture, without which a well-performing system of justice is unlikely to ever consolidate. public opinion versus expert evaluation The systematic combination of expert evaluations—those of judicial operators and related professionals—with the evaluations of users and potential users of the courts can be likened to the cross-examination of all the relevant witnesses to the efficiency and social legitimacy of the judicial system. Each group has a story to tell from a different perspective (insider versus outsider) and with varying degrees of technical knowledge (high versus low) (see Table 1.1). Table 1.6 summarizes the four basic results of combining expert and lay appraisals of the efficiency and social legitimacy of the system of justice.35 Cells A and D represent clear-cut situations: both experts and laypersons agree in their evaluations of the courts’ efficiency or credibility. That is, a basic consensus—for good or bad— exists. All four publics agree that the system should be maintained as it is (Cell A) or that it needs wholesale changing (Cell D). The opinions of experts and laypeople diverge in Cells B and C. Likely products of that divergence are misunderstandings and tensions between le-

36 José Juan Toharia ta b l e 1 . 6 Expert Evaluation and Public Opinion on the Efficiency and Social Legitimacy of the System of Justice Expert evaluation Public opinion

Positive

Negative

Positive Negative

A C

B D

gal professionals and the general public. In time, if no action is taken, tensions can erode the stability of the system of justice. To prevent that, policies must be devised to bridge the gap between expert and lay perceptions of the courts. But those policies will be effective only if the meaning and implications of each instance of divergence are understood. The cases depicted in Cells B and C are ambiguous: the findings could reflect several alternative combinations of opinion. For example, suppose the issue is the social legitimacy of the courts. Cell B describes a situation in which experts ( judicial operators and related professionals) believe the system lacks credibility, whereas actual and potential users believe the system is trustworthy. These findings create a problem for policymakers. When there is a conflict between expert and lay opinions, which opinion should be given more weight? We can identify at least two different ways of thinking about the findings. On the one hand, it could be argued that because social legitimacy is dispensed by the public, the public’s identification with the system of justice means that for all practical purposes the system is socially legitimate—whether the experts agree or not. On the other hand, an argument can be made that the expert diagnosis is more reliable: if the experts see pervasive flaws in a system of justice— even though those flaws are not being detected by occasional users and potential users of the courts—then that system is not legitimate. How to explain what would seem to be ill-founded popular support for the system of justice? Noelle-Neumann (1984) would blame the “spiral of silence”: the intimidating effect that the perception of what others think can have on individuals’ willingness to reveal their own opinions. In a social climate of misinformation and intimidation, people are likely to respond to surveys with answers that are politically safe. Now, suppose a survey asks about the social legitimacy of the courts, and the responses resemble those in Cell C: the experts believe the system is credible, but actual and potential users do not. Again, at least two explanations could be advanced for the lack of consensus. The first questions the

Evaluating Systems of Justice Through Public Opinion 37

motivation of the experts. If they are vested in the status quo, they aren’t likely to be critical of it or to support change in the system. This was probably the situation in South Africa in the early 1990s. The second explanation acknowledges the experts’ familiarity with the system of justice. It may be that they are seeing the positive results of earlier reforms and feel, justifiably, that the system has become credible. The general public, yet to notice the changes, still perceives the system of justice through clichés and stereotypes. In this system, the symbolic reinauguration has yet to take place, and, consequently, the public has yet to change its collective mind on the social legitimacy of the system. When the research topic is the efficiency of the system of justice, again the data can be interpreted differently. Cell B describes a situation in which laypersons believe the system is efficient but the experts do not. In this instance policymakers are likely to come down on the side of the experts. Why? Because effectiveness is a characteristic that professionals—people in direct daily contact with the courts—are in a better position to evaluate. Their diagnosis seems in principle more credible. And how to explain the popular diagnosis? Here, too, the spiral of silence could be at work: people simply may be afraid to answer truthfully. When the issue is the efficiency of the courts, the findings reflected in Cell C are fairly common: judicial operators and related professionals tend to be positive, but their evaluation is not shared by the general public. In this instance, one of at least three factors may be at work: a problem of credibility, a problem of communication, or a technical problem in the measurement of public opinion. If the public doesn’t agree with the positive assessment of the experts, the problem may be a credibility gap between the experts and the users and potential users of the system. One source of that gap could well be the public perception that experts have a vested interest in the courts as they are. Whether that perception is true or not, clearly some action is needed to bridge the gap. A second factor could be a communication problem. It may be that the public is not being adequately informed about the level of efficiency in the courts and so tends to respond to surveys in clichés. It usually takes time for stereotypes to change. Just a small fraction of the population is in regular contact with the courts and likely to have firsthand experience of reforms; the rest must rely on public statements and reports for information that will lead them to question their previous point of view. If judicial reforms are not publicized, they may go unnoticed for some time. One source of the communication problem between the courts and the general public is that the vast majority of courts do not have mechanisms in place for routinely disseminating well-documented, reliable information to

38 José Juan Toharia the public. In fact, judicial operators almost everywhere shun contact with the media, behavior that is as unlikely to rally support for causes as it is likely to be interpreted as secretiveness.36 For average citizens, the media are the basic source of information on the system of justice (and most other issues).37 But their coverage of the courts often is inadequate and even one-sided, the result not so much of an attempt to manipulate the news as of the criteria they use to determine what is newsworthy.38 The courts may not be able to influence what the media choose to cover, but they can see to it that reliable information is available to the media. Keeping the media informed is in the public interest: it is the best way to keep citizens informed about significant issues.39 The third possible source of the conflict in Cell C is a technical problem in measuring opinion states. The quality of a mirror image depends on the quality of the mirror: a cracked, distorted glass can only reflect a broken, distorted image. Certain types of questions—for instance, questions with no context, questions that are too generic or too abstract or too technical— tend to elicit answers that reflect all the worst stereotypes about the efficiency of the courts. Even the form of a survey can distort the findings. The face-to-face interview that follows a formal questionnaire sets up a stimulus–response situation: respondents are expected, even encouraged, to say whatever comes to mind first. In the case of public institutions, good performance tends to be taken for granted; it’s invisible. So the first response to a question is likely to be reflexive, this cliché or that stereotype. It is critical, then, that the interviewer force the respondent to focus, to really think about each question. Surveys about judicial processes almost inevitably touch on technical matters, on procedures and organization. These questions need particularly careful preparation. A complex topic must be broken down into as many dimensions and subdimensions as needed, each item phrased as clearly as possible, to be sure the respondent understands what’s being asked. Only if the questionnaires that collect public opinion are designed well can the opinions they measure be trusted. That’s particularly true when lay opinion diverges from expert appraisal. The appendix to this paper includes a core set of questions that can be used to build detailed and systematic questionnaires for comparative research. opinion polls and strengthening the rule of law The availability of regular and reliable opinion data on the system of justice also can prove instrumental, directly or indirectly, in strengthening the rule of law, particularly in emerging democracies. Public opinion certainly cannot be expected to reveal truths or to pro-

Evaluating Systems of Justice Through Public Opinion 39

vide solutions: it is simply the expression of basic social feelings and attitudes. An opinion survey is not an oracle; it is a social thermometer, measuring social climate and detecting attitudes. In this sense, opinions are symptoms; confronted with those symptoms, policymakers must interpret them and set about providing remedies. Public opinion defines issues; in a democratic system, it also corresponds to the popular will and can fuel the social momentum that eventually can result in increased acceptance and social support for reform policies (Rose-Ackerman 1999). Judicial authorities usually are not enthusiastic about opinion surveys on the image of the courts. They often fear what they consider an exercise that can only produce political ammunition for their critics. They ask: Why invest money, time, and effort listening to voices that are most likely to be critical? The obvious answer is that in an open society—a society driven by public opinion—institutions are in a much better position to improve their image and standing if they know how they are perceived and rated by their “significant others,” those who are likely to have an influence on their fate. Understanding perceived flaws and shortcomings gives judicial authorities the ability to plan and then take corrective action to counteract erroneous stereotypes, to devise and organize communication policies meant to improve the social perception of the actual operations of the courts. Particularly when the legitimacy of the courts is in question, surely an informed reaction is preferable to passivity or resigned aloofness. The rule of law cannot function if citizens do not identify with its principles or trust its institutions or simply perceive that it exists. Regular surveys of public opinion are invaluable to take the pulse of the rule of law.40 The system of justice must be responsive, consumer-oriented. It must take into account the citizens’ expectations of it and reactions to it. And if it does, the public’s perception of the institution will change; the public’s trust and confidence in the courts will grow, which in turn will increase the social legitimacy of the institution and reinforce the rule of law itself.41 Ultimately the goal of judicial reforms—particularly in emerging democracies—must be to strengthen the rule of law. To that end, reforms cannot consist only of institutional and procedural changes that are basically technical in nature. They also must create a new legal culture: “The rule of law must also exist in the consciousness of the people. There must be a culture of respect of the rule of law. The culture may be invisible, but is critically important: without it, people, society and governments cannot, ultimately, survive” (Wolfensohn 2001). In that culture, • the law, which represents the actual will of the majority, is supreme. • all individuals and institutions are equal before the law. • the system of justice is fair, accessible, independent, and reliable.

40 José Juan Toharia Changing the rules of the game is not enough: word of changes has to be spread, and indications that changes are credible and effective have to be made. Communication policies must open the courts, must make them available, and must encourage more accurate reporting on the part of the media. And then the public must be polled again to gauge the success of all these efforts.42

Appendix: A Standard Questionnaire on the Social Image of Systems of Justice This is a draft of a standard questionnaire. It takes the set of topics and indicators from the outline that begins on page 33 and develops questions for opinion research on a system of justice. Both product and process rely heavily on the author’s experience over the last two decades conducting opinion research on the Spanish system of justice; the questionnaire also borrows items and questions tested in opinion polls carried out in several other countries, among them the United States, Italy, and France. The questionnaire is meant to be an example of a core set of indicators that allow systematic comparison of different systems of justice. It obviously needs to be adapted to each particular case: topics may need to be reformulated, expanded, or replaced with other, more significant local issues. And, of course, questions have to be reworded so that they make sense in the particular context in which they are being applied. Opinion research that allows the systematic comparison of institutions of justice is a difficult endeavor, requiring a delicate balance between two competing aims: the production of as large as possible a body of comparable data, to increase the understanding of the processes, mechanisms, and consequences of the social perception of the justice system; and the assurance that any analysis will not result in the distortion—however unintended or unconscious— of the true meaning and significance of the social reality under consideration through the mechanical application of a standardized instrument.

Evaluating Systems of Justice Through Public Opinion 41

1. Generally speaking, how would you describe the current performance of the courts in this country? a. Very good (Go to 2.) b. Good (Go to 2.) c. “Neither good nor bad” or a similar intermediate type of answer (Go to 1A.)* d. Bad (Go to 1A.) e. Very bad (Go to 1A.) f. Don’t know/no answer (Go to 2.)* 1A. (Interviewer: Ask only of persons answering “neither good nor bad,” “bad,” or “very bad” in 1.) Did you have any particular type of court in mind when you gave your answer? a. No, I did not have any particular type of court in mind. b. Yes, I was thinking of __________. (Interviewer: Note the answer.) c. Don’t know/no answer* 2. Thinking back two or three years, would you say that on the whole the functioning of the courts in this country has tended to improve a lot, improve somewhat, remain basically the same, deteriorate somewhat, or deteriorate a lot? a. Has improved a lot b. Has improved somewhat c. Has remained basically the same d. Has deteriorated somewhat e. Has deteriorated a lot f. Don’t know/no answer* 3. How would you rate the current performance in this country of ___ ___________. (Interviewer: Ask in turn about the items in Table A.1, rotating the order you use.) Please express your rating with a figure between 1 and 5, with 1 being “very bad” and 5 being “very good.” 4. On the whole, how much trust and confidence do you have in _____ ____________. (Interviewer: Ask about the items in Table A.2, rotating the order you use.) Please express your feeling of trust and confidence with a rating between 1 and 5, with 1 being “very low” and 5 being “very high.” 5. For each of the following statements, please tell me if you strongly agree, somewhat agree, somewhat disagree, or strongly disagree. (Interviewer: Ask about the items in Table A.3, rotating the order you use.) * Interviewer: Do not read or offer this alternative. If the respondent volunteers an answer like it, make a note of it.

ta b l e a . 1 Responses Institutions

1

2

3

4

5

DK/NA

5

DK/NA

Parliament (or Congress) The civil service The national (or federal) government The system of justice The municipalities (or cities) The regional (or state) government i n t e r v i e w e r : Ask only about relevant institutions.

ta b l e a . 2 Responses Institutions or groups

Parliament (or Congress) Labor unions Ombudsman The national (or federal) government The civil service The municipalities (or cities) The Supreme Court The police The medical profession The courts in your community Business people The church (or religious authorities) Public schools Social security Politicians Banks NGOs The military The press/media Political parties The president (or king or queen) i n t e r v i e w e r : Ask only about relevant institutions.

1

2

3

4

(1) As a rule, courts do not resolve cases in a timely manner. (2) The language and the proceedings in the courts are so complex that it is almost impossible for the average person to understand them. (3) The costs of going to court are so high that it makes good sense to avoid using the courts. (4) The system of justice does not have the resources it needs to perform its functions adequately. (5) As a rule, judges are well trained and competent. (6) The courts are so slow that their use should be avoided as much as possible. (7) Judges generally are honest and fair in deciding cases. (8) In general, judges are impartial; that is, they are not biased in favor of or against any of the parties. (9) The courts tend to rule consistently; that is, they usually resolve similar cases in a similar way. (10) Courts adequately monitor the progress of cases to avoid undue delays. (11) Delays in the courts only benefit unscrupulous people. (12) As a rule, judges do not concern themselves with the implementation of their rulings. (13) A consequence of delays in the courts is that often people litigate just to gain time, not to have their disputes resolved. (14) In our country today, those who believe that their constitutional rights are being threatened can turn to the courts for protection. (15) Often, winning a case does not mean very much because judges’ decisions are rarely enforced adequately or at all. (16) Judges tend to be out of touch with what goes on in our society. (17) In our country today, criminal laws are applied equally to all, whatever their social condition.

Statements

Strongly agree

ta b l e a . 3

Somewhat agree

Somewhat disagree

Responses Strongly disagree

(continued )

DK/NA

(18) As a rule, court personnel are helpful and courteous. (19) Often judges do not devote adequate time and attention to individual cases. (20) The courts are basically at the service of the powerful and influential, not of ordinary people. (21) Courts tend to be organized for the convenience of the litigants. (22) The media’s portrayal of our system of justice is mostly accurate. (23) Instances of corruption in our courts are so rare that on the whole they are corruption-free. (24) In spite of its shortcomings, our system of justice represents the ultimate guarantee of democracy and personal freedoms. (25) Our judges on the whole are as competent as those of any neighboring countries. (26) Courts make reasonable efforts to ensure that individuals have adequate attorney representation. (27) When a person sues a corporation, judges generally find for the corporation. (28) The way court rulings are worded makes them difficult for ordinary people to understand. (29) I could represent myself in court if I wanted to. (30) In our country, courts are not evenly distributed between urban and rural areas. (31) Poor people should receive legal aid from the state when they need to go to court to fight for their rights. (32) In our country all people have equal access to the courts, whatever their race, gender, religion, or socioeconomic class.

Statements

Strongly agree

ta b l e a . 3 (continued) Somewhat agree

Somewhat disagree

Responses Strongly disagree

DK/NA

Evaluating Systems of Justice Through Public Opinion 45

6. In your opinion, when trying criminal cases, should judges be concerned primarily with protecting the rights of the person accused or with protecting the rights of the victim? a. Protecting the rights of the accused person b. Protecting the rights of the victim c. “Protecting the rights of both equally”* d. Don’t know/no answer* 7. And in actual practice today in this country, do you think judges in criminal cases are concerned mainly about protecting the rights of the accused person or with protecting the rights of the victim? a. Protecting the rights of the accused person b. Protecting the rights of the victim c. “Protecting the rights of both equally”* d. Don’t know/no answer* 8. In your opinion, would you say that in this country today, the courts end up finding for the right party in all or almost all cases, in the majority of cases, in half of the cases, in fewer than half of the cases, or in almost no cases? a. In all or almost all cases b. In the majority of cases c. In about half of the cases d. In fewer than half of the cases e. In almost no cases f. Don’t know/no answer* 9. In your opinion, to what extent—a lot, a little, or not at all— do each of the following factors explain why judges might find for the wrong party? (Interviewer: Ask in turn about the possible factors in Table A.4.) 10. On the whole, how would you describe the current condition of our system of justice? a. Modern and totally adapted to the needs of today’s society (Go to 11.) b. Essentially modern but in need of some updating (Go to 11.) c. Modern in some aspects and outdated in others (Go to 10A.) d. Essentially outdated and in need of important reforms (Go to 10A.) e. Outdated and in need of a thorough modernization (Go to 10A.) f. Don’t know/no answer (Go to 11.)* * Interviewer: Do not read or offer this alternative. If the respondent volunteers an answer like it, make a note of it.

46 José Juan Toharia ta b l e a . 4 Responses Possible factors

A lot

A little

Not at all

DK/NA

(1) Lack of interest on the part of the judges, who do not always make the effort to fully understand the cases they try (2) Lawyers’ tendency to complicate and confuse the issues (3) The complexity of judicial proceedings (4) Judges’ caseloads, which prevent them from spending time on any particular case (5) Litigants’ attempts to influence judges (6) Litigants’ interest in winning versus helping judges discover the truth (7) The technicalities and procedures that tie judges’ hands (8) The courts’ lack of resources to clarify the issues in cases (9) Some other reason (Interviewer: Note the answer.)

10A. (Interviewer: Ask only of persons answering c, d, or e in 10.) When you say that our system of justice is essentially or totally outdated, what aspects of the system do you have in mind? (Interviewer: Note all answers.)

11. How quickly or slowly would you say that the courts in this country deal with each of the following types of cases? (Interviewer: Ask in turn about the items in Table A.5.) Please express your opinion with a rating between 1 and 5, with 1 being “very slow” and 5 being “very fast.” 12. Going to court implies certain costs—not all financial—for the average person. To what extent—a lot, some, a little, or not at all— do you think each of the following factors contributes to the costs of going to court for people like you? (Interviewer: Ask in turn about the items in Table A.6.) 13. Do you strongly agree, somewhat agree, somewhat disagree, or strongly disagree with the statement “As a rule, judges make their decisions independently, with no outside influences”? a. Strongly agree (Go to 14.) b. Somewhat agree (Go to 14.)

Evaluating Systems of Justice Through Public Opinion 47

ta b l e a . 5 Responses Types of cases

1

2

3

4

5

DK/NA

Family law (divorce) Minor crimes Small claims Major crimes Administrative (cases against a state organ or agency) Juvenile delinquency

ta b l e a . 6 Cost factors

A lot

Some

A little

Not at all

DK/NA

(1) The time to resolution (2) The complexity of the law (3) The personal time required (4) Attorneys’ fees (5) Court fees (if applicable) (6) The difficulty of understanding the proceedings or the ruling (7) The stress of going to court (8) The lack of reliable and easy-tounderstand information about the judicial process (9) Uncertainty about the result of the proceedings

c. Somewhat disagree (Go to 13A.) d. Strongly disagree (Go to 13A.) e. Don’t know/no answer (Go to 14.)* 13A. (Interviewer: Ask only of persons answering c or d in 13.) Which of the following factors do you think contribute to judges’ lack of independence? (Interviewer: Ask in turn about the items in Table A.7.) 14. In this country today, if a judge finds against what appears to be the government’s interest, how likely is the decision to affect his or her future in the judiciary? Very likely, somewhat likely, somewhat unlikely, or very unlikely? a. Very likely b. Somewhat likely * Interviewer: Do not read or offer this alternative. If the respondent volunteers an answer like it, make a note of it.

48 José Juan Toharia ta b l e a . 7 Responses Factors

Yes

No

DK/NA

(1) Judges’ lack of institutional authority (2) Judges’ focus on maintaining the status quo for the powerful and influential (3) Legal constraints on judges’ decision making (4) Fear of job-related consequences (5) Some other reason (Interviewer: Note the answer.)

ta b l e a . 8 Likelihood that judges will be pressured Source of pressure

Very likely

Somewhat likely

Somewhat unlikely

Very unlikely

DK/NA

The government The media Socioeconomic groups Higher-ranking judges The governing body of the judiciary (where applicable) Plaintiffs Defendants Organized crime

c. Somewhat unlikely d. Very unlikely e. Don’t know/no answer* 15. A distinction has to be made between attempts to pressure judges and instances where those attempts have been successful. In the first place, in your opinion, how likely is it—very likely, somewhat likely, somewhat unlikely, or very unlikely—that judges in this country today are under pressure from the following groups? (Interviewer: Ask in turn about the items in Table A.8.) 16. And where you believe pressure exists, how likely is it—very likely, somewhat likely, somewhat unlikely, or very unlikely—to affect judges’ decisions? (Interviewer: Ask in turn about the items in Table A.9.) 17. Some believe that the system of justice, like other public institutions, should be accountable for its performance. Others believe that the system of * Interviewer: Do not read or offer this alternative. If the respondent volunteers an answer like it, make a note of it.

Evaluating Systems of Justice Through Public Opinion 49

ta b l e a . 9 Likelihood that judges will yield to pressure Sources of pressure

Very likely

Somewhat likely

Somewhat unlikely

Very unlikely

DK/NA

The government The media Socioeconomic groups Higher-ranking judges The governing body of the judiciary (where applicable) Plaintiffs Defendants Organized crime

justice is a unique institution and that to make it accountable for its actions could seriously impair its independence. With which of these two statements do you tend to agree? a. The justice system should be accountable for its actions. b. The justice system is unique and so should not be accountable for its actions. c. Don’t know/no answer* 18. Imagine that a foreign friend is visiting this country for the first time. In her country bribery is a way of life, and she is curious to know if that is also the case here. She lists several types of officials and a possible situation, and then asks about the likelihood—not at all likely, very unlikely, somewhat unlikely, somewhat likely, very likely— of each group’s accepting a bribe. How do you answer her? (Interviewer: Ask in turn about the officials and situations in Table A.10.) 19. Imagine that a man is facing a criminal charge. Someone suggests that the case could be resolved immediately in his favor if payments are made under the table to the right people. Some people in this country would consider this to be a totally unrealistic proposition; others would consider it credible and worth pursuing. How do you think most people would react in this case? a. They would consider it an unrealistic proposition and would not take it seriously. b. They would consider it credible and worth pursuing. c. Don’t know/no answer*

* Interviewer: Do not read or offer this alternative. If the respondent volunteers an answer like it, make a note of it.

50 José Juan Toharia ta b l e a . 1 0 Responses Officials

Situations

The police

To avoid a fine or an arrest To get a favorable sentence To have a case delayed or speeded up To get a permit or a license To get a contract or a subsidy

Judges Court personnel Municipal officials Legislators

Not at all likely

Very unlikely

Somewhat unlikely

Somewhat likely

Very likely

DK/NA

20. And how would you react in this case? a. I would consider it an unrealistic proposition and would not take it seriously. b. I would consider it credible and worth pursuing. c. Don’t know/no answer* 21. Do you know or have you heard of someone who won a case in court by making payments under the table? a. Yes b. No c. Don’t know/no answer* 22. Do you know or have you heard of someone who won a case in court by using the influence of his or her friends or family? a. Yes b. No c. Don’t know/no answer* 23. How fairly are the following groups generally treated in our courts? Better than, the same as, or worse than the rest? (Interviewer: Ask in turn about the groups in Table A.11.) 24. Do you agree or disagree with the statement “Judges tend to be oriented toward liberalism or conservatism in roughly the same proportion as the general population”?

* Interviewer: Do not read or offer this alternative. If the respondent volunteers an answer like it, make a note of it.

Evaluating Systems of Justice Through Public Opinion 51

ta b l e a . 1 1 Treatment they receive Groups

Better

Same

Worse

DK/NA

The wealthy and influential Middle-class people Working-class people Minority groups Women Men People like you

a. b. c. d. e.

Strongly agree (Go to 25.) Somewhat agree (Go to 25.) Somewhat disagree (Go to 24A.) Strongly disagree (Go to 24A.) Don’t know/no answer (Go to 25.)*

24A. (Interviewer: Ask only of persons answering c or d in 24.) In your opinion, are judges more progressive or more conservative, on the whole, than the larger society. a. More progressive than the larger society b. More conservative than the larger society c. “Sometimes more progressive and sometimes more conservative”* d. Don’t know/no answer* 25. If you were charged in a criminal case, would you rather be tried by a panel of judges or by a jury selected at random? a. By a panel of judges b. By a jury c. Don’t know/no answer* 26. In your opinion, who is in a better position to hand down a fair decision in a case—a panel of judges or a jury selected at random? a. A panel of judges b. A jury selected at random c. Don’t know/no answer* 27. It is sometimes said that people in this country do not cooperate sufficiently with legal institutions, that they do not provide information about

* Interviewer: Do not read or offer this alternative. If the respondent volunteers an answer like it, make a note of it.

52 José Juan Toharia ta b l e a . 1 2 Responses Factors

Yes

No

DK/NA

(1) A lack of civic education (2) The inconvenience of cooperating with police and judicial authorities (3) Fear of retaliation (4) The feeling that it simply doesn’t make a difference

suspects to the police, for example, or volunteer to testify as witnesses. Do you agree with this thinking? a. Strongly agree (Go to 27A.) b. Somewhat agree (Go to 27A.) c. Somewhat disagree (Go to 28.) d. Strongly disagree (Go to 28.) e. Don’t know/no answer (Go to 28.)* 27A. (Interviewer: Ask only of persons answering a or b in 27.) Do you believe that the following factors play a part in people’s unwillingness to cooperate with the police and the courts? (Interviewer: Ask in turn about the factors in Table A.12.) 28. When judges in this country abuse their powers, as a rule, are they promptly required to account for their behavior? a. Always and in all cases b. Most of the time and in the majority of cases c. Only occasionally d. Almost never e. Don’t know/no answer* 29. When judges commit a crime, as a rule, are they treated better than, the same as, or worse than other people? a. Better than other people b. The same as other people c. “Depends on the case”* d. Worse than other people e. Don’t know/no answer* 30. In your opinion, how should such a judge be treated? a. Better than other people * Interviewer: Do not read or offer this alternative. If the respondent volunteers an answer like it, make a note of it.

Evaluating Systems of Justice Through Public Opinion 53

ta b l e a . 1 3 Responses Sources of information

Regularly

Sometimes

Hardly ever

Never

DK/NA

Television news Television dramas or movies Newspapers Radio news Radio talk shows Friends or relatives People’s comments in the streets

b. c. d. e.

The same as other people “Depends on the case”* Worse than other people Don’t know/no answer*

31. Have you ever had some type of personal involvement with the courts? a. No (Go to 32.) b. Yes (Go to 31A.) c. Don’t know/no answer (Go to 32.)* 31A. (Interviewer: Ask only of persons answering b in 31.) What kind of involvement? a. As a plaintiff b. As a defendant c. As a witness d. As a juror e. As an observer f. As a(n) ______________ (Interviewer: Note the answer.) 32. How often—regularly, sometimes, hardly ever, or never— do you get information about the courts or the system of justice from the following sources? (Interviewer: Ask in turn about the sources of information in Table A.13.)

* Interviewer: Do not read or offer this alternative. If the respondent volunteers an answer like it, make a note of it.

54 José Juan Toharia

Notes 1. The accountability of courts in no case extends to specific judicial decisions or sentences. Within a democratic context, the only acceptable way to account for individual sentences without endangering judicial independence is through the established procedures and mechanisms of appeal to a superior court. 2. See, for example, Cappelletti (1989); Tate and Vallinder (1995); and Toharia (2001). 3. That competition, Baldwin notes, is fully compatible “with other goals, such as ensuring judicial independence and the attainment of accuracy and rectitude in decision making” (2). 4. On the increasing inclusiveness of today’s judicial systems, see Merryman (quoted in Legrand 1999, 63). 5. Although Baldwin refers mainly to England, his remark can be extended to a number of other countries as well. 6. In Australia, for example, the Steering Committee for the Review of Commonwealth and State Service Provision prepares annual reports on the performance of all public institutions. 7. Prosecutors function as operators mainly in civil law systems, especially in systems where judges and prosecutors form a single, common administrative body (as they do in France and Italy). 8. The group also includes public attorneys in the United States and other common law countries. 9. In Spain, for example, several surveys have been carried out of representative samples of judges and lawyers (see Toharia 1987, 2001). In the United States, some federal judges have adopted the American Bar Association’s (1996) guidelines for the evaluation of judicial performance in their surveys of other judges and of users who have had contact with their courts. In 1998, in a joint project, the Supreme Court of Texas, the State Bar of Texas, and the Texas Office of Court Administration carried out a survey of judges, court personnel, and attorneys; the results were published in 1999 by the State Justice Institute. And Lex Mundi, an international network of independent law firms, has made a first attempt to evaluate how judicial systems handle specific types of cases based on reports from lawyers from different countries (Djankov et al. 2001). 10. Among the analyses that make use of system data are the SLADE project (Merryman, Clark, and Friedman 1979), Erhard Blankenburg’s landmark research in Holland and Germany and Santos Pastor’s in Spain, and the European Data Base on Judicial Systems (Contini 2000). 11. A distinction usually is made here between one-time users and frequent users. The latter include groups with a vested interest in a well-functioning judicial system—for example, business associations, labor unions, and civil rights organizations. 12. In England and Wales, a customer services department recently was created to survey the opinions of court users. The surveys are carried out by independent polling organizations, which annually canvass thousands of people who have had contact with a wide variety of courts (Baldwin 2002). In Spain, Demoscopia S.A.,

Evaluating Systems of Justice Through Public Opinion 55 an independent research institute, has carried out two surveys of national samples of court users (Garcia de la Cruz 2001). Interestingly, both in England and Wales and in Spain, a large majority of court users express satisfaction with the services provided. 13. It could even be argued that some of the basic charges against the concept of public opinion and attempts to measure it can be traced back to Lippman (1922). Support for public opinion polls today consists largely of variations on arguments advanced some six decades ago (see Gallup and Rae 1940; Lasswell 1948; and Lazarsfeld, Berelson, and Gaudet 1944). For recent comprehensive reviews on the issue, see Glasser and Salmon (1995) and Glynn et al. (1999). 14. We concede that the general public is particularly likely to evaluate the performance of the courts based on indirect, fragmentary information gathered from media coverage, the movies, fiction, and hearsay, and molded by social stereotypes and clichés about the legal world. But something similar could be said with respect to voters. In fact, what is distinctive about public opinion is not so much its informational content as the standpoints and choices it expresses, the attitudes, ideologies, and values of average citizens. Even when opinion appears to be uninformed or poorly informed to the expert eye, it represents a social force: the voice of the voters. In other words, if the expressed opinions of the citizens deserve attention, it is not so much for what citizens actually know as for the impact their views may have on the political process and on the definition of public policies. 15. The idea that in a democratic setting, the stability of public institutions depends on the way in which their efficiency and legitimacy are rated was expressed first by Lipset (1959, 1960/1981) and later refined by Linz (1978). Under the global label “institutional efficiency,” we include both what Linz defines as institutional efficacy (the capacity to devise solutions for the basic problems that the institution is called on to solve) and as institutional effectiveness (the institution’s success in implementing those solutions). 16. Although the concepts usually are related, social legitimacy should not be confused with political legitimacy. Social legitimacy is a purely sociological phenomenon, a state of the collective mind that is not tied to legal and political technicalities: it is— or is not—granted by the public and, as such, can vary substantially over time. Political legitimacy is an external, objective institutional feature: an institution is politically legitimate if the power it holds has been granted or achieved through legal processes and mechanisms. 17. It is clear that a degree of trust in the courts is important both for the system of justice and for the social system as a whole. The need for courts that are credible and trustworthy may explain the traditional symbol of justice: a blindfolded figure wielding sword and scales. The image suggests that justice is immune from human frailties that could bias consideration of each individual case (Loughlin 2000). 18. After the reunification of Germany in 1990, however, almost all of the judges in what had been East Germany were replaced. This was also the case in Slovakia, Romania, and other former Eastern-bloc countries. 19. For a comparison of the “classic” civil law judge and common law judge, see Merryman (1969).

56 José Juan Toharia 20. The key word here is can. Sometimes despite a significant event, the symbolic reinauguration does not happen. In that case, the courts’ social credibility is likely to remain dormant, a situation that ultimately must erode the popular image of the new political regime. 21. In 1978, at an extremely delicate point in the transition to democracy, a group of rightist radicals killed several lawyers in a firm ideologically connected with the communist party. The assassination was meant to provoke social and political upheaval that would lead to a military coup and a return to autocratic rule. The poised reaction of all the democratic parties, particularly those of the political left, prevented an uprising; but there were strong reservations in large sectors of the society about the possibility of a guilty sentence in a system of justice many suspected had not fully severed its ideological ties with the Francoist regime. In 1980, when a harsh sentence was handed down, the credibility of the judicial system experienced a remarkable boost, especially among leftists. After the 1980 sentence a plurality of all ideological sectors agreed with the statement “In general judges act in a fair and honest way”: Percentage of voters in AP/CD party (conservatives)

Agree Disagree

UCD party (centrists)

PSOE party (socialists)

PCE party (communists)

1978

1980

1978

1980

1978

1980

1978

1980

61 10

68 5

44 14

58 6

39 22

48 16

25 34

43 24

s o u r c e : Toharia (2001, 145).

22. For an analysis of the progressive and prodemocratic policies of the Hungarian Constitutional Court, see Schwartz (2000). 23. In 2001, I. Tsintsadze, a retired employee of the KGB, the much-feared Soviet political police, challenged the agency in court when it failed to grant him a special pension he believed he had earned. (The amount in question was the equivalent of roughly $1,000.) To the surprise of many, the court ruled in his favor. The proceedings were broadcast on television to promote and strengthen the rule of law in the country. It worked: to date twenty-five similar cases have been brought to court. 24. The newly created arbitrash courts, with no previous association with the Soviet regime, were given a fresh start. Russia’s other courts, which remained staffed by many of the same people who had served in Soviet times, have yet to persuade the public that they have adapted to new social expectations. For an account of the status of the Russian system of justice, see Solomon and Foglesong (2000). 25. In Argentina the federal courts seem to be achieving an unprecedented level of social legitimacy. An example was taped by television reporters and later aired worldwide. Just a few days before President De la Rua’s resignation, a large demonstration was called in the streets of Buenos Aires near the presidential palace, which was guarded by police forces. At one point, a passer-by approached the commanding officer, identified herself as a federal judge, and ordered him to dismiss his troops to prevent the possibility of a violent clash with the demonstrators. The baffled officer seemed to hesitate for a couple of seconds. Then, instead of ignoring (or arrest-

Evaluating Systems of Justice Through Public Opinion 57 ing!) the woman, he saluted her and dismissed his troops. Legally, of course, the judge had overreached her constitutional function: her power to make rulings did not extend from the bench to the streets. But that the police officer overlooked that technicality and yielded to the authority of a judicial figure clearly was recognition of the judiciary’s new social legitimacy. 26. For simplicity, in the tables here we consider only high and low values along each dimension, the values that would be expressed in simple yes or no answers. Of course, a more refined—and complex—alternative would be to think of each dimension as a graded scale or a continuum. 27. Here and in Table 1.3, I have relied on Hirschman (1970) in describing dominant attitudes. 28. Nuanced and, in this case, optimistic—a function of how responses to the poll were grouped. For an explanation, see the note to Table 1.5. 29. For an excellent recent collection of essays from an international perspective on the current theory and practice of judicial independence, see Russell and O’Brien (2001). In earlier collections, Shetreet and Deschenes (1985) focused on the tensions between independence and accountability; and Tate and Vallinder (1995) explored the potential dangers for democracy of excessive judicial influence and independence. 30. Governments, too, can be ambivalent about judicial independence. Even in democratic systems, “governments might wish for a judiciary which is pliant and which remains attentive to their interests. But they also recognize that, in order to be able to project an image of legitimate political order, their judges must be seen to be independent and to be operating at one remove from politics” (Loughlin 2000, 62 – 63). The conflict between a government’s wanting a fully cooperative judiciary and realizing that its interference could exact a high electoral price probably explains why most “judicial reform is politically difficult” (Rose-Ackerman 1999, 158). 31. The more accessible (user-friendly) a system of justice, the more likely it is to inspire a sense of procedural justice among users, the sense that their case has been dealt with fairly and that they have been treated fairly. This feeling of procedural justice—more so than the actual outcome of a case—is what seems to be at the root of trust and confidence in the law and the courts (see Tyler and Huo 2002). 32. Details on the methodology Transparency International used to assess levels of corruption in different countries are available on the organization’s Web site (www.transparency.org/). 33. Hualing Fu discusses this in Chapter 6, in reference to the courts in China. 34. The indicators identified at the conference were unequal treatment; the high cost of access; lack of public understanding; unfair and inconsistent judicial processes; partisan versus merit selection of judges; poor customer relations; judicial isolation (lack of contact with and perspective on the public); lack of independence; the role, compensation, and behavior of the bar; inefficient processing of cases; inadequate responses to change; poor use and treatment of jurors; bias in personnel practices within the system; the public’s inability to participate effectively in the justice system; and lack of accountability for public resources. For more information on the matter, see the National Center for State Courts Web site (www.ncsconline.org).

58 José Juan Toharia 35. For simplicity, we look at summary evaluations that condense all the ratings obtained with the different indicators used to appraise efficiency and social legitimacy. And we assume here that these general appraisals are expressed in positive or negative terms, not in the more modulated terms of a nominal or numeric scale. 36. The closed-mouth judiciary may become a thing of the past in England and Wales, where every newly appointed judge receives a remarkably useful booklet titled The Media: A Guide for Judges (2000). A similar program with a somewhat broader focus was implemented in California in 2000: all presiding judges and executive officers of all the courts in the state received a booklet titled Dialogue: Courts Reaching Out to Their Communities. A Handbook for Creating and Enhancing Court and Community Collaboration. (The full text of the booklet is available on the National Center for State Courts Web site, at www.ncsconline.org.) 37. As Lasswell (1948) stated more than half a century ago, some messages in some of the media have some effects on some audiences some of the time. More recent research on the whole has confirmed the media’s limited power to manipulate the news. The general consensus instead is that the media are “stunningly successful in telling [their audience] what to think about” (Cohen 1963, 13)—that is, in setting the public agenda. 38. Recent research by Garber and Bower (1999) provides a remarkable example of unintended but effectively biased media coverage of the courts. In an examination of 351 verdicts in U.S. courts handed down in product-liability cases against automobile manufacturers between 1985 and 1996, the researchers found that 74 percent were in favor of the defendant (the automobile manufacturer) and just 26 percent were in favor of the plaintiff (the consumer). Their analysis of the way in which major newspapers reported the verdicts yielded a totally different pattern. Just 47 of the 351 verdicts were reported: 10 cases in which the verdict favored the manufacturer and 37 cases in which the court found for the consumer. Obviously “David beats Goliath” makes a better headline than “Goliath wins again,” which explains the bias in the selection of cases reported. However, for average readers, unfamiliar with the actual statistics, the picture presented was highly distorted. Of the 47 verdicts described in the papers, 79 percent were in favor of the consumer, a percentage more than three times the actual rate. As a result, average readers may have been seriously misled about the real pattern of decisions in product-liability cases, a misperception that may well have encouraged litigation that had little chance of succeeding. 39. One lesson about the courts and the media comes from research I conducted in Spain in 2000. The hypothesis: the way in which the Spanish media had been covering judicial affairs since the inauguration of democracy in the country in the late 1970s was having a negative effect on the general public’s response to the courts. For example, despite expert appraisal to the contrary, average citizens believed judicial proceedings were much slower than they actually were. In group discussions and focused interviews with court reporters, I found that the journalists’ familiarity with the intricacies of judicial proceedings turned out to be just moderate and that their daily relationship with judges and other court personnel were strongly prejudiced and strained. A series of policies intended to improve the situation were suggested

Evaluating Systems of Justice Through Public Opinion 59 and implemented. The Consejo General del Poder Judicial (the governing body of the Spanish system of justice) organized a series of informal encounters between judges and journalists; the training center for new judges (the Escuela Judicial) set up regular visits for would-be judges with different representatives of the media; and the College of Notaries and the School of Journalism UAM-El País organized, as a joint venture, an annual course on judicial and legal journalism for young journalists. All of these initiatives had two goals: to increase the reporting skills of journalists and to train judicial operators to be more open and articulate when talking with journalists. 40. To paraphrase Gallup and Rae’s (1940) definition of public opinion as “the pulse of democracy.” 41. One example of an innovative effort to make the courts more responsive and user-oriented was the creation in the fall of 2000 in the United States of the Best Practices Institute. The explicit mission of the institute is to “identify and promote best practices established by State and local Courts across the country to improve the administration of Justice” and to better serve the public. For more on the institute, see the National Center for State Courts Web page (www.ncsconline.org). 42. An assessment of the extent to which the cultural dimension of the rule of law has developed usually can be made through ad hoc opinion research, by closely monitoring the response to the system’s symbolic reinauguration, for example.

References Almond, G. 1956. Comparative political systems. Journal of Politics 18: 391–409. American Bar Association. 1996. Judicial performance evaluation handbook. Chicago. Baldwin, John. 2002. Assessing court procedures: The consumers’ perspective. Paper presented at a seminar, Quality of Justice, organized by the European Commission, March 22, Brussels. Blumer, Herbert. 1948. Public opinion and public opinion polling. American Sociological Review 13: 242 –49. Bourdieu, Pierre. 1973/1984. L’opinion publique n’existe pas. Les Temps Modernes 318 ( Janvier): 1292 –1309. Reprinted in Questions de Sociologie (222 –35), Paris: Editions de Minuit. ———. 1979. Public opinion does not exist. In Communication and class struggle (124 –30), edited by A. Mattelart and S. Siegelaub. New York: International General. Cappelletti, M., ed. 1989. The judicial process in comparative perspective. Oxford: Clarendon Press. Church, T. W. 1990. A consumer’s perspective on the courts. Melbourne, Australia: Institute of Judicial Administration. Cohen, Bernard. 1963. The press and foreign policy. Princeton, N.J.: Princeton University Press. Contini, F., ed. 2000. European data base on judicial systems. Bologna: IRSIG-CNR. Djankov, S., R. La Porta, F. López de Silanes, and A. Shleifer. 2001. Legal structure and judicial efficiency: The Lex Mundi project. Available at www.lexmundi.com.

60 José Juan Toharia Eurobaromètre. 1997. Brussels: Commission Européènne. ———. 1999. Brussels: Commission Européènne. Gallup, G. H., and S. F. Rae. 1940. The pulse of democracy. New York: Simon & Schuster. Garber, S., and A. G. Bower. 1999. Newspaper coverage of automotive product liability verdicts. Law and Society Review 33, no. 1: 93 –122. García de Enterría, Eduardo. 1999. Justicia y seguridad jurídica en un mundo de leyes desbocadas. Madrid: Civitas. Garcia de la Cruz, Juan José. 2001. Encuesta a los usuarios de la justicia. Available at cgpj.es. Glasser, T. L., and C. T. Salmon, eds. 1995. Public opinion and the communication of consent. New York: Guilford Press. Glynn, C. J., S. Herbst, G. J. O’Keefe, and R. Y. Shapiro. 1999. Public opinion. Boulder, Colo.: Westview Press. Griffith, J. A. C. 1977/1991. The politics of the judiciary. London: Fontana. Hammergren, Linn. 1999. Diagnosing judicial performance: Toward a tool to help guide judicial reform programs. Washington, D.C. Mimeographed. Hirschman, Albert O. 1970. Exit, voice, and loyalty. Cambridge, Mass.: Harvard University Press. Jacob, H. 1996. Introduction. In Courts, law, and politics in comparative perspective, edited by H. Jacob, E. Blankenburg, H. M. Kritzer, D. M. Provine, and J. Sanders. New Haven: Yale University Press. Lasswell, Harold. 1948. The structure and function of communication in society. In The communication of ideas (32 –51), edited by L. Bryson. New York: Harper. Lazarsfeld, Paul F., Bernard R. Berelson, and Hazel Gaudet. 1944. The people’s choice. New York: Duell, Sloan and Pierce. Leggatt, Andrew. 2001. Tribunals for users: One system, one service. Report of the Review of Tribunals. London: Her Majesty’s Stationery Office. Legrand, P. 1999. John Henry Merryman and comparative legal studies: A dialogue. American Journal of Comparative Law 47, no. 1 (winter). Linz, Juan J. 1978. The breakdown of democratic regimes: Crisis, equilibration, and reequilibration. Baltimore: Johns Hopkins University Press. Lippman, W. 1922. Public opinion. New York: Macmillan. Lipset, S. M. 1959. Political sociology. In Sociology today: Problems and prospects (108 – 109), edited by R. K. Merton, L. Broom, and L. S. Cottrell. New York: Basic Books. ———. 1960/1981. Political man. New York: Doubleday. Expanded and updated edition, Baltimore: Johns Hopkins University Press. Loughlin, M. 2000. Sword and scales. An examination of the relationship between law and politics. Oxford: Hart. The media: A guide for judges. 2000. London: Lord Chancellor’s Department Press Office. Merryman, John Henry. 1969. The civil law tradition. Stanford, Calif.: Stanford University Press. Merryman, John Henry, David S. Clark, and Lawrence Friedman. 1979. Law and

Evaluating Systems of Justice Through Public Opinion 61 social change in Mediterranean Europe and Latin America. SLADE. Stanford, Calif.: Stanford Law School. Noelle-Neumann, E. 1984. The spiral of silence. Public opinion, our social skin. Chicago: University of Chicago Press. Rose-Ackerman, Susan. 1999. Corruption and government causes, consequences, and reform. Cambridge, England: Cambridge University Press. Russell, Peter H., and David M. O’Brien, eds. 2001. Judicial independence in the age of democracy. Critical perspectives from around the world. Richmond: University of Virginia Press. Salas, Denis. 1998. Le tiers pouvoir. Paris: Hachette Littératures. Schwartz, Herman. 2000. The struggle for constitutional justice in post-Communist Europe. Chicago: University of Chicago Press. Shapiro, Martin. 1981 Courts. A comparative and political analysis. Chicago: University of Chicago Press. Shetreet, S., and J. Deschenes, eds. 1985. Judicial independence: The contemporary debate. Dordrecht, The Netherlands: M. Nijhoff. Solomon, P. H., and T. S. Foglesong. 2000. Courts and transition in Russia. The challenge of judicial reform. Boulder, Colo.: Westview Press. State Justice Institute (Texas). 1999. The courts and the legal profession in Texas. An insider’s perspective. A survey of judges, court personnel and attorneys. Austin. Tate, C. N., and Vallinder, T., eds. 1995. The global expansion of judicial power. New York: New York University Press. Taylor, H. 1998. Opinion polling. In ESOMAR handbook of market and opinion research, edited by C. McDonald and P. Vaugelder. Amsterdam: ESOMAR. Toharia, José Juan. 1987. ¡Pleitos tengas! Introducción a la cultura legal española. Madrid: CIS/Siglo XXI. ———. 2001. Opinión pública y justicia. Madrid: CENDOJ, Consejo General del Poder Judicial. Tyler, Tom R., and Yuen J. Huo. 2002. Trust in the law: Encouraging public cooperation with the police and courts. New York: Russell Sage Foundation. Wolfensohn, J. D. 2001. Opening remarks to the Law and Justice Conference. Saint Petersburg, July. Woolf, Lord. 1995. Access to justice: Interim report to the Lord Chancellor’s Department on the civil justice system in England and Wales. London: Her Majesty’s Stationery Office. ———. 1996. Access to justice: Final report to the Lord Chancellor on the civil justice system in England and Wales. London: Her Majesty’s Stationery Office. The full text is available at www.law.warwick.ac.uk/woolf/report.

Additional Resources Almond, G. 1999. Perceptions of the U.S. justice system. Chicago. Biderman, Albert, et al. 1972. An inventory of surveys of the public on crime, justice, and related topics. Washington, D.C.: National Institute of Law Enforcement and Criminal Justice.

62 José Juan Toharia Bureau of Justice Assistance. 1997. Trial court performance standards and measurement system. Washington D.C.: U.S. Department of Justice. Fabri, M., and P. Langbroek, eds. 1999. The challenge of change for judicial systems (Developing a public administration perspective). Amsterdam: HAS and IOS Press. Flanagan, T. J., and D. R. Longmire. 1996. Americans view crime and justice: A national public opinion survey. Thousand Oaks, Calif.: Sage. Friedman, Lawrence. 1975. The legal system. New York: Russell Sage Foundation. ———. 1985/1994. Total justice. New York: Russell Sage Foundation. Garapon, Antoine. 1996. Le gardien des promesses. Justice et démocratie. Paris: Odile Jacob. Garcia de la Cruz, Juan José. 1997. Encuesta a usuarios de la Administración de Justicia. In Libro blanco de la justicia. Anexos (177–94). Madrid: Consejo General del Poder Judicial. ———. 2001. Un día en los tribunales de justicia de Madrid. Ilustre Colegio de Abogados de Madrid, Madrid. Mimeographed. Hastings, E. H., and P. K. Hastings, eds. 1993. Index to international public opinion 1993 –94. Westport, Conn.: Greenwood Press. Hindelang, Michael J. 1975. Public opinion regarding crime, criminal justice, and related topics. Washington, D.C.: U.S. Department of Justice. Kritzer, H. B., and J. Voelker. 1998. Familiarity breeds respect. How Wisconsin citizens view their courts. Judicature 82, no. 2: 58 – 64. Lipset, S. M., and Schneider, W. 1983. The confidence gap. New York: Free Press. Lock, Shmel. 1999. Crime, public opinion, and civil liberties. Westport, Conn.: Praeger. Messick, Rick. 1999. Key functions of a legal system with suggested performance measures. Washington, D.C. Mimeographed. National Center for State Courts. 1999. How the public views the state courts. A 1999 national survey. Williamsburg, Va. Roberts, Julian V. 1996. Public opinion, crime, and criminal justice. Boulder, Colo.: Westview Press. Rottman, D. B., and R. M. Hansen. 2001. How recent court users view the state courts: Perceptions of whites, African-Americans and Latins. Behavioral Sciences and the Law (special issue on trust and confidence in the courts) 19, no. 2. Stumpf, Harry P. 1988/1998. American judicial politics. Upper Saddle River, N.J.: Prentice-Hall. Toharia, José Juan. 2001. Judges. In International encyclopaedia of social and behavioral sciences (8015 – 8020), edited by N. J. Smelser and P. B. Baltes. London: Elsevier. Tyler, Tom R. 1990. Why people obey the law. New Haven, Conn.: Yale University Press. United Nations. 1986. Basic principles on the independence of the judiciary. New York. Zuger, M., and S. Mooney. 1983. Public attitudes toward civil justice: A report. New York: Insurance Information Institute.

ch apter

Judicial Systems in Western Europe: Comparative Indicators of Legal Professionals, Courts, Litigation, and Budgets in the 1990s

2

erhard blankenburg

european systems of justice experienced a period of rapid growth throughout the 1990s. Statistics, however, show that growth rates were not evenly distributed. For example, although the number of lawyers increased rapidly, the number of court personnel remained fairly constant.1 With litigation rates rising and staff holding constant, it is clear that the courts face growing pressure to streamline their work routines. Not surprisingly, then, many Western European countries have implemented policies—with varying degrees of success—to make their judicial procedures more efficient. Notice that the analysis here relies on statistics, not only to describe the legal systems of Western Europe, but also to understand what is happening in them. The analysis examines comparable statistics on the numbers of cases litigated, budget figures, and personnel data. Wherever possible, numbers that were assembled by the courts for management purposes are compared with precourt indicators—police and prosecution records, for example. Among the most important findings of this research are lessons on methodology. The analysis demonstrates both the potential and the limitations of comparing existing indicators. Although this research supports reliable conclusions about the varying size and cost of justice systems in Western Europe, it raises even more questions, questions that hopefully will be the subject of future study.

64 Erhard Blankenburg

Growth of the Legal Profession Push and pull factors come together to make the number of lawyers grow. Just as higher education in general has been growing for a whole generation, student numbers at law faculties in universities have increased rapidly. Law schools have particularly gained from the participation of women (see Abel and Lewis 1988 –1989). Once the domain of male students almost exclusively, by the end of the 1990s more than half of all law students were women. Among the many factors that attribute to the increase in law students are the demands of the labor market, with low unemployment among lawyers, and the lure of a high-paying job. The growth of the legal labor market behind this trend is very similar in all countries: law promises careers ranging from early job security in a tenured judicial career to a high-paying job in a big law firm. attorneys Table 2.1 shows that between 1990 and 1995, a number of countries in Western Europe experienced an increase in the number of attorneys per 100,000 inhabitants.2 Although all countries of our comparison have experienced an overall increase in the number of lawyers, however, there remain large differences in size and in growth rates, from 9.6 percent in Germany to 49.3 percent in Spain. The statistics do not support the plausible hypothta b l e 2 . 1 Population and Number of Attorneys, Western European Countries, 1990 and 1995

Austria England and Wales France Germany Italy The Netherlands Portugal Spain

Attorneys per 100,000 inhabitants

Population 1995 (millions)

1990

1995

8.0 51.8 59.5 81.7 ‡ 57.3 15.4 9.9 39.8

29 150* 43 † 83 § 105 43 123 140

40 176* 53 91 147 54 165 209

Growth 1990 –1995 (percent)

37.9 17.3 23.3 ||

40.0 25.6 34.1 49.3

s o u r c e : European Database on Judicial Systems (2000). *Includes barristers (slightly less than 10 percent of the total) and solicitors (approximately 90 percent of the total). † Includes the conseils juridiques, who merged with the avocats in 1991. ‡ In 1990, the population of East Germany was 16.1 million and West Germany 63.3 million. § A combined rate: In 1990, East Germany had 11 attorneys per 100,000 inhabitants; West Germany, 72. ||From 1990 to 1995, the number of attorneys in East Germany grew by 26.4 percent; West Germany, 82.7 percent.

Judicial Systems in Western Europe

65

esis that a country’s social and economic strength would be an accurate predictor of its population of lawyers. Often the contrary can be observed: the rate of registered lawyers in Southern Italy is higher than in Northern Italy, and the rate in Spain is higher than that in France, despite stronger economies in both Northern Italy and France. Additionally, such a hypothesis would not account for the high lawyer rates of Italy, Portugal, and Spain compared to the low rates in Austria, France, and The Netherlands. One reason for the disparate rates is that the law profession in each country defines its members differently (Berends 1992). Portugal, Spain, and Italy count most law school graduates as lawyers even though they might never work in law. (In these countries, there are other reasons—social prestige, for example—to value legal training.) Also, in many European countries, the “bar” is not a single profession; these countries distinguish between attorneys and legal consultants, solicitors and barristers, registered advocates and legal counsel. the judiciary While the number of attorneys grew everywhere between 1990 and 1995, the number of judges and prosecutors remained relatively constant (see Table 2.2)—in part a function of tight government budgets. Germany traditionally ranks first among European countries in terms of the size of its judiciary, followed at some distance by Austria. In addition to civil and criminal courts, both countries have an infrastructure of special courts (at both first-instance and appellate levels) for administrative, fiscal, labor, and social insurance matters. They have a tradition of life-tenured full-time judges. The numbers in Table 2.2 do not include the lay referees who sit on the benches of the penal, administrative, and labor courts. The Netherlands is the only country in Western Europe that saw a significant increase in the size of its traditionally small judiciary, which almost doubled over the period studied.3 But compared to other Continental countries, The Netherlands was simply catching up. In 1995, its immediate neighbor, Germany, employed almost three times the number of judges per 100,000 inhabitants. Dutch courts compensate for the small size of their judiciary by employing a large number of substitute judges who sit on the bench for only a few days per month. They also take on higher judicial caseloads because—as in France— court clerks are much more involved in the work of judges; German and Austrian law strictly prohibits this practice. In England and Wales the judiciary is an entirely different organization. British courts employ a great number of lay magistrates who are highly dependent on the expertise and case management skills of court clerks. Also procedure differs: continental law puts much of the responsibility for the

66 Erhard Blankenburg ta b l e 2 . 2 Numbers of Judges and Prosecutors, Western European Countries, 1990 and 1995 Prosecutors per 100,000 inhabitants

Professional judges per 100,000 inhabitants 1990

Austria England and Wales France Germany Italy The Netherlands Portugal Spain

20.1 4.0 (1.9)* — East: 9 ‡ West: 28 10.4 5.5 10.3 8.0

1995

1995

22.0 4.5 (2.4)* 10.0 22.7

2.9 4.5 † 2.6 4.5

10.9 9.8 11.7 8.5

3.2 2.7 3.1 3.3

s o u r c e : European Database on Judicial Systems (2000). *Figures in parentheses represent estimated full-time equivalents. † Includes lawyers and trainees in the Crown Prosecution Service. ‡ This figure is from 1985, but the ratio of judges to population would not differ significantly between 1985 and 1990.

preparation of cases and court activity in the hands of the judges; in common law courts, attorneys present their cases to a largely passive judge or chairperson.

Legal Aid The access to law movement of the early 1970s led to a wave of innovations and reforms, particularly in the Common Law countries and countries with developed welfare-state provisions, such as the Scandinavian countries and The Netherlands. Others like Germany and France also saw the development of a welfare state in general, but the lobbying efforts of conservative lawyers prevented the extension of such assistance to the legal field (Blankenburg 1999). Measured in terms of funding and services provided, Britain clearly ranks first in providing for legal aid (Table 2.3). British legal aid emerged from the welfare politics immediately following World War II. The first institution, Citizens Advice Bureaux, staffed by nonlawyer volunteers, assisted with the reintegration of returning soldiers. By 1949 the Legal Aid and Advice Act granted subsidies for solicitors and barristers representing poor people. The Law Society administered the legal aid scheme until 1988 when the Legal Aid Board assumed responsibility under the Legal Aid Act. Administering the scheme is a major bureaucratic undertaking. In 1991–1992 the English Board employed a permanent staff of about 1,300 employees, who have

Judicial Systems in Western Europe

67

proved to be an effective lobby for reform of the programs. In addition, some 55 community-financed Law Centres, loosely coordinated by the national Law Centres Federation, address a multitude of local public-interest legal matters. However, attempts to reform the British legal aid program represent a remarkable story of failure to cut costs. Measured in terms of services rendered, The Netherlands nearly matches the English legal aid infrastructure. In terms of funding, however, the Dutch spend less than half the amount per capita spent by the English. Since the 1970s the Dutch have maintained a mixed system of legal aid advocates (sociale advokatuur ) and staff bureaus (buros voor rechtshulp). Under this system, nonattorneys at the legal aid offices provide consultations and legal advice, referring cases to attorneys only when court representation is required. The modest fee scheme for social advocates, coupled with an auditing control program introduced under the 1994 Legal Aid Law, protects the Dutch system from exploitation by the legal profession, which the British system has experienced due to high payment claims from solicitors. Other Continental countries fall well behind these levels, even though their civil procedure codes have guaranteed a “poor man’s law” (including the right to counsel) since the 19th century. Judges are required to apply merit tests before granting assistance, which puts bureaucratic obstacles in the path of applicants and creates a considerable workload for the courts. Precourt consultations are rarely provided. Germany introduced payment for such consultations (Beratungshilfe) in 1980. France has extended subsidies under the present government, but their legal aid budget remains modest

ta b l e 2 . 3 Legal Aid Cases and Expenditures, Western European Countries, 1999 Services per 100,000 inhabitants

England and Wales France Germany § The Netherlands Portugal Spain

Consultations

Court cases

Budget per capita (ECU*)

2.9 † — 383 1.7 56 —

— 527 226 1.3 353 586

26.70 ‡ 2.27 4.23 12.82 .— 1.06

s o u r c e : European Database on Judicial Systems (2000). *Euro valued as of December 1, 1995. † Consultations and court cases combined. ‡ Excluding revenues, the overall budget in 1999 totaled ECU 34.77 per capita in 1999. § In Germany, budget data are collected by land. The numbers and rates here for services and funding are for Northrhine–Westphalia.

68 Erhard Blankenburg compared to England and The Netherlands. In general, European governments maintain tight budgets under policies of welfare-spending austerity. At the same time, the bar remains reluctant to take on obligations that are not financially rewarding.

Civil Justice If we turn to litigation rates, we find severe problems of definition. One apparent problem is deciding how to determine what forms an “adversary case.” In some types of cases (debt enforcement, for example) up to twothirds of all filings exit the system early on. Either the defendant fails to appear so that the case concludes with a default judgment, or the parties reach an out-of-court settlement and the plaintiff withdraws. Initiating court proceedings can serve as a threat in an ongoing process of out-of-court negotiations. In other cases, like labor dismissals, a settlement is usually proposed by the judge and documented in court. The parties agree not to appeal the decision, thereby saving time and money. The degree to which such early exits are sought varies. In some legal cultures, advocates and their parties tend to exhaust all legal procedures, including appeals; while in other environments self-regulation is quite common. Most court cases, then, involve undisputed claims: the plaintiff simply needs a court order to force the defendant to comply. In divorce cases most countries require a court decision, but the parties often appear with a settlement negotiated in advance. In fact, most divorces can be settled and in only a minority is the battle fought over the terms of separation. In the bulk of the cases, the courts serve a quasinotary function. The different functions of court procedures can be considered in a fourcell table, with the parties’ interests on one axis and the predictability of the outcome on the other (Table 2.4). The ideal adversarial procedure would assume a zero-sum conflict constellation and an open-ended outcome. Otherta b l e 2 . 4 Parties’ Shared Interests and Predictability, and the Outcomes of Civil Cases Parties’ shared interests

Yes No

Predictability High

Low

A Quasi-notary act C Court order

B Settlement D Adversary decision

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69

ta b l e 2 . 5 Civil Cases, Western European Countries, 1990 and 1995 Adversarial procedures per 100,000 inhabitants

Divorces per 100,000 inhabitants

Summary debt enforcement per 100,000 inhabitants, 1995

1990

1995

Growth 1990 – 1995 (percent)

Austria

8.5

1,733*

1,662*

⫺4.1

France

1.1

2,032

Germany Italy

8.3 —

—

—

2,464 † 1,227

2,656 1,299

7.8 5.9

‡

1,393

1,626

16.7

Portugal

—

2,061

3,762

82.5

Spain

—

1,344

1,897

41.1

The Netherlands

1990

1995

Included in adversarial data. Included in adversarial data 240 † 254 Included in adversarial data Included in 241 § adversarial data Included in adversarial data (estimated at 9%) 217 300

Growth 1990 – 1995 (percent)

— — 5.8 — —

— 38.2

s o u r c e s : French data are taken from Wollschläger (1989); other data are from European Database on Judicial Systems (2000). *These figures do not include summary procedures and default judgments, which could increase the totals by as much as 50 percent, giving Austria a rate like that of Germany. † The 1990 data are for West Germany only. ‡ The Netherlands abolished the procedure in 1992. § Since 1994, most divorce cases in The Netherlands are handled by request. In 1990, divorces were counted with the adversary litigation. In functional terms, then, the growth in adversarial cases actually is larger than that shown here.

wise, why should the parties litigate? In reality, however, parties have at least some common interests and court cases have some degree of predictability. litigation rates in western europe of the 1990s The options courts supply, together with the costs and duration of procedures, determine how often and to what ends the courts are invoked. Some legal systems offer a diversified range of procedures for the different goals litigants may have.4 Table 2.5 shows the litigation rates in Western Europe broken down by type of court procedure. Many courts offer summary procedures (for example, for debt enforcement); some use preliminary injunctions (like the French référé ) for quick and, in fact, final decisions.5 Others encourage early exits through a system of increasing (in effect sometimes punitive) court fees and restrictions on entering new arguments or evidence at a later stage or on appeal. Some systems restrict appeals in small claims cases, reserving the right to appeal and revise or overturn for financially high stakes cases.6

70 Erhard Blankenburg ta b l e 2 . 6 Long-Term Patterns of Outcome in German Litigation Issue

Outcome

Default judgment (withdrawal) Settlement Judge’s decision Appeals Appeal rate (percent of judges’ decisions)

Debt Landlord– collection* tenant (percent) (percent)

Traffic tort (percent)

Employment (percent)

Construction Divorce (percent) (percent)

65 12 16 7

69 18 8 5

52 5 27 16

34 50 8 8

20 40 24 16

10 — 86 4

40

38

35

50

40

5

s o u r c e : This data is compiled from a variety of studies on German litigation in 1985. *Contracts and debt enforcement.

As every judge knows from experience, the function for which parties invoke the courts often becomes clear only during the course of the proceedings. Most filings (which are registered as “cases”) are terminated by default or withdrawal, as we pointed out. In other cases (like many of the disputes following a divorce), the court’s function is obviously one-sided and can be handled through a simplified “request” procedure. All European legal systems offer specialized procedures, but they differ in the degree and purposes for which they are used. For the sake of comparison, it would be useful to catalogue various procedures offered according to the issue at stake. In particular, it would be useful to have some measure of the variety of “adversarial” procedures; that is, those which provide for an open contest between parties ending in a judicial decision. As judicial statistics do not provide comparable categories for such analysis, we have to speculate about litigation rates, based on the rough figures of all cases filed. A more valid analysis of litigation rates would require an in-depth study of court files differentiated by the issues at stake and the manner of termination. An example of the necessary breakdown is provided in Table 2.6. Still the procedural systems across Europe are sufficiently similar to highlight some differences in terms of litigation rates. The difficulties in interpreting litigation rates are all too obvious when one considers the many procedures that are not counted. For example, in all countries debt enforcement is largely left to private debt collectors, facilitated to varying degrees by summary court procedures. Default judgments are routine procedure in English county courts. German, Austrian, and (to some degree) French courts offer an electronically processed, one-sided injunction that turns into a court procedure only if protested by the debtor.

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71

As these injunctions are cheap and quick, this procedure attracts a high volume of cases. Because they are backed up by an effective debt enforcement system, creditors, mail order companies, doctors, and other service providers can assume greater risks regarding outstanding payments. Businesses are more lax in offering credit, invest less in risk prevention, and thus allow for more bad debts to occur. German and Austrian statistics demonstrate that about 10 percent of the injunctions issued are protested and are thus responsible for a still high volume of debt cases in the courts. These cases, however, are likely to result in default judgments. Austrian statistics, which have treated debt enforcement as a summary procedure since the 1990s, illustrate the effect of summary procedures on overall litigation rates. Civil litigation in the 1990s shows slightly declining rates, but if we look back to 1980 when the statistics included the mass of quick and easy decisions in debt collection cases, a high rate of 5,206 civil litigation cases is reported.7 Whereas summary procedures attract cases to the courts, the long duration of regular procedures deters plaintiffs from invoking them. In countries, such as Italy, that report a steady increase in the duration of court procedures, it is generally assumed that potential plaintiffs look for alternative ways to enforce contracts and collect debts out of court. However, the average duration reported remains a weak indicator. As in other countries, debt collection in Italy accounts for the largest volume of cases. As these cases are predominantly terminated by default judgments, it would be useful to have statistics separating them from full adversary proceedings. Valid indicators for comparative research would have to take into account at least three factors: 1. the percentage of short procedures (i.e., up to half a year) that do not cause the courts much work, 2. the percentage of long procedures (i.e., two years or more), and 3. the rate of appeals, often the most annoying factor for parties desiring legal certainty within a reasonable time. Although inefficient procedures may deter potential plaintiffs from invoking the courts, it is debatable whether a certain level of avoidance is desirable. Once disputes before the courts become routine, the legal system might be pressured to develop attractive (and possibly cheaper) alternatives outside the courts. The interaction and mutual dependency of supply and demand for litigation helps explain national differences in litigation rates. The introduction of summary procedures produces sizeable and sudden effects in the statistics. These, however, prevent us from comparing the growth rates of adversary cases experienced in recent years. These growth rates, observed in the short

72 Erhard Blankenburg time period from 1990 to 1995, explain why many judges complain about sudden increases in their workloads. Spain and The Netherlands saw a sudden increase in civil litigation, which as we know from more recent statistics continued throughout the 1990s, as did the French litigation rate. Austrian, German, and Italian civil courts have managed to keep their litigation rates either constant or at a limited increase.8 While significant differences remain, the rank order of litigation rates has not changed: litigation-happy Germans position themselves at one extreme, with litigation-avoiding Italians at the other. In order to understand these differences, one must first understand the party configurations of disputes brought before the courts, and the tendencies of legal systems to externalize or internalize certain types of cases by offering issue-specific procedural avenues. sector-specific factors of mobilization and of avoidance of courts As mentioned above, studies of court files reveal that debt collection accounts for the bulk of cases filed. The plaintiffs in these cases tend to be business parties and the defendants either private consumers or other businesses.9 The second most common type of dispute litigated involves housing issues, usually with the landlord as the plaintiff. And in third place are liability claims, especially torts resulting from traffic accidents. The banality of the majority of cases litigated (the statistically relevant cases) might come as a surprise to those fascinated by media reports of more spectacular liability disputes, such as malpractice claims against doctors and other professionals; the increasing litigation around intellectual property; or neighborhood disputes, which rank high in polemic arguments against the hazards of litigation. Innovative as these issues may be in terms of developing jurisprudence, they do not account for the mass of everyday litigation activity. Considering the dominance of economic issues, it is not surprising that litigation rates—apart from family courts—are much higher in metropolitan areas. Lawyers and their clients tend to concentrate around economic centers. This holds true within each of the countries under consideration, but not with regard to comparisons between countries: for example, The Netherlands is a densely populated country with much economic activity, but it has a litigation rate far lower than those of Germany or Belgium, neighboring countries with economies equally strong to that of the Netherlands. Litigation volumes vary with the judicial infrastructure. Some statistics on how court cases are terminated will help shed light on the functions courts serve for the parties, as well as the parties’ propensity to settle cases and their determination to go all the way to an adversary decision or even to appeal.

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73

Civil law textbooks deal at great length with the intricacies of contractual obligations. In court, however, it is rare that the terms of a contract are at issue. In the majority of cases, the plaintiff wants to enforce a claim, which he expects to be undisputed. And indeed, in most civil court cases the defendant does not raise any defense and the procedure ends in a default judgment. However, even when the law provides for summary debt procedures, defendants often protest the claim in order to win time or better the conditions of an out-of-court settlement. As the majority of civil law claims are related to consumption and credit, they vary markedly with economic cycles. As a matter of fact, most historical changes in litigation rates mirror the ups and downs of debt enforcement cycles. Over the long run, however, the volume of litigation is growing more slowly than economies and credit facilities. Creditors are constantly inventing new forms of risk payments, while at the same time trying to rationalize their credit business through preventive measures.10 Where summary procedures are swift, cheap, and efficient, certain types of trade, such as mail order sales, flourish. Where such procedures are lacking, out-of-court alternatives might provide a functional alternative. For example, the deurwaarders in The Netherlands pride themselves on having contributed to the abolition of the summary procedure in 1992. This was partly due to more anticipatory billing practices and partly due to the authority of independent deurwaarders to enforce small claims based on their own determination of a claim’s legal validity. As a result, Dutch courts are now less burdened with debt enforcement than those in other European countries are. If courts are too slow, expensive, or impractical, would-be litigants may try to institutionalize other ways to regulate their disputes. Thus by working slowly, at a high cost, and in unpredictable ways, a court system may keep litigation away, forcing organized parties to find alternative ways to enforce their claims out of court. Creditor plaintiffs are predominantly repeat players, while defendants tend to be private citizens. For obvious reasons consumers are rarely plaintiffs. High burdens of proof and low values at stake usually outweigh the trouble of a lawsuit. Consumers are more likely to mobilize the law in test cases or when special institutions and procedures facilitate access. tort and liability Liability is a major topic in American discussions of the alleged litigation explosion, but in Europe it is largely considered an “American disease” caused by lawyers’ contingency fees and civil jury trials, both of which are alien to the civil law system. Moreover, even if there is much discussion about a few extraordinary liability claims recently launched in Europe, stud-

74 Erhard Blankenburg ies show that the volume of these cases is much lower than in the United States.11 Personal injury damages in Europe are largely covered by insurance systems, and most jurisdictions rely on standard tables for tort damages. Once a liability case appears before the courts, however, it is usually litigated all the way to an adversary decision.12 The example of litigation along American lines is being imitated throughout Europe, but awards are generally lower and such cases don’t have a significant impact on court caseloads. Insurance agencies make every effort to promote internal settlements, both through routine negotiation practices and through the use of insurance mediators. The demand for everyday tort proceedings, however, has been growing for several decades, largely due to automobile accidents, which make up the majority of criminal cases in some lower courts. These cases create work for a chain of legal institutions, including the police, public prosecutors, legal insurance companies and experts, lawyers, and the courts. There are some exceptions: in The Netherlands, traffic accidents are traditionally settled between insurance companies, and in France the volume of such cases has distinctly decreased over the last decade since they switched to a system of regulating insurance companies. In most Western European countries, however, traffic tort cases remain sizeable. In Belgium, Austria, and Germany, they account for about 10 percent of civil procedures. Landlord–Tenant Disputes. In most European countries landlord–tenant litigation experienced its most explosive growth in the 1980s, but in some countries, depending on the liberalization of rent control, this growth continued throughout the 1990s. Because many cities now have rent control schemes, most disputes between landlords and tenants today are initiated by landlords threatening to evict tenants for nonpayment of rent. These landlords often use the threat of eviction to reach some sort of settlement with the tenants. Tenants rarely file claims against their landlords. Because tenants are the socially weaker party to the contract, their rights often can only be defended when group actions force housing corporations to negotiate. In such cases, the courts are invoked only after collective bargaining has failed. Divorce and Related Family Matters. In the last generation, the frequency of divorce has increased dramatically. This is equally true in both capitalist and socialist countries and in the West as well as the Far East. Divorce rates have risen rather uniformly across Europe to the level of between 250 and 300 cases per 100,000 inhabitants. An increasing share of these divorces do not concern any dependent children and thus can be decided easily, often in a quasi-notary fashion. The majority of divorce proceedings appear before the courts only because there is no alternative. In most European countries, divorce requires a judicial decree,13 but increasingly divorce cases receive judicial approval without much interference, and many countries have re-

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75

duced divorce cases to simple request procedures. Countries that demand an adversarial divorce proceeding, however, may create large workloads. In some countries (like Germany) the judicial mandate includes elaborate follow-up checks, such as pension adjustments, spousal maintenance, and welfare rights. In other countries, summary divorce proceedings may simply require certifying the applications submitted by the parties. In a minority of divorce cases, highly controversial disputes arise later on, after the divorce. Post-divorce proceedings may involve changes in or enforcement of custody orders, child support, or alimony payments, for example. These disputes increasingly keep family courts busy. However, as they often concern the enforcement of otherwise undisputed claims, they may be handled through one-sided request procedures, which are not included in our adversary litigation rates. Just as there is considerable variation in the degree to which divorce procedures are handled through summary procedures or even externalized, post-divorce disputes depend on differing regulations governing state welfare support and spousal and child support. The proceedings generally do not require much time or effort, but their frequencies have increased disproportionately so that most countries are now dealing with more post-divorce cases than divorce proceedings. litigation before appeal courts and highest courts Standardizing procedures, providing for summary proceedings, and encouraging settlements are vital responses to overburdened courts. Potential litigants, particularly those seeking to maintain long-standing relations, may desire to avoid escalating their disputes into a full-blown lawsuit. At the other end of the spectrum, parties may want to pursue their cases to appeal. Continental civil law allows for all judgments to go to appeal on facts as well as on law. Procedural law determines the limitations on appeals. Ideally, if we want to compute appeal rates, we have to take these limitations into account and use as baseline only those first instance cases where appeal would be feasible. Here, however, we relate frequencies at all court levels directly to the population size, which gives us an appeal frequency as an indicator of one form of litigiousness. Appeals for overturn or revision, on the legal merits, tend to be severely limited. The reviewing court considers not just the wishes of the parties, but also the legal issue and its importance. Table 2.7 shows that the rank order of countries differs for each of the instances. Appeal frequencies (per population) follow a similar rank order as the first-instance litigation rates (compare Table 2.5). Austria has a very high litigation rate in both instances, if we correct for the missing short procedures that remain nonadversary, followed by France and Germany. Portugal takes a middle position; The Netherlands, Spain, and Italy report rather low frequencies in both instances.14

76 Erhard Blankenburg ta b l e 2 . 7 Civil Court Appeals and Cassation/Revision Rates, Western European Countries, 1990 and 1995 Appeals in civil courts per 100,000 inhabitants

Austria France Germany Italy The Netherlands Portugal Spain

Cassation/revision per 100,000 inhabitants

1990

1995

1990

1995

505 287 240* 67 — 91 134

550 373 198 † 70 38 127 255

38.4 33.4 7.2* 13.1 — 16.1 8.9

48.2 33.6 6.0 † 17.0 2.2 16.5 9.5

s o u r c e : European Database on Judicial Systems (2000). *The 1990 figures are for West Germany only. † The 1995 figures are relatively low because many cases from the former East Germany had not yet reached the higher courts.

However, the highly litigious Germans admit only a few cases to their highest courts. Revision on a point of law is restricted either by value at stake (only cases worth DM 60,000 or more enjoy unlimited access) or by the holding of the lower court. Additionally, the high costs and small number of specialized advocates (only 23) who are allowed to appear before the highest court has effectively limited the number of cases. The Latin countries have less dramatic restrictions on access to cassation (appeal). The French system has the least restrictions on access, as reflected by an appeal frequency twice that of the Italian and three times that of the Spanish highest courts. One might expect small developed countries to produce more supreme court cases than larger developed countries, because after all, decisions on fundamental questions of law should relate primarily to the complexity of the legal system, and only secondarily to the size of the society. The small countries, however, occupy extremes. While Austria has a high frequency of appeals to the highest court, the Dutch manage their complex legal system with a very low number of cases before the highest court. demand and supply factors of civil litigation Wollschläger (1998), who examined long-term trends and compiled litigation rates for the last 150 years, concluded that civil litigation was fixed at certain nationally determined levels and, thus, in a constant rank order of litigation density over the entire statistically known stretch of time. Sudden increases in litigation rates might be linked to economic crises (for example, the rates reached an all-time high during the economic crisis of the 1920s), while decreases tend to occur in times of war. In the long run, however, they

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77

increase with economic development, urbanization, and related social changes. But by differentiating between summary and adversary procedures, Wollschläger also explains statistical changes resulting from the introduction of simplified procedures.15

Special Jurisdiction Courts in Western Europe labor law disputes Litigation rates in courts of special jurisdiction have experienced even more dramatic changes than the rates in ordinary civil courts. Recently courts of special jurisdiction have experienced an all-time high in litigation rates. Not surprisingly, increases and decreases in case filings in the labor courts follow patterns in the employment market. Throughout the 1990s, growth in litigation rates were especially rapid in England, Austria, and Germany.16 Labor courts take very different forms across Europe. These include a precourt arbitration system (called ACAS) and Industrial Tribunals in England; special court systems in Germany, Austria, Italy, and Spain; local special courts in France, with appeal to the general court system; and fully integrated jurisdiction in The Netherlands, with a special request procedure in local courts. The typical constellation of labor disputes is fairly consistent. They invariably involve collective actors aligned with the individual contracting parties. Many countries have kept industrial relations outside the jurisdiction of the courts. The British trade unions, for example, effectively resisted legalization of industrial relations until 1984, and even today collective labor disputes are widely dealt with by nonjudicial corporate institutions.17 The German labor courts internalized collective agreements in 1928 by introducing special procedures for interpreting such issues; in other countries the civil courts handle these disputes (especially the legitimacy of strikes). While decisions on the legality of strikes and lockouts are of crucial importance, the limited number of such disputes demonstrates once more that high levels of public attention do not necessarily correspond with high volumes of litigation. The litigation rates in Table 2.8 concern individual claims, with more than half of them arising from dismissals and redundancies. These cases rarely result in employees winning back their jobs; rather, they regulate the terms under which labor contracts are terminated. Empirical research on various systems of settling labor disputes demonstrates that such disputes generally end with the payment of compensation (see, for example, Blankenburg and Rogowski 1986).

78 Erhard Blankenburg ta b l e 2 . 8 Cases Before Labor Courts and Tribunals, Western European Countries, 1990 and 1995 Cases

1990 Conciliation* Litigation 1995 Conciliation* Litigation

Austria

England/ Wales

France

Germany

Italy

The Netherlands Portugal

335

102 76

263 132

510

300

—

450

514

457

176 210

265 185

780

300

450

572

446

Spain

s o u r c e : European Database on Judicial Systems (2000), and ACAS (1995). n o t e : Numbers are per 100,000 inhabitants. *There is a special conciliation procedure before the Prud’hommes in France; and pretribunal conciliation (ACAS) in England and Wales.

ta b l e 2 . 9 Cases Before Administrative Courts and Tribunals, Western European Countries, 1990 and 1995 Cases filed for adversary procedures

Administrative 1990 1995 Social insurance 1990 1995 Fiscal and tax 1990 1995

Austria

England/ Wales

*

†

234 289

243 447

*

†

446

France

Germany

120 160

200 275

115 170

130 260

18 38

158 317

190 260 ‡

210 280

320 1,054

180 320

— —

188 209

26 39

76 67

— 0,447 §

70 70

158 317

227 417

†

Italy

The Netherlands Portugal

§

Spain

s o u r c e : European Database on Judicial Systems (2000). n o t e : Numbers are per 100,000 inhabitants. *These cases can appeal only to the Austrian high court. † The various tribunals in England and Wales are not exactly equivalent to those in the civil law countries. That, in combination with basic reforms that were not implemented until 1990, made it difficult to distinguish in the data from that year between internal complaints and adversary cases filed. ‡ 1996 figure. § 1997 figure.

judicial review of administration The most widespread litigation growth in recent years has undoubtedly occurred in administrative courts and tribunals (Table 2.9). Special regulations apply when courts handle social insurance claims, which tend to be highly dependent on changes in legislation and the quality of their implementation. At times, such changes have led to surprising and sudden floods

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79

of claims, as was the case when legislation regarding public service pensions in Italy was changed. In most countries (such as Germany, Austria, France, and Italy) waves of litigation against public agencies have impacted well-established courts of special jurisdiction. England, on the other hand, has seen a number of tribunals arise over the last thirty years, as did The Netherlands, which only recently introduced true judicial review of administration decisions. Since 1994 first instance cases are filed in regional courts and are appealed to the State Council. The Dutch example illustrates an important result of the growth of judicial review of public administration. Public agencies have reacted to citizens’ increased expectations by instituting internal complaint procedures, which often attempt to filter disputes to more informal procedures, such as ombudsmen and complaint boards. In countries with a long established tradition of administrative courts (such as Germany, France, and Italy) informal complaint alternatives are met with greater resistance, usually based on the argument that they do not provide a formal legal remedy.18 The growth of institutions for judicial review of administrative action clearly indicates that the increase in litigation against public administration is qualitatively different from the caseload increase in civil courts. Plaintiffs are citizens, companies, and nongovernmental organizations protesting against a public body. Waves of protests and claims against public administrative agencies have become a trademark of developed countries. They represent a change in the relationship between citizens (and organizations) and public regulation (and the public sphere).

Criminal Justice Few legal systems have responded to the growth of petty crime by externalizing minor criminal offenses, although some have given prosecutors the discretion to handle petty crime by routine procedures without court involvement. The legal status of these discretionary procedures varies widely. Some countries, such as Italy, Spain, and Portugal, continue treating these cases as full prosecutions. Other countries, such as The Netherlands, treat them as precourt settlements (transactie), while in Germany similar routine procedures are registered as court sanctions (Mahnbescheid ). Information regarding crime rates can be gathered through a review of court records of both full and summary criminal cases. A second method of measuring crime rates is through victim surveys. Victim surveys offer the advantage of providing information on unreported crime, and once we understand the patterns of official registration by the police and the prosecutor’s office, we can compare the rates of official crimes

80 Erhard Blankenburg ta b l e 2 . 1 0 Victims’ Reports of Crime, Western European Countries, 1995 Crime

Households burglarized Motor vehicles stolen Persons robbed Persons assaulted

Austria

England/ Wales

France

Germany

Italy

0.9 0.2 0.2 2.1

2.4 2.7 1.3 0.8

2.4 2.0 0.6 2.8

1.3 0.4 0.8 3.1

2.7 2.7 1.7 3.9

The Netherlands Spain

2.3 0.4 0.8 3.8

3.1 3.1 1.6 1.4

s o u r c e : Dijk, Mayhew, and Killias (1996). n o t e : Numbers are per 100,000 inhabitants.

with those that go unreported (although the accuracy of victim surveys may vary according to the type of crime).19 Table 2.10 shows crimes committed in 1995 according to victim surveys. If we compare victim reports of burglary (perhaps the most reliably measured of all offenses), Spain and Italy show the highest rates, followed by England, France, and The Netherlands. Automobile theft rates demonstrate a similar rank order, but here the much lower rates in The Netherlands and Germany (compared to the burglary rates in these same countries) raise some suspicions about the validity of the data. The rank order, however, remains fairly consistent for violent crimes, such as robbery and assault. Austrians, in any case, report the lowest rates on most accounts. A third method of measuring crime rates is to compare the caseload of prosecutors’ offices. These statistics provide two important pieces of information. First, they show the percentage of cases that are charged before the court (in such cases there is a 90 percent chance that a guilty sentence will follow); and second, they indicate the percentage of cases dropped by the prosecution. Table 2.11 shows the rates of cases disposed of by prosecutors in Western European countries. In countries where the latter percentage is high (such as France, Portugal, Germany, and Austria), we can be sure that all police-registered incidents are included, even those which are not cleared. However, when no suspect is identified in such cases, the prosecution is forced to drop the matter. Of those cases cleared by the police, an additional 10 to 20 percent are dropped because the prosecution lacks sufficient proof. In such cases, the prosecution could renew the case if new evidence is discovered, but these late clearances are too rare to be statistically relevant. In some countries, like Germany and The Netherlands, there is a third category of cases, in which the prosecutor’s office makes an offer to the suspect. If the suspect accepts a fine or some alternative penal measure, which of course implies a guilty plea, the prosecution is entitled to waive the charge before court. This procedure is largely (but not exclusively) used for petty

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81

crime, allowing the prosecution to handle a large caseload in a routine manner. The next step is to analyze how the judicial system copes with the volume of crime. The main problem with criminal justice statistics is variations in police clearance rates. Some of the most common offenses, such as vandalism and bicycle theft, offer such low chances of finding a suspect that police registration depends on secondary factors. These factors include insurance coverage or the style and control of reporting by public institutions, as far as they are considered the victim. With clearance rates ranging from 5 to 20 percent, burglary is a more reliable indicator as far as international comparisons go. Robbery might also be a good indicator of serious crime, were it not for the inclusion by police of minor incidents such as pickpocketing. Similarly, motor vehicle theft has a high rate of incidence, but the data is unreliable for measuring effective theft, particularly because in many countries mere joyriding is treated differently. The most serious crimes, such as homicide, carry very high clearance rates, but the registration of attempted crimes causes some problems for international comparisons. In a country like The Netherlands, where police take a very liberal approach to registering attempts under the homicide category, rates seem unrealistically high in comparison to those cases giving cause for the prosecutors’ charge. Therefore, only completed homicides provide a valid indicator and even for these cases police registrations should be compared to the records of hospitals and other

ta b l e 2 . 1 1 Cases Disposed of by Prosecutors, Western European Countries, 1995

Cases disposed of per 100,000 inhabitants Cases dropped (percent) Cases sanctioned (percent) Cases charged before a court (percent) Other (percent)

Austria

England/ Wales

France

Germany

Italy

The Netherlands Portugal

2,520

2,532

8,110

4,103

5,613

1,677

4,074

6,995

53

12

0,086

46

—

21

74

—

—

—

0,002

22

—

22

—

—

45 —

0,078 —

0,012 —

13 0,019

— —

46 —

26 —

— —

Spain

s o u r c e : Council of Europe (1999). n o t e : Prosecutors in some countries get all police cases; in other countries, only those that the police have cleared (i.e., a suspect has been named). The variation can be seen from the data: where cases dropped are more than 50 percent, it seems clear that “uncleared” cases are among them. For example, in France, 60 percent of all prosecution cases have no suspect; and another 28 percent are classified “sans suite” (“without continuation” or “without result”). Germany here reports only cases with a known suspect, but a sizable number are dropped after nonjudicial resolution.

82 Erhard Blankenburg ta b l e 2 . 1 2 Police Reports and Prosecutions of Crimes, Western European Countries, 1995 Austria

Homicide, actual and attempted Police report Health service reports Convictions Rape Incidents Offenders Convictions Robbery Incidents Offenders Convictions Assault Incidents Offenders Convictions Burglary Incidents Offenders Convictions Motor vehicle theft Incidents Offenders Convictions Drug offenses Offenders Convictions

England/ Wales

France

Germany

Italy

The Netherlands

19.3 1.8

Portugal

Spain

— 4.1

2.5 —

2.3 1.1

5.0 1.8

5.1 3.0

4.8 1.7

2.7 1.4

1.0 0.7

— 1.3

1.1 1.3

1.1 1.1

3.5 1.0

1.1* 5.8

1.6 3.4

0.9 1.0

7.1 5.0 1.7

1.7 2.0 1.7

12.6 10 2.1

7.6 6 1.5

9.6 5 1.1

8.9 7 2.1

5.4 6.0 1.3

4.1 3* 0.6

26 14 6

50 15 10

128 35 11

78 46 11

132 20 16

102 44 22

145 105 16

— 45 92

400 363 124

38 148 5

122 97 68

371 351 51

393 37 53

181 117 35

350 428 27

23 18 8

648 65 28

373 34 —

745 82 —

838 119 37

2,395 0,123 00,68

3,058 0,302 —

507 129 —

— 96 —

93 26 — 144 142 40

537 29 0.9 67 84 4

780 67 — 136 136 40

322 65 — 194 152 47

982 39 15 41 166 61

175 28 — 65 82 27

253 — 13 39 — 19

461 — — 22 57 2.9

s o u r c e : Council of Europe (1999). n o t e : Numbers are per 100,000 inhabitants. *1994 figure.

health service providers in order to gain a measure of reliability. Rape incidents are being taken seriously everywhere. Sensitivity toward such cases and the willingness of victims to report such incidents to the police have increased due to the activity of women’s groups. Once reported, clearance rates are high but conviction rates are low, except in Italy, where clearance rates tend to be low but conviction rates high—a clear sign of different registration practice among the agencies of criminal prosecution. The statistics shown in Table 2.12 demonstrate the extent to which these variances among definitions and criminal recording procedures by the police, the prosecu-

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83

tion, and the courts affect rates of incidence and conviction from country to country. Because different crimes form different patterns, lumping them together into overall rates does not make sense. Only by segregating the statistics and evaluating the entire pattern can we evaluate how criminal justice systems work. Nevertheless, several overall trends are evident. High crime rates do not necessarily lead to higher conviction rates. Rather, it appears that the contrary is true. Countries in the middle in terms of crime rates (incidence as well as offenders) rank highest on conviction rates. And, Austria, which has the lowest crime rate, scores highest with respect to convictions. This pattern can be seen in more detail through examining court data (see Table 2.13), which is more valid than the crime rates of police and the prosecutor’s office. However, the figures cannot be related without some qualifications. The police and the prosecutor’s office count incidences of crime or cases (which may contain several suspects), while courts count each defendant separately. Depending on the type of crime, the figures may differ greatly. Looking at the rate of defendants sentenced indicates where in the chain of the justice system the decision to sanction lies. In countries like Germany and The Netherlands, the prosecution office has the discretion to decide upon petty cases (in these two countries 22 percent of all suspects are sanctioned by the prosecution). Excluding the French data (which cannot be interpreted on the basis of available information), the rank order of countries forms a pattern similar to that seen in other areas of law. Germany and Austria rank highest in applying penal sanctions; followed by England/Wales, where juvenile sentences make up a particularly high share; followed by Germany. It is obvious that the majority of crimes, which are not fully pros-

ta b l e 2 . 1 3 Criminal Justice, Western European Countries, 1995

Police incidents Prosecution cases Court sentences: Adults Juveniles Appeals Cassation/revision

Austria

England/ Wales

France

Germany

Italy

The Netherlands

Portugal

Spain

4,526 2,137

9,842 2,529

24,449 18,682

8,161 —

3,955 8,431

7,928 —

3,292 4,198

2,279 9,348

981 42 56 12

604 137 77 —

2,047 — — 61

985 121 68 5

279 20 111 75

360 — 119 29

361 57 48 15

432 34 — 12

s o u r c e : European Database on Judicial Systems (2000). n o t e : Numbers are per 100,000 inhabitants.

84 Erhard Blankenburg ta b l e 2 . 1 4 Prison Population, Western European Countries, 1990, 1995, and 1997 Austria

England/ Wales

France

Germany

Italy

The Netherlands

Portugal

Spain

82 76 82

90 99 120

82 89 90

82 81 90

57 87 86

44 55 * 87

87 140 145

85 102 113

1990 1995 1997

s o u r c e : Council of Europe (1999). n o t e : Numbers are per 100,000 inhabitants. *1994 figure.

ecuted in court, are dismissed. In most countries, about 80 percent of all cases at the prosecutors’ offices have to be dismissed because no suspect has been found. Only Austria achieves a better clearance rate. A final area for international comparisons of criminal justice systems is the prison system. While Western Europe experienced a rather modest increase in crime rates in the 1990s (Council of Europe 2000, 38), the prison population grew considerably. These growth rates are shown in Table 2.14. The biggest increase occurred in The Netherlands, which doubled its population of prison inmates between 1990 and 1997, continuing an upward trend that started in the mid-1980s. This drastic increase, which represents a reversal of The Netherlands’ traditionally low incarceration rates, can be partly explained by the rise in serious crimes, particularly organized crime involving international criminals. It also reflects a tendency of courts to apply stiffer sentences. Other Western European countries have experienced similar trends, due to general patterns of increased cross-border crime and the growing tendency to impose tougher sentences, particularly for violent crimes (Council of Europe 1995).

Budgets Judicial budgets have enjoyed a general growth trend in Europe since 1995 (Table 2.15). However, given the vast differences in numbers of judicial personnel, civil litigation rates, and criminal prosecution rates, it is not surprising that judicial budgets vary widely among Western European countries. The variation we find in those budgets is a function, in part, of salaries and, in part, of organizational differences. As expected, Germany ranks first in terms of judicial expenditures; but German courts earn 57 percent of their costs through fines and court fees (Table 2.16). Still, the magnitude of the budgetary difference is amazing:

Judicial Systems in Western Europe

85

Germans pay more than twice the per capita costs of their Austrian and Dutch neighbors. Unfortunately, we cannot draw valid comparisons with France, Portugal, and Spain because the net figures in those countries do not differentiate between gross expenditures and revenues from court fees and fines. Judicial expenditures in England and Wales also are well below those of Germany. The British system of justice does not cover all court costs: it ta b l e 2 . 1 5 Growth in Judicial Budgets, Western European Countries, 1995 –1999

Average yearly rate of growth (percent)

Austria

England/ Wales

France

Germany

Italy

The Netherlands

Portugal

Spain

—

2.3*

3.6 †

3.0

10.0

15.1

—

4.7 ‡

s o u r c e : Computed on base of gross budget data: European Database on Judicial Systems (2000). n o t e : Rates look slightly different if converted to Euros, especially for Italy (inflation) and England (deflation). *From 1994 to 1998. † From 1997 to 1999. ‡ Does not include prisons; from 1995 to 1998.

ta b l e 2 . 1 6 Judicial and Penal Budgets, Western European Countries, 1995

Judicial expenditures † revenues (fines, court fees) Legal aid ‡ expenditures revenues Net budget Prisons expenditures § revenues Ratio expenditure ECU per prisoner

Austria

England/ Wales

France* (1997)

Germany

Italy

38.5

17.2

16.0

87.6

41.3

33.1

⫺57%

⫺6%

⫺60%

36.4

29.3

⫺62%

The Portugal Netherlands (1999)

3.0

incl.

19.0

37.4

31.9

12.0 0 23.5

Spain

14.6

32.0 ⫺11.3 45.8

10.0 —

26.5 —

19.0

23.6 9%

32.3 0.04%

40.9 12%

16.0 —

13.0 —

.13

.27

.24

.29

.37

.74

.13

.12

s o u r c e : European Database on Judicial Systems (2000). n o t e : ECU exchange rates valued as of December 1, 1995. The figures for France and Portugal are based on Euro rates. *French figures do not show real expenditures/revenues; they show the net budget. † Gross figures, revenues not deducted. ‡ Legal aid subsidies (civil/social and administrative law) and duty solicitors (penal defense) in most countries remain within the judiciary budgets, while in England and Wales and The Netherlands they are taken out and listed separately. Compare Table 2.3. § Prison budgets excluding probation services. They should include operational plus capital costs, but in some countries investment in prison buildings might not be included. Compare the European Sourcebook of Crime and Criminal Justice Data, which tries to separate the two; some of their indicators (see, for example, Spain) do not seem reliable.

86 Erhard Blankenburg relies on local money for lower courts with their low-paid magistrates, and it does not cover all special tribunals, which are budgeted instead in nonjudicial departments. (In most other countries, special tribunals are integrated into the judiciary.) Table 2.16 also shows expenditures for prisons and per capita spending on inmates. Of special interest here is the relationship between prison population (see Table 2.14) and expenditures on prisons. The Netherlands had the highest prison expenditures in 1995 despite the lowest prison population of the countries we studied.20 Its overall budget and extremely high spending per inmate could indicate the priority the Dutch government places on prisons in its crime-control policies. There are a couple of factors to consider when comparing judicial budgets among Western European countries. First, in all of the countries we studied, more money was spent on the police than on the judicial system or the prisons. The judiciary and the prisons competed for second place.21 Second, public expenditures across Western Europe generally run less than 50 percent of the GDP. The judiciary’s share of the public budget—for national, provincial, and local courts—amounts to just 2 to 4 percent, or 1 to 2 percent of the GDP.22 These factors together produce astounding differences in judicial budgets. There are two main methods used in Western European countries to try to cover their costs of civil and administrative courts: some countries attempt to cover court costs by raising court fees for each procedure; others gain revenues by court-imposed fines, but the amount gained depends on fiscal rules, which leave some fines to be levied by communities (parking tickets) or police (traffic fines) and others to be levied by the courts. Revenues are not directly related to the costs of judicial services. Public services do not allow for a strict price allocation by time and effort spent (as do hourly fees of lawyers), but rather by some kind of redistributive scheme. Thus court fees are not determined by costs and time spent, but rather by fixed schemes, so that they form a mixed calculation where the mass of short routine procedures usually subsidizes the more elaborate long procedures (particularly if the amounts at stake are small). The degree to which such a scheme is considered to cover the costs of civil procedures varies. (In other branches of the judiciary, there is not even an attempt to reach such a goal.) Some countries (like Spain) do not allow fees to be raised for procedures that they consider public service. As far as the civil courts are concerned, an attempt has been made in England and Wales for many years to ensure that the civil justice system is to a substantial degree self-financing, and it has been accepted that the fees imposed on users of the civil courts should largely, if not wholly, meet the costs of the civil

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87

justice system, howsoever defined. This requirement has been made more and more rigorous over the years, and it is current government policy that it should approach 100 percent. By 1996 –97, these fees covered 91.3 percent of the Court Service’s total costs of court business relating to the civil courts. This figure includes charges for accommodation, judicial salaries, and the proportion of management costs attributable to the civil courts but it does not include capital costs. The second principal method of raising funds for the judiciary—fines imposed by the courts—generally yields more revenue than do court fees. If the offenders are charged before court, or if they protest an administrative fine and thus have to appear in court, this will benefit court budgets. There are also transaction fees, levied by the prosecution, which are used for most petty crime cases in French, Belgian, and Dutch courts. The degree to which penal and administrative fines are allocated to the courts themselves varies, but usually fines imposed by police and by communities (for parking and traffic offenses) are budgeted with fiscal authorities and fines imposed by courts as well as settlement fees are budgeted with the judicial services.23 They can cover a great deal of judicial costs. (Even within single countries coverage can vary: among the German states they vary from almost 100 percent coverage in Bavaria and Baden-Württemberg to 40 percent in others, with an average of 57 percent). Table 2.16 shows the effect of revenues for three countries (Austria, Germany, and The Netherlands) where the judicial budgets receive considerable revenues for the judiciary. Germany stands out with the most extensive court system in Europe, but it manages to cover more than half of its costs by revenues. This way the overall budget comes close to the Italian or Portuguese expenditures that are hardly compensated by revenues. Other countries like Austria, England and Wales, and The Netherlands stay well below their expenditures, and because they receive considerable revenues, they maintain a relatively low net budget.24 legal aid as a cost factor Wherever court fees are very high, legal aid schemes compensate poor parties in order to facilitate their access to justice. In traditional legal policy this takes the form of court fee waivers (which might be seen as a reduction of revenues from fees). To the degree, however, that countries extend legal aid to also cover lawyer costs, that aid forms part of the judicial budget. It might seem plausible that it is mainly in Common Law countries that lawyer costs are seen as an essential part of access to law, as here most of the procedural work is left to the parties and is much less a responsibility of the courts. But the idea of legal aid for lawyers also caught on in some of the

88 Erhard Blankenburg more generous welfare states of the 1980s, such as the Scandinavian countries and The Netherlands. No country in Europe, however, runs a legal aid scheme as comprehensive and as expensive as that of England and Wales, with legal aid costs amounting to more than the net costs of civil and criminal justice. Including legal aid in the budget of the departments of justice means including parts of the forensic activity of the legal profession in the concept of “public costs of justice.” Countries with high legal aid provisions thus work according to official fee schemes. To the extent a sector of the legal profession becomes dependent on legal aid subsidy, it is included in the budget and the concept of the system of justice. Critics therefore label these a partly socialized legal profession. On the other hand, some argue that countries with insignificant budgets for legal aid, including consultation out of court as well as representation in court, do not fulfill minimum standards in granting equal access to justice.

Constitutional Review and Review by European Courts The idea that judges and even citizens could turn to the courts to test national legislation on constitutional grounds has not been an established tradition in European legal systems. In continental positivist thinking, codifying the law was considered a political task; the judiciary’s task was restricted to implementing statutory laws. Under the constitutional monarchies of the nineteenth century, liberal reformers repeatedly promoted judicial review. In Germany and in The Netherlands these efforts were not successful. Other countries introduced constitutional review with jurisdiction over conflicts between different sovereignties and organs of the state. Such a system was introduced in Italy after 1860 and in Hungary and Austria in 1878. However, only after World War I did Austria introduce an open system of constitutional review, granting ordinary courts jurisdiction to interpret constitutional principles. Between the two World Wars, none of the other European countries followed this lead. Over the past fifty years, this situation has changed along with the constitutions of those countries that have left behind their systems of totalitarian rule (whether fascist or communist). In 1950, for example, the Federal Republic of Germany established a federal Verfassungsgericht (later so did the Länder ) with far-reaching constitutional jurisdiction. As this model was better adapted to the Civil Law tradition, other countries followed its example. Spain established its Tribunal Constitucional in 1978, with Portugal following in 1982. Both allow for judicial review upon the courts’ request or complaints filed by citizens, after having exhausted regular judicial remedies.

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89

These constitutional courts offer a variety of procedures, which can be summarized in three basic categories of access: • They perform functions of a state court for norm control initiated by political office holders and parliamentary groups (in France this holds true for a very limited number of issues and a review of statutes in the legislative process). • As a rule they offer ordinary judges (and thus indirectly also parties) the right to request a ruling on any constitutional issue arising in cases pending before ordinary courts. • Some open the gates to popular constitutional complaints, which can be filed by anyone who is affected by violations of the constitution or by actions of the government or any other public body. A number of European countries, however, do not have a system of constitutional review by the courts. The name of the French Court Constitutionel (which has been in existence since 1956) is misleading; in reality, it is limited to reviewing new legislation. While The Netherlands and the United Kingdom do not have constitutional courts, they both submit to the jurisdiction of the Human Rights Court of the Council of Europe. They also permit a limited number of European Treaty issues to be reviewed by allowing parties and courts to raise pre-judicial requests before the European Court at Luxembourg.

Trust in Courts While the tendencies toward judicial growth are common to countries in Western and Central Europe, they take place at different levels of judicial development. Often an explanation for differences between legal systems is sought in terms of “national character.” Presumably differences in attitudes toward law do exist and folklore readily sustains this note with illustrative anecdotes. Attitude patterns with respect to the law can be measured if we ask questions regarding values and expectations. Gibson and Caldeira (1995) have administered a sophisticated questionnaire to measure “legal consciousness.” Of course, taking countries as their units of factor analysis, their work does not reveal distributions and stratification of attitude patterns. Still, they allow a plausibility test of the relationship between attitudes and the institutional indicators analyzed here. Gibson, Caldeira, and Baird (1998) measured attitudes toward the highest courts in each country (Table 2.17). In some countries this was identified as the constitutional court, while in others as the court of cassation or final appeal. They ranked answers by aware-

90 Erhard Blankenburg ta b l e 2 . 1 7 Respondents’ Awareness of and Trust in Their National High Court, Western European Countries, 1993

Awareness Trust

Italy

The Netherlands

Portugal

Spain

Very low Fair

High High

Fair Fair

Very low Fair

Germany

England/ Wales

France

West

East

Very high High

Low Fair

Very high High

Very high Low

s o u r c e : Gibson, Caldeira, and Baird (1998). n o t e : There were no data for Austria.

ness or knowledge regarding this institution. They asked respondents both how much they knew about the highest court and how much trust they had in the institution. Awareness levels range from a high of 48 percent in West Germany to lows of 6.5 percent in Spain and 4 percent in France. Difficulties of identifying the respective legal institutions notwithstanding, awareness rates correlated highly with trust in the high courts. Again, the authors were wise in differentiating between generalized trust in the system of justice as a whole, which tends to remain stable, and short-term satisfaction, which tends to fluctuate with controversial decisions on issues such as abortion, religious freedom, and immigration policies. Short-term dissatisfaction, however, flattens out after some time so that the regression line between the two can be taken as a valid indicator of trust in the high court and (on the basis of a high correlation) with generalized trust in the legal system as a whole. Considering the general pattern of the items, the attitude survey arrives at North-South and East-West divides across Europe. Generalized trust is high in Great Britain, The Netherlands and West Germany; trust is medium in Portugal; somewhat lower in France; and quite low in Spain and Italy. East Germans and people from Communist countries rank low on trust. In addition to levels of trust, one might ask questions regarding norms and values related to the law. Gibson and Caldeira (1995) asked such questions in attitude surveys by testing reactions to a set of statements, which are generally considered valid indicators for the values people attach to the rule of law and the degree to which they feel alienated from the law. Reactions to a number of statements may be clustered to reveal general attitudes. Three such statements, which are often used in national surveys, are provided below as examples: • Compliance with law: “It is not necessary to obey a law which you consider unjust.”

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91

• Alienation: “It is rare that law is on my side; usually I find laws to be restrictive and against my interests.” • Order above freedom: “It is better to live in an orderly society than to allow people so much freedom that they can become disruptive.” Table 2.18 shows how respondents in national surveys reacted to the three statements and the legal values reflected in them. German (in the Eastern part more so than in the West), British, and Dutch respondents are clearly more “law and order” oriented. They are more willing to comply, even if they disagree with a legal norm. They emphasize order above disruptive freedom and they are less likely to view the law as opposed to their interest. People in the Latin countries tend to feel more alienated from law. They value freedoms over order and would be less likely to follow rules they deem unjust. The Portuguese respondents remain largely in the middle between these two extremes. But what do such mentality patterns explain? Certainly, they do not explain the many institutional differences of legal cultures that we have analyzed, and they hardly determine the costs and benefits that people weigh in deciding whether to consult a lawyer and go to court. For example, Germany, which has the most extensive system of courts, is found in the same attitudinal group as The Netherlands, which tends to avoid litigation; and Mediterranean countries like Spain and Italy have an abundance of lawyers compared to France (Table 2.1), which nevertheless shares a relatively low legitimacy and alienation score with them. And how to explain the British system’s high investment in legal aid (despite its otherwise austere expenditures), compared to the virtual absence of legal aid in Germany and the Mediterranean countries? It might be feasible to view these attitude patterns together with institutional features. However, there is no consistent correlation between popular attitudes and particular institutional design types. Perhaps some of the nata b l e 2 . 1 8 Respondents’ Attitudes Toward the Law, Western European Countries, 1993

Compliance with law: “not necessary” Alienation from law: “not on my side” Order above freedom

Germany

England/ Wales

France

West

East

Italy

17

24

24

18

38

18

34

34

20 79

27 73

16 69

20 91

44 68

24 68

32 79

34 71

s o u r c e : Gibson, Caldeira, and Baird (1998). Labels are our own. n o t e : Numbers represent percentage of respondents agreeing.

The Netherlands Portugal

Spain

92 Erhard Blankenburg tional attitude patterns explain behavior by way of shaping typical attitudes of the legal professions, but they might just as well be the result of them. Most of the stories about so-called “national legal cultures” which provide such entertaining talk at faculty clubs circle around characteristics of the diverse legal professions, judges’ careers, and court procedures—few of these stories represent the expectations that ordinary people might have of lawyers and courts, their reasons for accessing or avoiding them, or the extent to which they trust lawyers and courts, based on past experiences with them. These attitudes, however, that they (i.e., people in their private lives as well as people in business and in other organizations) have toward the law and its institutions are shaped by the supply of legal remedies, the costs and conditions of access, and the experiences people have encountered with them. They are institutionally determined, seen through the looking glass of national attitude patterns. Calling them legal cultures 25 implicitly shares an assumption that institutions are an expression (implying cause) of attitudes. We might, however, turn the causality around, considering legal institutions as the chicken and popular attitudes and expectations about law as the egg.

Notes 1. This is particularly so in administrative and labor tribunals and in other courts of special jurisdiction. 2. The use of different terms such as advocates on the Continent and solicitors and barristers in England (and lawyers in the United States) already shows the widely different definitions of the profession. We use here “attorneys” to describe all lawyers who are qualified to represent parties in court—independent of whether they actually work forensically. 3. This was due in part to a growth policy and to the introduction of a two-tiered administrative court procedure. 4. A special settlement procedure in Norway has for more than one hundred years taken care of part of the potential litigation activity (Wollschläger 1989). 5. Even though designed to be only preliminary, parties often do not continue with the main procedure. The Dutch presidents of courts in particular use the equivalent kort geding explicitly as a shortcut alternative for a whole range of civil disputes. 6. For an overview of the current discussion with a number of fairly comparable country reports, see Zuckerman (1999). 7. The European Community Commission following a recommendation of the Commission Storme suggests summary debt enforcement as a model civil code provision, but so far it has not been able to effectively encourage uniform implementation.

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8. The limited increase is due in part to East German legal activity in 1995 not yet being at the West German level, but looking at West German statistics alone shows that the attempts at curbing litigation activity has been quite successful. 9. For more extensive documentation see Blankenburg (1989). 10. The results of a comparison of credit card collection in Germany and the United States by Ruhlin (2000) might be seen as confirmation that such prevention is more necessary when efficient debt collection by court procedures is lacking. 11. This also holds true for England (Markesinis 1990). 12. In the German termination statistics shown above almost half of all first instance filings before lower courts are never taken up; advocates usually file them “just in case.” In Dutch courts—and possibly other countries too—these would not even be counted as “cases.” 13. Only in Denmark can divorce be dealt with by a city office. Thus 90 percent of couples use the administrative procedure, and only 10 percent are so contentious that they go to court (Blegvad 1989). 14. While it is fair to maintain the especially high appeal rates relative to population size, it is not possible to compute a rate of how many first instance cases reappear in appeal because Austrian statistics do not count default cases in first instance. 15. When courts get clogged, court officials may resort to the introduction of summary and simple procedures. Often, such plans are announced as a temporary alternative, but the option invariably remains, even after the immediate overload has diminished, so that parties have a greater choice of forum. 16. This was particularly so in East Germany which suffered massive dismissals after unification. 17. In the 1990s, however, several countries saw an increase of claims regarding wages, discrimination, and so forth, partly (as in the United Kingdom) encouraged by expansion of the jurisdiction of tribunals. 18. Thus until 1990 German administrative court litigation rates were by far the highest among the countries compared. But by 1995, the Spanish rates had surpassed them and the Dutch rates had almost caught up, despite more extensive informal proceedings in The Netherlands and a continued increase in German litigation rates. 19. Surveys among private citizens, however, cover only about two-thirds of all criminal offenses; in the remaining one-third, public institutions, private business, and public order in general are the victims. 20. Council of Europe data over the last two decades show very high expenditures on prisons in The Netherlands, even when the prison population there was half its mid-1990s size. 21. In Germany and Austria, the judiciary came in second. In The Netherlands, which we noted above spends a great deal on prisons, spending on prisons exceeded that on judicial operations. 22. In England and Wales, the judiciary budget is less than 1 percent of the GDP. 23. A unique feature of German law allows prosecutors as well as courts to allocate settlement fees to charitable organizations. 24. Two countries (France, England and Wales) publish net data only so we can

94 Erhard Blankenburg compare only the net budget. The expenditures and revenues for Spain and Portugal are not shown because neither country’s judiciary gains significant revenues. 25. For an extended discussion see Nelken (1996). In the use of the term, most authors follow the American literature, which defines “legal culture” in terms of “attitudes and values with respect to law,” thus following the definition by Friedman (1975, chap. 8).

References Abel, Richard, and Philip Lewis, eds. 1988 –1989. Lawyers in society. 3 vols. Berkeley: University of California Press. Advisory, Conciliation, and Arbitration Services (ACAS). 1995. Yearly report. London. Berends, Mieke. 1992. Lawyers in society: An elusive profession? Law & Society Review 26: 171. Blankenburg, E., ed. 1989. Prozeßflut? Indikatorenvergleich und Rechskulturen auf dem europäischen Kontinent. Cologne: Bundesanzeiger Verlag. ———. 1999. Lawyers’ lobby and the welfare state: The political economy of legal aid. In The transformation of legal aid, edited by Francis Regan, Alan Paterson, Tamara Goriely, and Don Fleming. Oxford, England: Oxford University Press. Blankenburg, E., and Ralf Rogowski. 1986. German labour courts and the British industrial tribunal system. British Journal of Law and Society 13: 67–92. Blegvad, Britt-Marie. 1989. Prozeßflut aller Orten: Daenemark ein Gegenbefund und seine Ursachen. In Prozeßflut? Indikatorenvergleich und Rechskulturen auf dem europäischen Kontinent, edited by E. Blankenburg. Cologne: Bundesanzeiger Verlag. Council of Europe. 1995, 1999, 2000. European sourcebook of crime and criminal justice data. Strasbourg. Dijk, V., Mayhew, and Killias. 1996. Key findings of the International Crime Victims Survey. Deventer: Kluwer Law. European Database on Judicial Systems. 2000. IRSIG-CNR ëdizioni. Bologna: Edizone Scientifice Lo Scarabeo. Friedman, Lawrence. 1975. The legal system. New York: Russell Sage. Gibson, James, and Gregory Caldeira. 1995. The legal cultures of Europe. Law & Society Review 30: 55 – 88. Gibson, James, Gregory Caldeira, and Vanessa Baird. 1998. On the legitimacy of national high courts. American Political Science Review 92: 343 –58. Markesinis, Basil. 1990. Litigation mania in England, Germany, and the USA. Cambridge Law Journal 49: 233 –76. Nelken, David, ed. 1996. Legal culture. Hampshire, England: Aldershot. Ruhlin, Charles. 2000. Credit card debt collection and the law: Germany and the United States. In Regulatory encounters (255 –74), edited by Robert Kagan and Lee Axelrod. Berkeley: University of California Press. Wollschläger, Christian. 1989. Die Arbeit der europäischen Zivilgerichte im historischen und internationalen Vergleich. In Prozeßflut? Indikatorenvergleich und

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Rechskulturen auf dem europäischen Kontinent, edited by E. Blankenburg. Cologne: Bundesanzeiger Verlag. ———. 1998. Exploring global landscapes of litigation rates. In Soziologie des Rechts, edited by Jürgen Brand and Dieter Strempel. Baden-Baden: Festschrift. Zuckerman, Adrian, ed. 1999. Civil justice in crisis. New York: Oxford University Press.

ch apter

Debased Informalism: Lok Adalats and Legal Rights in Modern India

3

marc galanter and jayanth k. krishnan

It is cheaper for complainants to submit to be plundered than to seek redress. —Revenshaw

india has pulled off the astonishing feat of sustaining a regime of constitutional liberty, with vigorous judicial protection of human rights in a very large, very poor, and very diverse society. In the face of daunting obstacles, the Indian courts have managed to sustain a regime of constitutional order and legal regularity. With scant material resources, the Indian courts have adapted the structure of colonial law to the vastly different conditions of an independent democratic India and to protect and extend constitutional liberty.1 For all the system’s flaws and imperfections, this is surely one of the epic legal accomplishments of our time. Yet it has gone largely unappreciated by supporters of democracy and the rule of law. The flourishing of a legal order requires not only the leadership of judges and the mediation of lawyers but also the responsive participation of the citizenry. For the law to infuse the practices of institutions and inform the dispositions of citizens, those citizens need access to the law’s protections and remedies. Because courts are passive institutions, they have to be moved by citizens. One of the glories of the Indian legal system is that citizens have direct access to the higher judiciary to effectuate a vital set of fundamental protections.2 But for most citizens, in most matters, the site at which they could use the system is the lower courts. At the very time that the higher reaches of the Indian legal system have proved extraordinarily responsive and resilient, its lower reaches seem to be trapped in a downward spiral of ineffectiveness (Bearak 2000).

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In this chapter we examine the problems that plague India’s lower courts and trace the evolution of dispute forums outside the courts. We focus on the currently much favored lok adalat forum where disputes are mediated, describing their functioning and assessing their performance. Finally, we suggest preferable strategies by which India might serve the legal needs of the vast majority of its citizens. We conclude that to truly recognize and protect the legal rights of those citizens, India must move beyond simply promoting the lok adalats.

Litigation in India: A Comparative Context Since colonial times, it has been widely believed that the Indian population is extremely litigious.3 In British India the prevalence of litigation over land gave credence to this view, but in independent India, this bit of received wisdom is far off the mark. In fact, while by no means yet conclusive, there is some evidence that the rate of utilization or invocation of the courts by the citizens of India is rather low. Reliable data are scarce, and the state of recordkeeping makes collecting them a daunting task; but some bits do suggest that the per capita civil litigation rate in India is among the lowest in the world. Before his untimely death, Professor Christian Wollschläger (1998), the trailblazer of comparative judicial statistics, compared the per capita rate of civil cases filed in some thirty-five jurisdictions over the ten-year period from 1987 to 1996. He found that annual rates of filing in courts of first instance per 1,000 inhabitants ranged from 123 in Germany and 111 in Sweden at the high end to 2.6 in Nepal and 1.7 in Ethiopia at the bottom. Because no national data are available for India, Wollschläger included in his comparison figures on Maharashtra, one of India’s most industrialized states, whose capital (Mumbai, or Bombay) is India’s financial center. Maharashtra ranked thirty-second of the thirty-five jurisdictions, with an annual per capita rate of just 3.5 filings per 1,000 persons. A few qualifications are needed to frame the comparison. First, the rate is skewed somewhat by India’s relatively young population. In the developed countries at the top of the list— Germany and Sweden—16 percent and 19 percent, respectively, of the population is under age fifteen. In India, young people make up 36 percent of the population.4 Second, societies differ in the matters they assign to lawyers, courts, and alternative institutions; and the nomenclature and record keeping of these alternatives may defeat any attempt to include them.5 Thus in Maharashtra, the count included matters litigated in courts but did not include cases brought to tribunals of various sorts.6 Finally, delays and court fees in India’s civil courts may induce some potential claimants to divert their efforts to the criminal courts. It is true that Wollschläger looked only at a single state and one ten-year

98 Marc Galanter and Jayanth K. Krishnan period, which raises a question about the representativeness of his finding for India overall. But there is no reason to think that Maharashtra has less litigation than India as a whole, because the data point to a general correlation of court use with economic development. Although its presentation of Indian data contains glaring scholarly deficiencies, a recent Asian Development Bank (ADB) study of legal institutions in six Asian nations— China, Japan, Korea, Malaysia, Taiwan, and India— offers rough confirmation both of the absolute level of litigation in India and its low comparative rank (Pistor and Wellons 1999). Comparing India with China, Taiwan, Korea, Malaysia, and Japan, the ADB study finds that in India, the rate of filing cases in the lower civil courts was 1,209 per million (1.2 per 1,000) population in 1995.7 This is about one-third as many cases as Wollschläger found, which probably reflects the differences between Maharashtra and India as a whole, as well as the differences in the acuity of the researchers. The Indian rate is only slightly higher than the Chinese rate, but the Chinese figure includes only commercial cases.8 And the Indian rate is far lower than that of the other countries in the ADB comparison. Malaysia, whose legal institutions most resemble those of India, had a civil litigation rate in 1990 of 17,850 cases per 1 million inhabitants (17.8 per 1,000)—almost fifteen times that of India. And India’s rate was well below those in Korea (14.7 civil cases per 1,000 inhabitants excluding family-law cases) and Japan (3.4 per 1,000), two societies that are known for being nonlitigious. Obviously, these comparisons are far from exact, but as rough as they are they put into question the notion that the Indian courts are victims of an excessively litigious population. Are these low rates of court use an inheritance from the colonial past? Robert Moog (1993) examined litigation rates in the northern state of Uttar Pradesh from 1951 to 1976. (In 1976 the state stopped issuing these statistics.) He found that per capita civil filings in all district-level courts in Uttar Pradesh had fallen dramatically, from 1.6 cases per 1,000 persons in 1951 to only 0.9 case per 1,000 in 1976. Going back even further, Oliver Mendelsohn observes that “there is now less litigation in absolute terms than there was in the nineteenth century or the first half of the . . . [twentieth] century and, therefore, far less relative to population” (1981, 849). That this downward trend continued toward the end of the twentieth century received some confirmation from the ADB study, which reported 0.6 civil case per 1,000 inhabitants in 1960 and just 0.5 case per 1,000 in 1995 (Pistor and Wellons 1999).9 Again, such a fall might reflect the decrease in adults as a portion of the total population and diversion into tribunals, as well as the effect of land reforms. But again we find the data contravene the dominant perception of India as increasingly litigious.10

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Perceptions and Realities of Litigation in India How can it be that despite the low rate of civil litigation, there is a widespread perception that the courts in India are inundated with cases, that frivolous litigation is rife, and that there is an abundance of hungry lawyers? Is there a connection between the relative scarcity of litigation and the impression that there is so much of it? Certainly the Indian courts are desperately congested, even though the number of cases filed is small on a per capita basis. In 2002 there were “23 million pending court cases—20,000 in the Supreme Court, 3.2 million in the High Courts and 20 million in lower or subordinate courts” (Debroy 2002). The courts appear to be heavily used because there are relatively few courts and few judges staffing them. As Table 3.1 shows, common law countries tend to have fewer judges per capita than do civil law countries. But India has only one-tenth to one-sixth the number of judges per capita found in the developed parts of the common law world. Indian courts tend to be poorly equipped and inefficient. Apart from the physical and technical deficiencies of the courts, outmoded procedural laws provide abundant ta b l e 3 . 1 Numbers of Judges, Common Law and Civil Law Countries Year

Judges

Judges per 100,000 inhabitants

Common law countries United States England and Wales * Canada Malaysia India

1998 2001 1991 1990 1995

28,049 3,518 1,817 274 9,564

10.4 6.6 6.5 1.6 1.0

Civil law countries Germany Denmark France South Korea Japan

1995 1997 1997 1995 1999

22,134 653 6,287 1,212 2,949

27.1 12.4 10.7 2.7 2.3

s o u r c e s : Canada: www.oip.usdoj.gov/bjs/pub/ascii/wfbcjcan.txt ( judges); Denmark: www .uncjin.org/Statistics/WCTS/WCTS6/Publication.pdf ( judges); England and Wales: www.open .gov.uk/lcd/judicial/judapp.htm ( judges); France: Loic (1999) ( judges); Germany: European Research Network on Judicial Statistics (ongoing); India: Pistor and Wellons (1999) ( judges); Japan: www.kantoi .go.jp/foreign/judiciary/0620system.html ( judges); Malaysia: Pistor and Wellons (1999) ( judges); South Korea: Pistor and Wellons (1999) ( judges); Taiwan: Pistor and Wellons (1999) ( judges); United States: www.census.gov/ipc/ww/idbsum.html (population) and U.S. Bureau of Justice Statistics (1999) ( judges). *The population of England and Wales has been estimated at 89 percent of the population of the United Kingdom.

100 Marc Galanter and Jayanth K. Krishnan opportunity for delaying tactics, especially interlocutory appeals and stay orders.11 Judges, fearful of the bar, lack leverage to discipline lawyers or even to use the available tools to expedite proceedings.12 Delay is endemic: in 1997, almost one-third of the cases on the dockets of the district courts had been filed one to ten years earlier; one-quarter of cases sat for the same period in lower-level courts (Rajiv Gandhi Institute 1999). A recent story in the New York Times epitomizes the situation. The article highlighted a relatively simple property law dispute between two neighbors, a milkman and a meat cutter (Bearak 2000). Apparently the milkman had built a wall with two drains that leaked into the meat cutter’s yard. The meat cutter had won a judgment in 1961 declaring the drains illegal; but because of the inordinate number of appeals allowed by the Indian legal process, the case remained open for thirty-nine years—long after both parties had died! In the state high courts, more than 50 percent of all cases were more than three years old, 37 percent were more than five years old, and 14 percent were more than ten years old (Rajiv Gandhi Institute 1999). Cases linger interminably, and arrears mount (Bearak 2000). Lawyers, fiercely loyal to existing practices, resist reforms by acting collectively and by wielding their “street power” (Hegde 1987). Debroy (2002) describes how in 1999, Parliament passed amendments to the Civil Procedure Code intended to reduce delay; but lawyers’ public demonstrations and strikes forced the government to back away from the proposed reforms (Mitra 2000; and see Bearak 2000). One sign of the courts’ infirmity is public disdain for the lower courts. The public has low (and generally realistic) expectations of the law, of lawyers, and of the lower courts (V. N. Rao 1990; Rekhi 2002). Discontent with the lower courts goes back to the colonial period. Penderel Moon, a scholarly British district officer, concluded in 1945 that “in Indian conditions the whole elaborate machinery of English law, which Englishmen tended to think so perfect, simply didn’t work and has been completely perverted” (22). And a long string of observers agreed that the workings of the legal system in the lower courts were perverse or even pathological (Mendelsohn 1981; and Cohn 1959; also see Bose 1917; Connell 1880, Dickinson 1883; and Kidder 1978). Potential users avoid the lower courts whenever possible, many from ignorance but most from calculation. The source of the low use of courts and lawyers is neither that the courts are congested nor the absence of “legal literacy” among the masses of Indians; it is that lawyers and courts are able to deliver so little in the way of remedy, protection, and vindication (Desai 1981, Epp 1998).13 Instead the courts serve those who want to postpone paying taxes or debts or who want to forestall eviction or other legal action— generally, those who benefit from delay and the status quo:

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• “Backlog and delay provide a profound disincentive to settlement. Defendants who have achieved preliminary injunctive relief, benefit from the time value of money by refusing to settle, even in cases that they realize they are likely to lose” (Chodosh et al. 1997–1998, 31). • “The honest litigant is impeded in the asserting of his legal rights, while paradoxically enough, the dishonest litigant is encouraged to assert unfounded or exaggerated claims” (Rajiv Gandhi Institute 1999, 18). And as a local banker recently confided to a journalist, “We tell our clients to settle if they have a strong case and to go to court if it’s weak” (Gardner 2000, 21). A very high percentage of cases involve government bodies as parties. One observer estimates that the government is a litigating party in more than 60 percent of court cases and in an even higher percentage of cases before tribunals.14 When the government is a litigant, it tends to pursue cases simply for delay, engaging in relentless appeals even when the chance of winning is remote. For example, in the state of Uttar Pradesh, the government has lost virtually every case in which it has participated in the public services tribunal, yet it still appeals a large percentage of decisions to the state’s high court. And Uttar Pradesh’s state-owned bus company is involved in thousands of pending accident cases but refuses to make reasonable settlement offers, instead forcing the victim in each case to sue— even though the state loses on most occasions. This pattern of scorched-earth litigation fills the courts (and tribunals) with meritless claims (and defenses) and discourages meritorious claims by increasing the expense and delay of using these forums.15 For those who require vindication and prompt implementation of remedies and protections against dominant parties—women from husbands or relatives, laborers from landowners, citizens from government—the system works only haltingly, partially, and occasionally.16 Because so many of the potential meritorious claims are absent from the courts, it is not surprising that the claims that are present include a significant portion that are “frivolous” in the sense of being brought or maintained for purposes of harassment and delay. Given the long delays (and high interest rates at which future value must be discounted), mounting expenses, and meager damage awards, the present value of most suits for money damages is probably close to zero if it is not negative. Indeed much litigation in India can be described as a “sunk-cost auction,” in which the competitors invest ever-higher amounts in the hope of staving off larger losses.17 Widespread popular intuition of this produces avoidance of the civil courts. Many potential seekers of money damages instead pursue criminal complaints or seek injunctive relief. Legal controversy in India is not typically about money or reducible to

102 Marc Galanter and Jayanth K. Krishnan money. It is frequently about control of some valued resource: land, a house, a job, government recognition, a license, a resource that may not be readily reducible to a monetary equivalent. Even if a claim is phrased as one for money damages, it is rarely resolved by someone’s writing a check. Claims for money damages are often part of a more complex struggle between the parties. And when outcomes are not readily reducible to a monetary equivalent, it is difficult for the parties to quit the sunk-cost auction. For large sectors of society and large areas of conduct, civil courts afford no remedies or protections. When pressure builds to provide usable remedies for a particular sort of grievance, the solution, understandably, is not to undertake the Sisyphean task of reforming the lower courts: it is to bypass them. The writ jurisdiction, which provides direct recourse to the higher courts for violations of the Indian Constitution’s Fundamental Rights, can be seen in retrospect as the prototype for this bypassing strategy.18 The typical bypass strategy is to establish a tribunal with exclusive jurisdiction over certain types of cases—motor vehicle accidents, consumer complaints, or labor disputes, for example.19 The Central Administrative Tribunal, for example, has jurisdiction over “service matters,” including disputes about government employment, promotions, pensions, and the like. The forums created by these measures are courtlike: they weigh competing proofs and arguments within a framework of rules. In some instances (for example, motor vehicle accidents), the presiding officer is the very judge from whose court the cases have been removed. Some tribunals displace courts of first instance. Court fees are eliminated, and the procedures may be simplified. Other tribunals—for example, the Custom Excise & Gold Control Appellate Tribunal and the Income Tax Appellate Tribunal—hear appeals from administrative determinations.20 Still others, like the Debt Recovery Tribunals, hear only cases brought by banks and financial institutions; they have no jurisdiction to hear cases against those creditors.21 The notion is that tribunals will do a superior or at least more efficient job of adjudication than the regular courts. Yet many of these tribunals are plagued by overcrowded dockets, similar to those in the regular courts. For example, recent figures note that the Debt Recovery Tribunals have more than twenty thousand cases pending (Banks concerned 2000). A government report described a backlog of nearly fifty thousand cases on the Central Administrative Tribunal’s docket (Parliament of India 1999 –2000). And in 2000, more than forty thousand cases were pending before the Motor Vehicle Tribunal (Pending accident cases 2000). (Data are scant regarding the time these cases have been pending and the time it takes for a case to be resolved.) Bypasses of the courts are not confined to those operated by government.

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Claimants may seek redress in arbitration. Legislative provision for arbitration in India dates from the Arbitration Act of 1940. Section 30 of the act provides that an award must be enforced by a decree of a court and leaves wide scope for setting aside awards—an opportunity that has been much availed of. The accretion of technical complexities inspired the Supreme Court to observe that the way in which the proceedings under the Act are conducted and without an exception challenged in Courts, has made lawyers laugh and legal philosophers weep. Experience shows and law reports bear ample testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. [An] informal forum chosen by the parties, for expeditious disposal of their disputes, has by the decisions of the Court been clothed with “legalese” of unforeseeable complexity. (Guru Nanak Foundation v. M/s Rattan Singh & Sons, A.I.R. 1981, 2075)

A distinguished Indian lawyer recently suggested that judicial formalism is here responding to ingrained litigant strategies: Indian sentiment has always abhorred the finality attaching to arbitral awards. A substantial volume of Indian case-law bears testimony to the long and arduous struggle to be freed from binding arbitral decisions. Aided and abetted by the legal fraternity, the aim of every party to an arbitration (domestic or foreign) is: “try to win if you can; if you cannot, do your best to see that the other side cannot enforce the award for as long as possible.” (Nariman 1997, 49)

Although tribunals and arbitration enable parties to bypass the lower courts, they often are subject to the same problems that plague the lower courts— crowding, delay, excessive formalism, and expense. There are no systematic data on this point, but it is telling that the chairman of the Law Commission of India noted that delays are a “major defect” in the country’s arbitration system (Arbitration 2001). This suggests that the delays in the courts are in significant part a product of the strategies employed by litigants and lawyers, and thus that real reform cannot focus on the courts but must address all the relevant legal players.

Setting the Stage for Lok Adalats panchayat justice in india The problems detailed above are not new. During colonial times, one observer noted that “references to the ‘litigious Indian people, excessive case filings, numerous undecided suits, courts delays, high costs, and corrupt court officers peppered correspondence and highlighted testimony before the Select Committee of the House of Commons on the Affairs of the East

104 Marc Galanter and Jayanth K. Krishnan Indian Company.’” (cited in Meschievitz 1987, 16). Some British administrators suspected that there was a poor fit between the imposed British legal institutions and Indian notions of justice. In response, the British tried to incorporate panchayats—the indigenous tribunals of pre-British India— into the administration (Galanter 1989b). The plan was not to restore the panchayats as they had persisted over the years but to establish “purposefully designed, cheaper cousins of the formal courts garbed with a consensual gloss” (Meschievitz and Galanter 1982, 23). A movement to restore an indigenous legal system flourished briefly in the years just after independence (Galanter 1989a). The legal system inherited from the British was seen as unsuitable to a reconstructed India, in which faction and conflict bred by colonial oppression would be replaced by harmony and conciliation. Gandhians and socialists within the ruling Congress proposed the displacement of modern courts by restored traditional panchayats—a proposal that met with the nearly unanimous disdain of lawyers and judges and the vitriolic scorn of Dr. B. R. Ambedkar, chair of the Constitution’s Drafting Committee, who sidetracked the push for panchayats into a nonjusticiable directive principle.22 As part of the Panchayati Raj policy of the late 1950s, judicial, or nyaya, panchayats with jurisdiction over specific categories of petty cases were established (Galanter and Baxi 1979). Although the nyaya panchayats derived sentimental and symbolic support from appeal to the virtues of the indigenous system, they were quite different from traditional panchayats (Kushawaha 1977): • They applied statutory law rather than indigenous norms. • They made decisions by majority rule rather than unanimity. • Their membership was chosen by popular election from territorial constituencies rather than from the leading men of a caste. Indeed the focus on the village panchayat represented an attempt to re-create an idealized version of traditional society, one that emphasized harmony and ignored the caste basis of that society and its institutions of justice.23 Like their traditional counterparts, these official nyaya panchayats encountered severe problems establishing their independence from personal ties with the parties, enforcing their decrees, and acting expeditiously (Meschievitz and Galanter 1982). They never attracted significant support from the villagers in whose name they were established. Their caseloads declined steadily, while those of the courts continued to rise. In Uttar Pradesh, civil filings in the nyaya panchayats fell from 82,321 in 1960 to 22,912 in 1970 — just over 4 cases per nyaya panchayat. During the same period, civil filings in the subordinate courts rose from 74,958 to 86,749 (Galanter and Baxi 1979, 78).24 One indicator of their demise is found in the experience of a re-

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searcher in Uttar Pradesh in the 1970s, frustrated by the rarity of nyaya panchayat sessions, whose villager hosts graciously offered to convene one to facilitate her research (see Meschievitz and Galanter, 55, 64 – 67). In little more than a decade, the nyaya panchayats were moribund (Meschievitz and Galanter 1982). It is not clear whether they withered away because they lacked the qualities of the indigenous tribunals or because they displayed them all too well. Most likely, they represented an unappetizing combination of the formality of official law with the political malleability of village tribunals. The nyaya panchayat was “thus a body of men . . . that handles disputes without regard to applicable rules and yet appears to villagers as formal and incomprehensible” (66).25 Nevertheless, the panchayat idea continued to exert a powerful attraction on legal intellectuals.26 The report of the Expert Committee on Legal Aid, chaired by (and consisting of ) Justice Krishna Iyer, speaks glowingly of nyaya panchayats as part of a larger scheme of legal aid and access to the courts and endorses them as a method of incorporating lay participation into the administration of justice (India Ministry of Law 1973).27 But the report makes clear that the justice in mind was legal justice, the law of the land— not that of the villagers or their spiritual advisers. Still, it goes on to commend panchayats for being inexpensive, accessible, expeditious, and suitable to conciliatory proceedings. The panches envisioned by the report are not village notables but superannuated judges and retired advocates. The follow-up report of the Bhagwati Committee, charged with proposing concrete measures to secure access to justice for the poor, endorsed a system of “law and justice at the panchayat level with a conciliatory methodology” (Bhagwati 1976, 33 –34). The report argued that panchayats could eliminate many of the defects of the British administration of justice because they would be staffed by people with knowledge of local customs and habits, attitudes and values, and familiar with the ways of living and thought of the parties before them. Yet, again, the proposed panchayats would not depart from established notions of law. There was to be a presiding judge having knowledge of law, and the lay members were to receive rudimentary legal training. There would be no lawyers, and the tribunal would proceed informally, its decisions subject to review by the district court. What is proposed is an informal, conciliatory, nonadversarial, small claims court with some lay participation. At about the same time, an influential article by Upendra Baxi (1976) described a lok adalat, a people’s court, run by a charismatic social worker in a tribal area of Gujarat.28 This forum was really independent of the official law, both institutionally and normatively, although it bore no evident connection to traditional tribal institutions. As in the Krishna Iyer and Bhagwati

106 Marc Galanter and Jayanth K. Krishnan reports, the imagery of indigenous justice was combined with celebration of conciliation and local responsiveness under the leadership of an educated outsider. These visions of paternalistic indigenous justice, published during the 1975 –1977 Emergency, provided the template for future developments. The end of Emergency Rule and the return to democracy in 1977 brought great ferment in the Indian legal world and hope that institutions and organizations could be contrived to protect the rights of the powerless.29 public-interest litigation and its influence on the lok adalats In the early 1980s, a small number of judges and lawyers, seeking ways to actualize the Constitution’s promises of justice, embarked on a series of unprecedented and electrifying initiatives, among them • • • •

the relaxation of requirements of standing. the appointment of investigative commissions. the appointment of lawyers as representatives of client groups. a so-called epistolary jurisdiction, in which judges took the initiative to respond proactively to grievances brought to their attention by third parties, letters, or newspaper accounts.

Public-interest litigation, or social action litigation, as these initiatives are now called, has sought to use judicial power to protect excluded and powerless groups (like the environmentally susceptible, prisoners, and migrant laborers) and to secure entitlements that were going unredeemed.30 At the same time there were measures by the government and the bar to implement the long-standing commitment to legal aid.31 A body was established, under the aegis of the chief justice of India, to coordinate the implementation of legal aid programs.32 And, most strikingly, there appeared a number of innovative legal service schemes in which social action groups for the first time sought to use law systematically and continuously to promote the interests of various constituencies (see, for example, Epp 1998; Galanter 1989d; and Sheth and Sethi 1991). For example, “middle class” organizations, such as the Consumer Education and Research Centre (CERC), emerged which attempted to address pervasive problems of public safety and consumer protection.33 With support from foreign nongovernmental organizations (NGOs), grassroots groups dedicated to protecting the rights of tribal people flourished, like Action for Welfare and Awakening in Rural Environment (AWARE) in Andhra Pradesh and the legal aid program in Rajpipla in Gujarat.34 These organizations shared the conviction that the law could be used to promote the well-being of various segments of the population. These programs pointed beyond the prevailing “service” notion of legal

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aid as episodic, ad hoc representation in court by generalist lawyers. Instead these new initiatives envisioned “strategic” operations of a scale, scope, and continuity that enabled lawyers to acquire specialized expertise, coordinate efforts on several fronts, select targets, manage the sequence and pace of litigation, monitor developments, and deploy resources to maximize the longterm advantage of a client group (Galanter 1989d; Peiris 1991). The notion was to relieve disadvantaged groups from dependence on extraordinary, spontaneous personal interventions and thus to enable legal work to be calculating and purposive rather than atomistic. Judicially orchestrated public-interest litigation proved a flawed vessel for empowering disadvantaged groups (see, generally, Agrawala 1985). Among its limitations was an inability to resolve disputed questions of fact; weakness in delivering concrete remedies and monitoring performance; reliance on generalist volunteers with no organizational staying power; and dissociation from the organizations and priorities of the disadvantaged (Cunningham 1987; Epp 1998; Galanter 1989d; Kothari 1991). Consider the famous 1982 Asiad workers case.35 Here the Supreme Court upheld the Payment of Minimum Wage Act and further stated that any employer found guilty of not paying workers the minimum wage was in violation of Article 23 of the Constitution.36 But the Court was unable to implement this and similar decrees. Although the Court’s decision in the Asiad workers case was “pronounced in the language of outraged morality,” the judgment had little impact on the petitioners’ cause: it was handed down well after the workers’ project was completed (Mendelsohn 1991, 69). Nor did the decision have a long-term effect on workers generally: in short order the employers “quietly reverted to paying the workers paltry wages, less than the minimum, in total disregard of the Supreme Court ruling.” 37 A similar result occurred in another famous case, this one brought by a lawyer-swami working with bonded laborers in Faridabad quarries near Delhi. The petitioners in Bandhua Morcha v. Union of India (1984) asked the Court to enforce the provisions of the Bonded Labour System (Abolition) Act of 1976, which was a piece of Emergency legislation that statutorily codified the Constitutional prohibition against forced labor. As Oliver Mendelsohn (1991) documents, although the laborers won an important victory in court, realistically little changed for the many impoverished Indians who continued to eke out an existence by working in deplorable conditions as forced laborers. Despite a spectacular success in the form of the Supreme Court judgment, the Faridabad campaign had to be counted a failure. Very few workers had effectively been rehabilitated as bonded labourers; wages had risen only moderately; and health and safety conditions were scarcely different from a decade ago. . . . The reasons for the

108 Marc Galanter and Jayanth K. Krishnan failure are several but at root is a variation of what one always finds in relation to exploitation of the poor in India: the overwhelming power of large employers and the unreliability of the state as an ally of the poor, despite good intentions of elements within the judiciary and bureaucracy. (46) 38

Writing ten years after Mendelsohn and twenty years after the bonded-labor case, Arun Shourie (2001) concludes that the sustained and detailed attention of the Supreme Court in this matter has borne little fruit. He suggests that this is the general fate of the Courts’ public interest interventions. Apart from failures of implementation, judicially supported publicinterest litigation aroused considerable resistance both from those who opposed its program and from those who were discomfited by the recasting of the judicial role.39 However, there were some judges who avidly promoted public-interest law and, as we noted earlier, they too were entranced by the image of informal conciliatory justice brought to the masses by the charismatic or expert outsider. In his 1976 report, Justice Bhagwati, the foremost judicial proponent of public-interest litigation, proposed one-day lok adalats to settle pending cases. As the surge of public-interest law activity leveled off, the reform energies that had fueled its growth found new channels. Where prominent judges had been patrons and instigators of public-interest litigation, their successors have become promoters of lok adalats.40 The dominant themes of reform have become informality, conciliation, and alternative institutions rather than vindication of rights through adversary processes in mainstream adjudicative institutions. The most prominent and widespread expression of the new informalism is the proliferation of judicially sponsored lok adalats.41 As the name (literally, “people’s court”) suggests, its sponsors seek to present lok adalats as indigenous and traditional. The promoters of the official nyaya panchayats in the 1950s were eager to present them as a continuation of the historical panchayat institution. Similarly, the promoters of lok adalats stress their indigenous character and “rich tradition” (Mehta 2000), even though they have little resemblance to earlier institutions.42

Lok Adalats: How They Function Today Cases on the docket of a local court (or tribunal) are, with the consent of one or both of the parties, transferred to a lok adalat list. At an intermittent one-day “camp,” typically on a Sunday, attended by judges and other officials and promoted with considerable hoopla, the cases are called before a mediator or panel of mediators (see Moog 1991, 1997; and Ramaswamy 1997). The mediators are typically retired judges or senior advocates.

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caseloads The first lok adalat was held in 1982. As of March 1996, some 13,061 had been organized nationwide, and some 5,738,000 cases (about 440 per lok adalat) were resolved there (Ramaswamy 1997). Twenty-one months later, the totals had risen to some 17,633 lok adalats and almost 6.9 million cases settled.43 That means that in a twenty-one-month period, 4,572 lok adalats were held—some 218 per month or 2,600 per year—and that approximately 1.148 million cases were resolved (about 251 per lok adalat). Unpublished data from the National Legal Services Authority (NLSA) show that as of the end of 1999, 49,415 lok adalats were held and 9,720,289 cases settled (about 198 per lok adalat). By November 30, 2001, 110,600 lok adalats had settled 13,141,938 cases (about 119 settled per lok adalat).44 Notice that although the caseload has gone up consistently since 1982, the number of cases settled per lok adalat has fallen. Several factors could be at work here: the increasing number of lok adalats, less success in achieving resolution, fewer cases overall, a smaller number of mediators, or more difficult and complex cases. And there appears to be considerable regional variation. In the state of Gujarat, from March 1982 through December 1999, 14,766 lok adalats were held, and close to 90 percent of all cases “dealt with” were settled (Gujarat State Legal Services Authority 2000). By contrast, during the first quarter of 2001, just 651 lok adalats were conducted in Kerala, and only 39 percent of the cases were settled. Clearly there is a good deal of inconsistency here; and a careful examination of caseload patterns is needed before any final conclusions can be drawn. Also unclear are the sorts of cases that come before the lok adalats. Although certain experts tell us that lok adalat cases are “limited to auto accidents and family matters” (Chodosh et al. 1997–1998, 43), the dockets are considerably more varied, including vast numbers of ordinance violations and minor criminal cases. While dockets vary from one place to another, generally they are shaped to capture cases involving the poor. Lok adalats, says one proponent, “specially cater to the needs of weaker sections of society” (P. C. Rao 1997, 27). They are for “poor people,” especially for petty noncontested cases (Diwan 1991). Many proponents of lok adalats see them not as a species of court reform but as a species of legal aid, one particularly suited to the poor, the oppressed, and women. Like judicially inspired public-interest litigation, the goal is to protect the weak; but the movement is centered, not on eminent judges and prominent lawyers, but on district judges, social workers, and local advocates. (Thus it speaks to the problem of how to be a sensitive, caring person in a harsh and cruel society). Lok adalats are not able “to attract cases with heavy financial stakes or important civil litigation. Private litigation [has] remained totally outside the

110 Marc Galanter and Jayanth K. Krishnan ambit of Lok Adalats” (P. C. Rao 1997, 27). The lok adalat device has occasionally been used for mass settlement, resolving two separate takings cases in which residents of two different areas received approximately 1.5 billion and 186.8 million rupees respectively; and, more recently, sugar cane growers and laborers were awarded 12 million rupees in a lok adalat–brokered settlement (Ramaswamy 1997). Although the term lok adalat originally was used to refer to a transitory forum, staffed by volunteers and convened from time to time, rather than a continuing institution with fixed location and personnel, the notion has been stretched to cover permanent Lok Adalats [that] have . . . been introduced in the various Government departments that provide services . . . [including] the telephone companies, the electricity board, the municipal corporations, the city development authorities and the insurance companies. . . . Today [the] Lok Adalat–type mechanism is being invoked by Government Departments and public sector agencies to settle pension and provident fund claims, bank debts, consumer grievances and similar small claims of a civil or revenue nature. (Menon 2000, 56 –57)

Their purpose “is to achieve the resolution of petty disputes between a citizen and such departments before they reach the courts” (Barucha 2000, 18 –19). We have not been able to find any description of the structure or operation of these permanent “in-house” lok adalats, but from the skeletal accounts we are struck by parallels to the internalization of dispute resolution in captive tribunals described by Lauren Edelman and her colleagues (Edelman, Erlanger, and Lande 1993; Edelman and Suchman 1999). While proponents of lok adalats stress their participatory character, it is clear that the form of participation envisaged for poor claimants or defendants is receiving the guidance of their betters. The tribunal is to consist of “judicial officers of the area and . . . educated social workers, law college teachers and retired judicial officers” (Gupteswar 1988, 179). They will give the poor “appropriate guidance” (Morje 1984). This picture seems to be confirmed by the knowledgeable reformers who tell us that in lok adalats, resolutions are fashioned by the evaluative views of the mediators, rather than through negotiations by the litigants (Chodosh et al. 1997–1998). Others have sardonically described adjudication in lok adalats as “banyan tree justice.” 45 fact-finding and compensation awards How does the lok adalat deal with disputed questions of fact? Early on, one proponent boasted, “There will be no necessity of witnesses or examination or cross-examination, to produce legal documents or present case law” (Morje 1984, 68). Other accounts suggest that controversy over facts

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and perhaps over norms rarely intrudes when lok adalats are sitting. Cases may be “already compromised by the persuasion and efforts of judges and advocates alike, for the purpose of being placed before the Lok Adalats” (Barhat 1987, 6). There may be a “pre–Lok Adalat conference in which parties are approached by the legal aid team and discussions about the pros and cons of the case take place” (Diwan 1991, 87). Generally, the largest cases in lok adalats are claims by accident victims under the Motor Vehicle Act. This is the only type of case counted separately, and statistics are compiled of the compensation awarded in these cases. Thus the Ministry of Law stated at the end of 1997 that some 349,710 motor vehicle accident claims had been resolved by lok adalats, and some Rs. 1,160 crores awarded (this is an average award of 33,190 rupees).46 Our data from the National Legal Services Authority show that by the end of November 2001, 825,255 of these cases had settled at an average award of 39,432 rupees. Lok adalats, then, resolved more than 10,000 motor vehicle accident cases a month from January 1998 through November 2001—and at higher amounts. Gene Kassebaum’s study (1989, table 1) of Karnataka from 1986 to late 1988 shows that about 62 percent of the lok adalat cases were motor accident claims.47 Because the claimants in motor accident claims are typically passengers or pedestrians on the one hand and the defendants are typically companies or government agencies on the other, these cases, Kassebaum noted, “tend to be contests between the relatively rich and the relatively poor, the powerful and the weak” (7). The sessions Kassebaum observed were organized so that all the cases involving claims against a particular insurer or transport company were placed before the same panel, a considerable convenience to the defendants. The parties in the Karnataka lok adalats were represented by advocates—although advocates were excluded in the Uttar Pradesh lok adalats Moog (1997) described. Fifty-four percent of cases were settled after brief, often perfunctory negotiations that focused on the amount of damages (Kassebaum 1989). The amounts awarded in lok adalats are arguably quite small. In the 13,553 cases resolved in Karnataka from 1986 to 1988 (of which 8,537 were motor accident cases), the average settlement was 14,758 rupees (Kassebaum, 1989, 35). This is only a small fraction of the arguably inadequate average damages awarded to claimants who persevere to fight their cases through the courts. A sample analysis some years back of the recoveries in motor accident cases reported in the most comprehensive and widely circulated set of Indian law reports, the All-India Reporter, shows that at least for 1986, the average recovery in the thirty-one cases for which data were obtainable was 48,376 rupees.48 Of course the cases that were fought all the way to a high court could

Before British rule

Communal notables

Custom of caste or locality

Fines, excommunication

Politics of reconsideration

Flourished

Personnel

Norms applied

Sanctions imposed

Accountability and review Representation

Self, factional spokesperson

Traditional panchayats

Characteristic

Appeal within judicial hierarchy Lawyers

Money damages, injunctive relief

Lex loci (state law)

Since early 19th century Bureaucratically selected career judges

District courts/ subordinate courts

Enforcement by court Lawyers

Money awards (enforced by the court)

Reflection of state law

Selected by the parties

1940 –

Arbitration

Forum

Appeal to the courts Self

Fines

Statute law

Elected by local electorate

1950 –1975

Nyaya panchayats

ta b l e 3 . 2 Salient Features of Forums for Everyday Justice in India

Lawyers

Appointed judges (legal practitioners) State law with innovation Money damages, injunctive relief No appeal

1977–

High courts/ Supreme Court public-interest litigation

Self, lawyers

No appeal

Enforced by the court

Unknown

Retired judges, volunteers

1982 –

Lok adalats

Debased Informalism 113

be expected to involve more severe injuries on average than those brought before a lok adalat. Forums similar to lok adalats are conducted by voluntary groups as well as by the courts. For example, the principal activity of the People’s Council for Social Justice (PCSJ) in Kerala is conducting neeti melas (“festivals of justice”). Staffed largely by retired judges and court personnel, PCSJ urges people to avoid the courts and avail themselves of its services instead.49 The group does not promise a departure from official norms: instead it proposes to give disputants access to a purer, conciliatory, nonadversarial forum for the application of those norms. In fifteen years the PCSJ has conducted 227 neeti melas and has settled more than 8,000 motor vehicle accident cases.

Assessing the Performance of Lok Adalats The motor vehicle accident cases that figure so prominently in the caseloads of the lok adalats, government and voluntary, generally have not been diverted from the civil courts. Most come from the Motor Accident Claims Tribunals, a sector of the court system designed to speed hearings, reduce costs, and award compensation in accident cases without a showing of fault (Whitson 1992). This accentuates the point that lok adalats do not provide additional access to justice: they do not provide new facilities for the vast portion of potential claims that are discouraged—by court fees, the cost of lawyers, the prospects of delay, and paltry recoveries—from using the courts at all. More systematic data is needed before any firm conclusions can be drawn, but from the information presently available to us, it appears that lok adalats provide a truncated process for some of those few who do attempt to utilize the courts. The Legal Services Authorities Act of 1987 (amended in 1994 and 2002) visualizes a network of lok adalats with jurisdiction over “any matter,” made up of judicial officers and other qualified members, authorized to follow its own procedures (which need not be uniform) and to be “guided by the principles of justice, equity, fair play and other legal principles.” 50 There is no law governing awards; instead lok adalats are instructed to “arrive at a compromise or settlement.” The 1994 and 2002 amendments mandate that the compromise “shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.” 51 Lok adalats differ sharply from the earlier nyaya panchayats. The jurisdiction of lok adalats is not confined to specified categories of minor matters, but can extend to “any matter.” Instead of the popularly responsive panches, lok adalat officials are nominees of the state administration. Where the panches could issue decisions, the lok adalat panelists can only “determine and arrive at a compromise or settlement.” Table 3.2 summarizes some of the

114 Marc Galanter and Jayanth K. Krishnan differences between lok adalats and various past and present forums for providing access to justice for everyday troubles and injuries. This campaign to institutionalize lok adalats comes in spite of (and perhaps because of ) the fact that little is known about their performance. One serious issue that immediately comes to mind is whether the mechanism’s “informalism” disadvantages weaker parties. The few available accounts raise a host of serious questions. For example, how genuine is the “consent” by which the parties consign their cases to lok adalats. Moog (1997) portrays pressures on officials to produce large numbers of cases for lok adalats, leading in some instances to the institution of criminal cases for the purpose of having them resolved there. He also notes that cases that have in effect been resolved in the courts are assigned to lok adalats to inflate the total of resolutions there. Clearly, there are career incentives for officials to produce the cases and settlements their superiors want to see. Beyond this, there are questions about the quality of the process: • • • • • • • •

Are the issues salient to the parties ventilated? Are the merits of the cases presented effectively? Can the forum probe and resolve conflicting assertions of fact? Do the resolutions embody legal standards? What is the procedure for enforcing decisions? How often are decisions enforced? How do the outcomes compare with the parties’ legal entitlements? Are outcomes reasonably consistent with one another?

Apart from these questions about the resolution of specific cases, there are questions about the general effects of the diversion of these claims to lok adalats: 52 • Does diversion diminish the deterrent effect of awarding damages? • Does diversion diminish the supply of precedents and impede the development of tort doctrine and expertise that are responsive to India’s industrializing economy? • If diversion relieves the courts to do other things, what other things are they doing? • Does diversion encourage or discourage preventive measures by frequent injurers (for example, bus companies) and their insurers? Neither those who operate lok adalats nor those who promote them have displayed much interest in systematically assessing the quality of their performance. But that assessment is essential to ascertain whether the results justify expenditures and commend this alternative over others.53 Assessment involves comparing the performance of the lok adalats with the aspirations their supporters have for them. What is remarkable is how modest these are.

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Proponents of lok adalats, like earlier reformers, claim to draw on the legacy of the panchayats. But as Table 3.2 shows, lok adalats are distinct from traditional panchayats in virtually every respect: they operate in the shadow of the official courts; they are staffed by official appointees rather than community leaders; they apply some diluted version of state law to decision making rather than local or caste custom; and they arrange compromises instead of imposing fines and penances backed up by the sanction of excommunication. Nor can lok adalats be viewed as descendants of the nyaya panchayats. The proponents of nyaya panchayats wanted to create a convenient, accessible, simplified forum that would encourage popular participation, express popular norms, and promote harmonious interaction. They were unable to deliver on this, but the aim was to provide a system of justice superior to that of India’s British-style courts. In contrast, the virtues claimed for lok adalats are their expeditiousness and lower processing cost (Sidhva 1986). What commends them is not that they deliver a superior form of justice, but that they represent deliverance from the agony of litigation in a system conceded to be terrible. The lok adalats’ achievement, then, is to provide an official process for claimants to secure a portion of their entitlements without the aggravation, extortionate expense, inordinate delay, and tormenting uncertainty of the court process (Gupteswar 1988). To secure this, they yield up discounts. Assume, for example, a motor accident claimant would secure 50,000 rupees compensation (and accumulated interest from the date of filing) after an expensive ten-year struggle in the courts. Imagine that this same claimant might be able to get half that amount at a lok adalat in just a few months.54 This is clearly a preferable outcome for the claimant, given the legal costs avoided and given the appropriate discount for the futurity and uncertainty of the court recovery. Thus the establishment of the lok adalat can be thought of as providing a significant benefit for a claimant in this situation. But, of course, this claimant is entitled not to the discounted future value of the claim, but to the full present value. What makes the delivery of the discounted amount a “benefit” is simply that the full entitlement can be vindicated only by recourse to a disastrously flawed judicial system that at best can deliver it in ten years. Thus the benefit conferred by the availability of the lok adalat is a benefit only by virtue of the enormous transaction costs imposed by the judicial system.55 And these transaction costs impact differentially on different kinds of parties. Those who are risk averse and unable to finance protracted litigation are the ones who have to give the discounts to escape these costs; those who occupy the strategic heights in the litigation battle are able to command steep discounts (see Epp 1998; Galanter 1974; and, generally, Ross 1970). Because the sums awarded by the courts fall far short of fully compensating the injured, the injured are triply undercom-

116 Marc Galanter and Jayanth K. Krishnan pensated: first, by the inadequate level of compensation delivered by the courts; second, by the high transaction costs; and, finally, by the discounts they must yield to avoid the infliction of these costs. And, as the injured are undercompensated, injurers are underassessed for the costs they impose on society for their risk-creating behavior and underdeterred from persisting in injurious conduct.56 Lok adalats are the product of a process that makes use of scarce reform energies to create alternatives that are better than the courts; but, as we have seen, it is not necessary to be very good to be better than the ordinary judicial system in India. Ideally the flaws in the system would act as a stimulus for reform; in reality, they simply have led to the creation of institutions to bypass the courts. Reformers take pride in delivering needed compensation more expeditiously to victims. But the elements of the system that make discounted compensation appear to be a benefit go unexamined. Lok adalats, then, are an instance of debased informalism— debased because they are commended not by the virtues of the alternative process but by the need to escape the formal institutional process.

Informalism in the Regular Courts the bhopal case Lok adalats are only the most visible manifestation of this debased informalism, premised on the irredeemable nature of the formal legal process. But informalism has also emerged in the judicial setting. A most dramatic and striking example of this mindset in the regular courts was the February 1989 settlement of the Bhopal chemical disaster case. A main issue in this case involved determining the liability of Union Carbide Corporation, the party responsible for causing a 1984 chemical leak in the city of Bhopal that resulted in thousands of deaths and injuries. The government, the Supreme Court bench, and many observers argued that the settlement was justified because it spared the victims further litigation that would have lasted “anywhere from 15 to 25 more years.” 57 They did not claim that the settlement was fair, that it represented the victims’ true entitlements. Instead they asserted that whatever the magnitude of those entitlements, the unalterable character of the judicial system—in particular, lengthy delays—precluded the victims’ recovering full compensation, and that the discounted present value of the claims actually was less than the settlement amount.58 The elements of the system that ensured protracted delay were treated as given and unchangeable (Hosein 1993). This inevitability argument was propounded forcefully two years later by

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Chief Justice Ranganath Misra in his concurring judgment, dismissing the various objections to the settlement: If the litigation was to go on merits in the Bhopal Court it would have perhaps taken at least 8 to 10 years; an appeal to the High Court and a further appeal to this Court would have taken in all around another spell of 10 years with steps for expedition taken. We can, therefore, fairly assume that litigation in India would have taken around 20 years to reach finality. From 1986, the year when the suit was instituted, that would have taken us to the beginning of the next century and then steps would have been made for its execution in the United States. . . . That litigation in the minimum would have taken some 3 –10 years to be finalised. Thus, relief would have been available to the victims at the earliest around 2010. In the event the U.S. Courts would have been of the view that strict liability was foreign to the American jurisprudence and contrary to U.S. public policy, the decree would not have been executed in the United States and apart from the Indian assets of [Union Carbide], there would have been no scope for satisfaction of the decree. [Union Carbide Corp. v. Union of India, 4 SC 584 (1991), 18 –19]

In arranging the settlement, the Supreme Court had acted “in a pragmatic way to protect the victims” (21). The Bhopal situation replayed on a vast stage the decay of public-interest law. Originally, the government anticipated institutional innovation to secure the interests of the victims; imaginative (if not optimal) innovations were urged by a few creative judges and lawyers (Covell 1991).59 But changes along these lines proved too difficult or too costly in light of other commitments. Alternative ideas for reform of legal institutions were absent, and in the end the intractability of these unreformed and unreformable institutions was invoked to establish the adequacy of what might be thought a meager result. (That the Government presides over the very system whose intractable shortcomings it invokes to justify its “realism” and “pragmatism” adds a certain mordant irony to the exercise. See Galanter 1985.) Both lok adalats and the Bhopal settlement are instances of what Resnick (1986) called “failing faith”—that is, a loss of faith in the efficacy and legitimacy of the formal legal process absent any vision of reform (see, generally, Chandra 1997). Instead what is offered is a program of palliation, almost the antithesis of the vitality underlying public-interest law. Proponents of public-interest litigation believe that litigation should be strategic, its goal to empower constituencies of the disadvantaged (Sheth and Sethi 1991). In contrast, the new informalism of lok adalats addresses isolated individual victims or claimants. Where public-interest litigation sought to marshal facts through extensive investigation and to develop the law through pioneering cases (Cassels 1993; Cunningham 1987), new informalism seeks compromises that obviate both factual and legal definitions. Where public-interest

118 Marc Galanter and Jayanth K. Krishnan litigation encouraged the development of new specialized expertise and wide dissemination of new knowledge, new informalism demands no expertise and generates no new knowledge. Where public-interest litigation sought to use the wider, radiating effects of legal action to bring about largescale movement toward constitutional ideals, new informalism eliminates consideration of these general effects and confines its concern to specific cases (Chodosh et al. 1997–1998; Whitson 1992).60 What remains constant is paternalism, the sense that beneficent, educated outsiders can intervene to make the world better for the suffering masses, who have no capacity to exercise judgment for themselves. But in the new informalism, paternalism is combined with defeatism, the sense that the benefactors cannot change the system, that they can only ameliorate its effects. informalism and the judicial system The highly visible embrace of informal negotiation in the Bhopal case and in lok adalats is echoed at other locations in the judicial system. Until recently, Indian judges were reluctant to actively engage in promoting compromises. Moog (1997) suggests that judicial participation in settlements is discouraged by reward structures in the district courts that give no quota points for compromises. Chodosh et al. (1997–1998) think they are infrequent because judges fear being accused of partiality. But at least in some settings, settlement promotion has obvious attractions for judges: they can take credit for resolving the dispute; they avoid having to take evidence and write a judgment; they receive credit for reducing backlog; and they cannot be overturned on appeal. There are hints that earlier practices are changing and that judges are making more efforts to get parties to compromise. A senior lawyer recently noted that judges are interested in getting cases in and out of the courts quickly and that litigants have come to accept compromise.61 Such a shift would be an extremely important development and deserves systematic examination. It has import for the judicial system, for the role of judge, and for the justice that is delivered to the public (see Galanter and Cahill 1994). At first glance, this seems a welcome development, especially in light of the tendency of Indian litigation to rely heavily on delay and procedural maneuvers that postpone indefinitely consideration of the merits (Chodosh et al. 1997–1998). It may seem Scrooge-like to question the goodness of terminating costly and aggravating litigation. But again we come to a set of questions about quality, similar to those raised earlier in connection with lok adalats. These questions are extremely complex, so we provide only a very summary indication of some of the factors involved. Among the questions raised by active judicial promotion of compromise there are first questions about outcomes in particular cases. For example:

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• Do they embody legal standards? • Are they based on a full appreciation of the relevant facts? (In this connection it should be noted that judicial promotion of compromise in India does not follow an extensive discovery process that has exposed the relevant facts. Instead, it may be a substitute for fact-finding). • Do they take into account norms that are not legally prescribed for authoritative decision making by the court? • Is the influence of nonlegal factors like the skill of attorneys, a party’s inability to bear costs, and the like increased or reduced? • Are the disputants more inclined to restore or continue relations? • Are judicially arranged compromises more likely to elicit compliance rather than to be dishonored or challenged? • Is the outcome perceived as fairer by the parties? Then there are questions about wider, systemic effects on the judicial process: • Is there more or less variability in the treatment of similar cases? • In which kinds of cases are compromises being used successfully? • What effect do judge-sanctioned compromises have on the stock of legal precedents? As the terms or methods of compromises become known, do they serve as precedents in other cases? • How does this activity affect the working style of lawyers or judges? • How does it affect public perceptions of justice? The genuine appeal of the new informalism should not be underestimated. It dispenses with public-interest litigation’s reliance on the bountiful intervention of high-status actors and its emphasis on symbolic results. In contrast, the new informalism concerns itself with institutional routines and relies on dedicated actors who are content to remain obscure (P. C. Rao 1997). It counts its accomplishments in the delivery of rupees and paise to specific poor individuals. Its modest but (apparently) concrete accomplishments combine with institutional relief for the courts—and of course there is opportunity for celebrating the wisdom and accomplishments of its patrons and promoters. But it is important that we not give the new informalism a free pass. One of its striking features is that it is so un-self-regarding. Its effects are taken as self-evident and salutary. No thought is spared for documentation, assessment, or more than the most rudimentary record keeping (see Chodosh et al. 1997–1998). Yet, as we have seen, such devices as lok adalats and judicial promotion of settlements raise serious questions of evaluation. Research that described the operation of these devices would permit realistic assessment of the claims and would enable them to be modified to maximize

120 Marc Galanter and Jayanth K. Krishnan achievement of their goals.62 The development of new knowledge about these devices requires attention from those supporting and promoting informalism and those critically evaluating it. One promising way to address this issue would be to create a forum for regular documentation of informalist activity. Suppose, for example, a lok adalat yearbook was established, with appropriate insider endorsement, to collect basic descriptive material, both about policy and operation; to commission and conduct surveys, and to provide a forum for debate about practices, policies, and results. Such a yearbook could help fill the factual vacuum that surrounds most discussion of lok adalats (as it did of nyaya panchayats). It could promote standardized record keeping; it could create data sets that would facilitate comparison among programs and would permit observations of changes over time. Because there is little comparable knowledge about other legal institutions (for example, the district courts), the contents of such a yearbook should not be narrowly confined. For only by including materials on these companion institutions can there be realistic assessment of the effects of lok adalats. Furthermore, it is important to identify the “strategic” possibilities of informalism. Are there ways that lok adalats could be used to create leverage for change instead of substituting for it? Could the mediators in a district meet together to share information and adopt policies designed to enhance awards or promote vehicle safety? We should not dismiss out of hand the possibility that imaginative actors could find ways of extracting some strategic leverage from these devices. additional difficulties with informalism Informational deficiencies aside, the informalist impulse displays two major problems. The first is the romantic illusion that effective informal justice is an alternative to a strong, proficient formal system rather than a byproduct of such a system and could be enjoyed without the cost of repairing the formal system. But informal systems work because the parties can avail themselves of the remedies and protections afforded by the formal system. Those remedies cannot be found in an informalism detached from a flourishing system of efficacious courts. The road to useful informalism is through vigorous reform of formal legal institutions, not through resigned surrender to the inalterability of their defects. Informalism is not another bypass— one that can deliver something better than courts; it can only deliver a diluted version of what courts can deliver. The only way to give better remedies by informal settlements in the shadow of the law is to give better remedies in the courts.63 The second problem goes back to the widespread perception that India has too much law (lawyers, litigation) instead of too little. Informalism does

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nothing to make remedies accessible to ordinary citizens. Reformers embrace informalism as part of a battery of reforms that they believe will significantly reduce the number of cases pending in the courts. In their present condition, filing rates are low, but those claims that are filed linger in the courts for very long periods. Thus it is understandable that the quantity of pending cases is often taken as a measure of the work of the courts. If reforms make the courts more proficient, the number of pending cases may go down. But if the courts are more effective, public confidence in them will rise, and they will become more attractive to potential users. Replacement of a narrow, rutted, and congested road by a smooth, wide highway over which one can travel more reliably, cheaply, and quickly is likely to encourage more people to make journeys and more goods to be shipped. Similarly, modification of the courts to make them faster, more efficacious, and less costly is likely to encourage far higher rates of court use than India has now. If Malaysia or even South Korea is a possible guide, it would not be out of the question for filing rates to multiply five or ten times over. This would not be a bad thing. To enlarge the supply of justice in everyday life requires access to effective institutions; it also requires an adequate supply of substantive rights to enforce. Perhaps the single greatest opportunity to enlarge the scope of rights for ordinary people would be the development of tort law, a field that legislative neglect has left to the judiciary for incremental common law development.64 India’s tort system has been described as lacking both accountability and remedies: most incidents of injury and victimization tend to go unnoticed (Galanter 1985, 1990). When cases do enter the courts, “delays of Bleak House proportions are routine” (Galanter 1990, 154). There are a relatively small number of courts in which to proceed with such claims; and where litigation is brought, gaining money damages is rarely guaranteed. Furthermore, costs for litigating can be high, lawyers are often unfamiliar with the technical knowledge and investigative techniques necessary for conducting effective tort claims, and procedures for facilitating discovery and complex litigation are absent (Galanter 1990).65 The rationale of tort law is that in addition to dramatizing public standards of care, it secures compensation that makes an injured party whole, shifting the cost of injuries to injurers and inducing potential injurers to invest in preventive efforts that reduce the incidence of future injury (Holmes 1881).66 Experience elsewhere has shown that tort is a rather spotty and uneven way of providing compensation for injuries and that the preventive effects it generates are often less than optimal (Schwartz 1994). But in a setting of no remedies for negligent injury and no pressure for prevention from the law, the net incremental benefits of a vivified tort law would be substantial.

122 Marc Galanter and Jayanth K. Krishnan It is easy to imagine schemes of social insurance and administrative regulation that might perform these functions in a superior fashion. But choices among institutions turn not only on images of their optimal performance, but also on the probability of their being enacted and sustaining themselves. Is there any likelihood that other institutions could produce more ample compensation or more efficacious prevention? It seems evident that neither comprehensive social insurance against negligent injury nor effective government regulation of risks is at all likely in the near future. The choice is not between these and tort law; it is between tort law and the present noremedy, no-accountability system for dealing with personal injuries in India (see Komesar 1994). In addition to being viable because it is already there in theory, tort law has a further advantage: it does not depend on continuing inputs from government or external actors, but would generate strong incentives among lawyers and parties for its continuing use and development. And it can operate without the extensive ex ante investment that it takes to put into place safety regulations or administrative controls and the continuing investment in updating and enforcing them (Getsfield 2001). The major function of government would be to resist pressures from discomfited parties to dismantle or cripple the system. The need for the state and the legal system to adapt to international capital flows and new productive technologies is widely understood.67 But the changes incident to modernization of the economy also affect workers, consumers, and neighbors (see Stalker 2000). Machinery, transport, and chemicals bring unprecedented benefits, but they also bring injuries and risks of greater magnitude, typically caused by remote entities over whom there is no control through the ordinary reciprocities of life. The development of the kinds of remedy and accountability that may be afforded by tort law is particularly needed in an industrializing society in which neither social insurance nor effective administrative regulation is present. Another and closely related area for reform is the organization of the legal profession. Slowly but surely, lawyers who supply services for the business sector are beginning to organize themselves in firms—a development encouraged by the rapid upgrading of communication technologies (Debroy 1998). With the greater infrastructure provided by these firms and the superior capacity for specialization, coordination, and continuity, lawyers will be able to provide higher-quality legal services to their business clients. These technical innovations in lawyering accentuate existing disparities in legal services between elites and the disadvantaged and unorganized (Kohling 2000). For the latter to enjoy legal services of comparable proficiency would require a massive reorganization of the way that legal services are supplied and delivered.

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It is difficult to visualize what shape such reformed legal practice might take. There may well be lessons learned from earlier initiatives in legal services delivery. We mentioned AWARE and CERC as successful models of the use of the legal system to serve oppressed groups and unrepresented interests. These institutions serve very different constituencies, they cultivate different kinds of expertise, and they have very different ways of using the law. But they share an ability to innovate, a drive to go beyond volunteerism and spontaneity to institutionalize new ways of using the law, and the capacity to absorb new increments of resources. Such programs should be helped to develop and to serve as models (and training grounds) for other programs. Information about innovative uses of the law should be generated and disseminated. Support should be extended to new groups that exemplify fresh approaches and explore new possibilities, increasing the capital stock of ideas and experience and keeping alive the sense that things could be otherwise. Although it is important to support the efforts of the law’s nonprofit or voluntary sector, it seems too much to ask that the needs of the poor and disadvantaged be supplied by altruistic lawyers. The amount of altruism that might be mobilized is limited by a number of factors. Most lawyers’ skills and routines may not be readily transferable to the demands of innovative lawyering on behalf of the deprived, who need not only courtroom advocacy, but investigation, organization, and monitoring of implementation (Epp 1998; Galanter 1989d). Also, work for the public interest is to some extent a positional good—when it loses its rarity and its visibility, it may provide less psychic reward.68 Given the magnitude of the undertaking, it is necessary to think of ways that the commercial private bar could make a living from effective representation of the poor and oppressed. The task of policy is to enable lawyers to do good while doing well. This would require not only provision of appropriate support services but modification of the ways that lawyers are retained and paid and engage in entrepreneurial activity to provide representation. Restructuring the way that law practice for the poor is organized and conducted is of vital importance. Reforms of the higher courts and special forums for business disputes are in the cards. In the coming decades, India will have to decide whether it will maintain a dual legal system in which, on the one hand, government and corporate elites have access to proficient courts, while most Indians remain trapped in an undercapitalized, gridlocked system. The new informalism represents an intensification of stratification into a two-tier system of civil justice. As the lower courts diminish in function, the higher judiciary’s functions are enlarged. As the cases of “little people” are removed from the regular courts, the higher courts will not deal with the problems of ordinary Indians on a regular and routine basis, but only in intermittent paternalistic

124 Marc Galanter and Jayanth K. Krishnan “public interest” sorties, leaving those courts to take up cases from government and from the business sector. Changes in the organization of law practice will amplify such a bifurcation of remedies unless there is investment in innovative reorganization of nonelite law practice and in building a strong and effective system of lower courts in which ordinary Indians can find expeditious remedies for everyday harms.

Conclusion: What Is to Be Done? Within the Indian legal world, the tide is running strongly toward a debased informalism that reflects a resigned pessimism about the liberative possibilities of the law and the abandonment of any aspiration to strategic action on behalf of the disadvantaged. With the embrace of lok adalats, the Indian state seems to have abandoned the attempt to supply remedies and protections through accessible and effective lower courts. For important cases and important people, there are the higher courts with the full panoply of legal process, while others can make do with lok adalats. But not everyone acquiesces in writing off courts as an important service. In various parts of the country, political groups have established rival courts that challenge both the legitimacy and efficacy of the official courts. In the state of Bihar, for example, the Maoist Communist Centre (MCC), a group of militant revolutionaries, has established its own courts ( jan adalats) in several rural sectors of the state (A. Gupta 2001).69 The jan adalats deal with both civil and criminal matters, and, as one report notes, overall “the extremist outfits run a parallel government” within the state (Yadav 1997).70 The courts function often in a brutal manner, lacking any sort of due process and levying punishments ranging from hefty fines to public floggings to the severing of limbs to beheadings. Yet recent accounts indicate that “these courts are gaining in popularity among the villagers. . . . [In fact in Bihar] the number of cases in the [official, government] district courts have dropped from about 2,400 a year to just 1,600” (A. Gupta 2001), presumably because local citizens are turning away from state courts—which “entail huge amounts of money and time”—in favor of these jan adalats that are hearing both criminal and civil matters.71 In Andhra Pradesh, another revolutionary group, known as the Naxalites, also has set up its own “people’s courts” ( J. Singh 2000).72 The Naxalites originated in the state of West Bengal (in a village known as Naxalbari) in 1967, and since then have formed many splinter groups throughout the country.73 A 2000 report from the Federation of American Scientists, a private, U.S.-based think tank that monitors issues of national security and public policy, noted that summary justice is a key characteristic of the Naxa-

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lite courts in Andhra. Naxalite courts also lack due process; and, as part of their functioning, those found to be police informants or enemies of the movement are summarily executed. Operation of courts is not confined to revolutionary groups. It is also found in groups that are part of the political establishment. In Maharashtra, the ruling party, the Shiv Sena, runs its own courts out of various local party offices (shakhas) (Eckert 2001). These courts handle mostly civil law matters; and the judges who decide disputes, local leaders within the shakhas known as shakhas pramuks, are untrained in the law. They are not paid for their services. The police frequently work in tandem with the judges. Judgments are delivered orally, and usually no written record is kept.74 Litigants typically are not represented; and most decisions are rendered in a single sitting. There are no provisions for appeal, and shakha strongmen leave the parties with little choice but to follow the “court’s” orders. Notwithstanding such seemingly undemocratic features, the Shiv Sena court system seems now to be part and parcel of the legal culture in Maharashtra. In many parts of India, local strongmen (dadas) sit as settlers of disputes among their clients and sometimes arbitrate disputes among rich people. In some places, senior police officers may be arbiters of disputes. The vernacular press often refers (pejoratively) to episodes of this phenomenon as panchayats. Presumably such practices are not entirely new, but there is some indication that over the past decades they have become more frequent.75 In some areas, particularly among lower castes, caste panchayats retain coercive powers of adjudication and punishment, especially in family matters (Dhagamwar 2001). Although the gram panchayats promoted as institutions of local self-government have no judicial authority, at least occasionally they arrogate such judicial power to themselves. It was reported from the northern state of Haryana that The long arms of law are yet to reach Omi Devi of Karah Saheb, but the gram panchayat did not lose any time in taking action against her for the dowry death of her daughter-in-law, Rani. Unable to bear torture she had been subjected to for the past six months in an attempt to force her to bring more dowry, Rani committed suicide by taking poison on 3 July. The gram panchayat met on the same day and unanimously exiled her mother-in-law Omi Devi from the village for a period of six months. [Rani’s] husband, Devi Lal, was also barred from remarrying for one year. Omi’s family was directed to give a two-acre piece of land to Rani’s eight-monthold son and to make a fixed deposit of Rs. 50,000 in the name of her three-year-old daughter. (Panchayat Raj 2001a)

Although earlier efforts to promote locality-based panchayats with judicial authority were unsuccessful, some states seem willing to try again. In 2001 the state of Madhya Pradesh inaugurated the first of what is expected to be

126 Marc Galanter and Jayanth K. Krishnan a system of seven-member village courts to be known as gram nyayalayas (Panchayat Raj 2001b). The jurisdiction of these village courts is somewhat unclear, although one observer notes that the Civil Code of Procedure will not be applicable.76 What binds together this collection of rivals to the court system is not only their departures from due process, but their success in attracting users. Surely some participants come to these rival courts under duress; but the costly, slow, and frustrating character of the official judicial process makes it understandable that many voluntarily choose these rivals and acquiesce in their decisions. There is a market for courts that give prompt and enforceable judgments. Where the state fails to provide such courts, others who appreciate their potential for mobilizing political support and generating legitimacy will try to fill the vacuum. We submit that faux-traditional lok adalats will not be a robust contender in this competition. The discounting of everyday civil justice in the state courts, the official pessimism about reform, the “load shedding” into lok adalats, and the flourishing of alternative forums reflect a “hollowing out” of the Indian state.77 By this we refer to a process by which there is a transfer of certain public policy functions to other institutions, resulting in a reduction of “government leverage over [those particular] public policy” areas.78 In India the penetration of government-espoused norms into effective local practice is often partial or merely symbolic. Arun Shourie (2001), commenting on the inability of the Supreme Court to effectuate its public-interest decision about the quarry workers, observes that The lesson is that reality is recalcitrant to the extreme, it is obstinate as can be: the countryside as well as aspects of urban life are in the grip of the counterparts of the mine owners. In many ways they are the real government of India. Institutions of State—the Labour Commissioners and the like—are in a sense actors in a shadow play. They just go through the motions. Just imagine how much more the courts will have to do, even the Highest Court will have to do, to actually register some difference on the problems that they take up. (52 –53)

The conjunction of citizen avoidance of the courts, defeatist resignation, and load shedding by the courts (in the guise of faux-traditional tribunals) and the emergence of rival forums dilute the efficacy of the state as adjudicator and enforcer of norms in everyday life. Although romanticized as a way of providing efficiency and access to justice to the poor, lok adalats sadly hold little promise for delivering effective legal services to those most in need. Indian law is facing a momentous set of institutional changes. Just as Dr. B. R. Ambedkar struggled to ensure that the oppressed were not excluded from the benefits of the new democracy, the Ambedkars of our day must in-

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vent ways of applying new insights and technologies to the problems of providing access to justice to India’s citizens, long inured to its absence.

Notes We are indebted to Erik Jensen, Julia Eckert, and Richard Messick for sharing their observations with us and to David Gower for helping to prepare Table 3.1. We also are grateful to the officials at the National Legal Services Authority and the Lok Adalat Cell at the Patiala Court House for providing us with access to data on lok adalats. 1. For a variety of essays on this topic, see Verma and Kusum (2000) and Kirpal et al. (2000). 2. The Constitution of India, in Articles 32 and 226, empowers the Supreme Court and the other high courts to issue writs in cases where Fundamental Rights are violated. 3. References to many expressions of this view among British administrators can be found in Galanter (1989a). For a contemporary example, see M. J. Rao (1997), who notes that “like the Americans and others, we [Indians] too are a litigious society” (103). 4. These data were taken from the Population Reference Bureau’s Web site (www.prb.org/Content/NavigationMenu/Other_reports/2000-2002/sheet2.html). We were told on August 2, 2001, in an e-mail from the Census of India, that 50,508,485 of the 78,921,135 people in Maharashtra (64 percent) were over age fifteen. Therefore the proportion of the population under age fifteen is 36 percent. 5. Good examples of the variations among legal systems come from Courts, Law, and Politics in Comparative Perspective ( Jacob et al. 1996). There, for example, Kritzer discusses how “unlike the United States, France, Germany, and Japan, nonlawyers play a prominent role in the criminal justice system in England, at least at the lower levels” (84); Provine notes that France differs from many other democracies in that “the role of courts in protecting individual rights is debatable in France, and their power to review legislation or executive orders for constitutional defects is highly suspect” (177); and Sanders, in a discussion of environmental and automobile accident cases, writes that Japan eschews “Western procedures . . . [in favor of ] a set of institutional arrangements and procedures that offer few incentives to litigate” (357). 6. Wollschläger admitted that “given the practical impossibility [of collecting comprehensive data], a selection must suffice. This can be representative in a loose sense only. Litigation rates are calculated here on the basis of annual filing in courts of first instance per 1000 total population” (580). 7. We would expect the rate in Maharashtra to be higher than that in India as a whole. It also may be that the ADB study was counting something other than what Wollschläger was counting; if so, the text does not explain the differences. 8. Huang (1996) estimated the rate of civil filings in China in 1989 at 1,630 cases per 1 million inhabitants.

128 Marc Galanter and Jayanth K. Krishnan 9. See page 219. But, perplexingly, at page 246 is another comparison of 1960 and 1995 that depicts a rise in the rate of civil litigation over the period, from the equivalent of 0.5 case per 1,000 inhabitants to 1.2. Again, it may be that something different is being counted, but the text does not make clear a distinction. 10. Even sophisticated observers speak of an “explosion of litigation” in India. See Chodosh et al. (1997–1998). 11. According to Chodosh et al. (1997–1998) court procedures should be the highest priority for reform. Also see Rajiv Gandhi Institute for Contemporary Studies (1999). 12. Chodosh et al. (1997–1998) note that “judges play little or no role in moving cases toward resolution fairly and expeditiously.” They go on to say that “judicial reluctance to exercise managerial authority may be related to a variety of structural and institutional factors” (39 –40). Moog (1997), commenting on the impotence of Indian judges, writes that they are known for “sitting in their courtrooms doing nothing an hour after court . . . [is] in session, still waiting for the first case to be heard. Often, and for a number of reasons, judges . . . function as little more than passive onlookers at the proceedings before them” (52). 13. For a study on the impact of court decisions on society, see Baxi (1992). The idea that courts have little power to implement decisions is not an uncommon argument, even in the United States. 14. Personal communication from Richard Messick, legal and policy analyst for the Public Sector Group of the World Bank ( January 14, 2002). 15. Confirmation of this comes from the low percentage of rights-based claims that reach India’s Supreme Court. See Epp (1998). 16. For work that discusses how the law and lawyers have been used only intermittently to help those in need, see Galanter (1989c). 17. A sunk-cost auction is a game, often used as a business school exercise, in which some good (say 1 million rupees) is awarded to the highest bidder, but the person who bids the second-highest amount also must pay the amount he bid. Thus, even if the opponent’s last bid exceeds 1 million, there is an incentive to bid just a bit more in order to reduce one’s loss by the value of the prize; but then the opponent is presented with a similar incentive, ad infinitum. In practice, the game ends when one party runs out of money or grows indifferent to the possibility of reducing the loss by the prize amount. For a discussion of this concept, see Hadfield (2000). 18. For a discussion of writ jurisdiction in India and its effects on the courts, see Baar (1990); Galanter (1984); and, more generally, Dhavan (1994). Another excellent source on the jurisdiction of India’s Supreme Court can be found on the Web at supremecourtofindia.nic.in/new_s/juris.htm. 19. The tribunals are created through legislation: in this instance, the Motor Vehicle Act (1988), the Consumer Protection Act (1986), and the Administrative Tribunals Act (1985). 20. There are more than twenty national tribunals and commissions in India. For a list, see www.lawinc.com/locator/CommissionsandTribunals.htm. There also are various state-level tribunals. 21. Section 17 of the Recovery of Debts Due to Banks and Financial Institutions

Debased Informalism 129 Act (1993). Also see State Bank of India v. Vijay Kumar Tayal (Delhi High Court, suit nos. 2806 –11, 1993; suit nos. 150 and 493, 1994). 22. Article 40 reads: “The State shall takes steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.” For a classic work on the appeal of traditional institutions, see Rudolph and Rudolph (1967). 23. Reviewing the literature on panchayats, Hayden (1999) concluded that there was no such thing as a village panchayat, only caste panchayats that, if powerful enough locally, might decide matters involving members of other castes as well. His thinking mirrored that of Dumont (1980): “We conclude that on the eve of British conquest, and excepting exceptional cases, there was no village panchayat as a permanent institution distinct from caste panchayats. There was a panchayat of the dominant caste of the village, and there were meetings of ad hoc arbitrators or judges, of a temporary nature” (172). 24. See also Kushawaha (1977), noting that in his study of the Varansi District in Uttar Pradesh, “during the eleven years (1960 –70) only 10449 cases were instituted before 289 Nyaya Panchayats in the whole of the district. This works out at an average of 4 cases per Nyaya Panchayat per year” (99). 25. In a more recent review of how nyaya panchayats functioned in Rajasthan, Uttar Pradesh, and Karnataka in the years following independence, Mathur (1997) concluded that although nyaya panchayats had moments of promise, and at times even brought important legal services to people at local levels, ultimately they were plagued by inconsistent rulings, inept administrators, a weak infrastructure, delays, and a lack of accountability. 26. The attraction long antedates independence in India (see Meschievitz 1987). 27. Desai (1984) also believed that the nyaya panchayats offered “a forum for participatory justice. Local village groups fully aware of local problems, local solutions, and local environment would tend to resolve the dispute in the spirit of give and take, fair-play and equity” (80). 28. In a letter to the authors dated March 13, 2002, Baxi reported that the term lok adalat was used by participants in Rangpur; but his article may well be the source of its wider and official use. 29. See, generally, Baxi (1985b). Kothari (1993) wrote that following the Emergency Rule, civil rights organizations and public-interest groups enthusiastically supported the idea that democracy could be ensured by the rule of law. 30. A number of good sources document the legal reforms in India in the 1980s. For example, see Baar (1990); Baxi (1985a, 1992); Bhagwati (1985); Cassels (1989); Cunningham (1987); Dhavan (1994); Galanter (1989d); Mendelsohn (1991); Menon (1985); Peiris (1991); Sathe (1998a, 1998b); and Susman (1994). 31. Implementation of legal aid before the Emergency was desultory (see, generally, Koppell 1969). Among the many “populist” amendments to the Constitution enacted during the Emergency was a new directive principle decreeing “equal justice and free legal aid.” See, for example, 39A: “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any

130 Marc Galanter and Jayanth K. Krishnan other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities” (inserted by the Constitution Act (Forty-Fourth Amendment, section 8) of 1976. 32. The Committee on Implementation of Legal Aid Schemes (CILAS) was established in 1980 by the government of India with Supreme Court Justice (as he was then) P. N. Bhagwati as chair of Budget Activities. 33. See fnf-southasia.com/cerc.htm. 34. Narasimhan (1999) describes the history and current activities of AWARE. 35. Peoples’ Union for Democratic Rights v. Union of India, 1982 SC 1473. 36. Article 23 states in part that “traffic in human beings and beggars and other similar forms of forced labour are prohibited and any contraventions of this provision shall be an offence punishable in accordance with the law.” 37. From a public-interest law Web site (www.healthlibrary.com/reading/ banyan2/9opresed.htm) that tracks social-action litigation in India (accessed in January 2002). 38. A report by the Human Rights Watch Project for Asia (available on the Web at www.hrw.org/hrw/reports/1996/India3.htm) notes that bonded-labor practices continue in India despite the Court’s ruling. 39. Agrawala (1985) identified several Supreme Court judges who had expressed “a not-too-friendly posture” to public-interest litigation (10 –13). 40. Part of the appeal of the lok adalat for judges may be that it reduces—all but eliminates—the role of lawyers in the resolution of disputes. 41. This institution goes by various names in different regions of the country (settlement camp, settlement mela, lok nyayalaya, janata nyayalaya, and neeti mela are just a few); but we use lok adalat because it is the most common name and the one used in the Legal Services Authorities Act (1987, amended 1994). For a critical assessment of the lok adalats, see Whitson (1992). Empirical accounts of the workings of lok adalats are rare, but see Kassebaum (1989) and Moog (1991). 42. For an extended description of the organization and operations of lok adalats, in a detailed account of the establishment of lok adalats as a people’s movement, see Deshta (1995). In a similar vein, a team of Indian and American court reformers claim their reforms restore and modernize the consensual dispute processes often utilized in precolonial society, preserving formal litigation only as a means of last resort (Chodosh et al. 1997–1998). But they also note that “Lok Adalats resembles the traditional panchayat system of five village elders acting as arbitrators for local dispute resolution” (41)—a statement that has no historical basis: Panchayats were composed not of village elders but of caste elders; depending on the circumstances, the panches were no more arbitrators than mediators or legislators; and there were not necessarily five. 43. These figures come from a press release describing the 1997–1998 annual report of the Ministry of Law, Justice & Company Affairs. The release is available on the Press Information Bureau Web site (pib.nic.in/focus/foyr98/fo0799/ Foc0207981.html). 44. We assume these data are from 1982 on, but officials at the NLSA were not able to confirm the date on which the data were first collected.

Debased Informalism 131 45. This reference dates back to the early 1980s, when, it is said, one of the first lok adalats took place under a banyan tree in Gujarat. For evidence that the tradition continues, see Y. Gupta (1999). 46. These figures come from the Press Information Bureau (see note 43). According to the Health Education Library for People (HELP) Web site (www .healthlibrary.com/reading/banyan2/9legal.htm), in the state of Andhra Pradesh, since 1986 claimants have received over Rs. 44 lakhs in payments from automobile insurance companies. But the Press Information Bureau, in its evaluation of the overall performance of lok adalats, states that between 1985 and 2000, “42,477 Lok Adalats were organised in different parts of the country where 90,74,971 cases were settled. In 4,88,669 motor accident claims cases, compensation amounting to Rs.2054,56,21,491 has been awarded” (see pib.nic.in/archive/lreleng/lyr2000/ rfeb2000/r21022000.html). However, the report does not make clear if of the 90,74,971 cases, only 4,88,669 were motor vehicle accident cases (which means the actual percentage of accident cases would be low) or if there were other accident cases that did not settle. (Placement of commas in numbers above reflects Indian style.) 47. Figures are for all lok adalats held in the state from June 1986 to midNovember 1988. Kassebaum (1989) observes that “the big cities use the Lok Adalat to dispose of vehicle accident claims, the small towns and taluks use Lok Adalat to settle long pending criminal and other civil cases. The medium size cities do some of each” (16). Also see Moog (1997, 135 –46), who describes lok adalats in Uttar Pradesh with dockets made up almost entirely of criminal and revenue cases. 48. The analysis was performed by Mary Versailles, then a student at the University of Wisconsin Law School. In three other motor vehicle cases, recovery was confined to the statutory “no-fault” award of Rs. 15,000 for death and Rs. 7,500 for permanent disability. If those three cases are included, the average recovery is reduced to Rs. 44,769. 49. For more information about the PCSJ, see the organization’s Web site (www.councilforjustice.org). 50. The 1994 amendments went into effect November 9, 1995; the latest amendment to the Act was passed in 2002 and held to be constitutional in Pandley v. Union of India, Writ Petition 543/2002, which was decided in late 2002. 51. Even with this provision of Section 21, Gupteswar (1988) noted that he was not certain whether “the so-called finality . . . [has] the effect of barring judicial review under articles 226, 227, 32, or 136 of the Constitution” (181). Gupteswar, writing before the 1994 amendments were passed, argued that judicial review was still possible. 52. The questions listed here presuppose that litigants are rational actors, that they weigh and act on the economic costs and benefits of their alternatives. We realize, though, that other considerations also can come into play, among them family honor and the opportunity costs of delay. For a detailed discussion of the general effects of litigation, see Galanter (1983). 53. On the formidable conceptual and methodological problems involved in evaluating alternative methods of dispute resolution, see Galanter and Cahill (1994).

132 Marc Galanter and Jayanth K. Krishnan 54. But see Diwan (1991), who claims that discounts are only 5 to 10 percent of the value of the claim. 55. For purposes of the argument here, transaction costs include lawyers’ fees, court fees, bribes, and other litigation expenses; uncertainty of outcome; and uncertainty of execution if a favorable outcome is obtained. 56. For a general evaluation of how the injured and poor are treated by the Indian legal system, see Menon (1988). 57. In a story published in the Hindustan Times, an unidentified government source was quoted as follows: “Eminent lawyers have argued that this case, which has already been four years in various courts in the pretrial stage, would in the most optimistic circumstances need anywhere from 15 to 25 more years for an ultimate decision” (Bhopal gas settlement 1989). 58. For a detailed account of this argument, see Cassels (1993) and, more generally, Galanter (1985). 59. For an ironic discussion of how several initiatives by Indian courts and lawyers actually ended up helping Union Carbide, see Galanter (2002). 60. Epp (1998) notes how the public-interest sector was “energized” to seek massive social change after the Emergency Rule ended. 61. From Jayanth Krishnan interview with Jitendra Sharmma, a senior advocate and secretary general of the International Association of Democratic Lawyers, December 11, 2001. 62. Measuring the quality of dispute resolution processes is a problem that has received considerable attention as an offshoot of the alternative dispute resolution movement in the United States. Interest in these questions is worldwide (see Plett and Meschievitz 1991). There have been important developments in understanding the conceptual problems of evaluation and in the techniques of assessment. Of course, Indian conditions are unique, and new learning cannot automatically transfer. But many of the questions the literature addresses do arise in the Indian setting, and they may well be useful starting points for those wanting to address the lack of analysis in the system of justice there. 63. The notion of bargaining in the shadow of the law derives from Mnookin and Kornhauser’s (1979) work, “Bargaining in the Shadow of Law: The Case of Divorce” (compare Galanter 1981). Empirical studies of negotiations and settlement in the shadow of formal litigation procedures include Coursey and Stanley (1988); and Korobkin and Guthrie (1994, 1997). 64. In the discussion that follows, we assess the possible development of tort law in terms of personal injury (negligence or related notions of strict liability) and the misuse of authority. We put aside the question of whether that development should include defamation, malicious prosecution, and other intentional torts that have a history on the Subcontinent of being invoked in personal feuds. 65. Wike (1996) comments how “the inadequacies of Indian tort law figured prominently in the litigation that arose out of the Bhopal disaster. In particular, India lacked a codified tort law, and plaintiffs could refer to little in the way of precedent” (329). 66. The literature on this subject is vast. See, for example, Carroll et al. (1991); Landes and Posner (1987); Posner (1972); and Wade et al. (1994).

Debased Informalism 133 67. See Bershok (1992), noting how the Indian legislature and courts are reconsidering existing piracy laws as a result of globalization; Fleiner (2001), stating that there have been fundamental changes in European legal systems as a result of globalization; and Yoo (2000), noting how the U.S. legal system, for one, must adapt to the globalization of political, economic, and security affairs. And see, generally, Aman (1998) and Fix-Fierro and López-Ayllón (1997). 68. Shaiko (1999) discusses the general question of what motivates individuals to engage in public-interest work. Of course the question is not new. Among the classic works that discuss the issue are Clark and Wilson (1961); Hardin (1982); Moe (1980); Olson (1965); Ostrom (1990); and Salisbury (1969). 69. The MCC is an offshoot of the Naxalite movement, which we discuss below. 70. However, still today “tens of thousands are members [and supporters] of the various Naxal groups that operate in several Indian states” (P. Singh 1995). See also A. Gupta (2001), discussing how both criminal and civil cases are being heard by jan adalats. 71. We remain cautiously skeptical about this claim. As A. Gupta (2001) reports, “The MCC . . . forbids their ‘subjects’ from approaching any government courts for dispute settlement.” Until we have corroborating evidence that the people are choosing the political courts voluntarily, we have to acknowledge the possibility that the MCC is forcing them to turn away from the state courts. 72. For a history of the Naxalite movement, see Ray (1988) and P. Singh (1995). 73. Included among these groups is the MCC, which operates out of Bihar. 74. This and other descriptions of the Shiv Sena courts are taken from a letter from Dr. Julia Eckert, written July 22, 2001. 75. Communication dated August 11, 2001, from Professor V. Narayana Rao, a scholar at the University of Wisconsin who studies Indian linguistics and folklore. 76. Correspondence dated January 15, 2002, from Dr. V. S. Rekhi, director of the National Law Institute University, Bhopal, Madhya Pradesh. 77. The hollowing-out thesis is discussed at great length in the public-policy literature. Among the important works in this area are Di Francesco (2001); Gray (2000); Rhodes (1994, 1997a, 1997b); and Sadler (1999). 78. Di Francesco (2001) writes that the “rise of the ‘contract state’—where contractual relations form the basis of . . . public service delivery [in our case, justice and legal access to the poor]—reduces government leverage over public policy because of escalating fragmentation and loss of expertise” (104). Also see Foster and Plowden (1996) and Rhodes (1997b).

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ch apter

Democratization of Justice: The Indian Experiment with Consumer Forums

4

robert s. moog

during the course of the past ten to fifteen years, reforming the justice

system has become an essential component in the struggle for both economic and political development around the world. In that period, an immediate post– cold war wave of democracy combined with rapid economic liberalization in many regions. Inextricably woven into these surges in democratic politics and market economics was the concept of the rule of law— that basic civil liberties are protected by laws that are understood by and applied equally to everyone, including government officials (Carothers 1998). The fascination with this concept has taken on such currency in development circles that Erik Jensen and Thomas Heller, in their introduction to this collection, refer to the period as the “rule-of-law era,” and Bryant Garth (2001) speaks of a “global industry promoting the import and export of the ‘rule of law’” (12). As Jensen notes in Chapter 10 of this volume (borrowing from Thomas Carothers’s typology), rule-of-law reforms target three areas: substantive law, law-related institutions, and government compliance with the law. Included in the reform of law-related institutions is the concept of access to justice and the strategy of developing forums for alternative dispute resolution (ADR). In discussing rule-of-law reforms, Jensen suggests a stepchild status for access-to-justice strategies with their notion of “lip-service intervention” from some donor organizations. Yet absent a broadening of the availability of independent, competent, efficient, and enforceable legal services to as wide a spectrum of the population as possible, the rule of law remains a largely hollow concept in many societies (see, for example, Blair and Hansen 1994; Brown, Cervenak, and Fairman 1998; and Dakolias 2000).

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The question, then, becomes how best to expand legal services in any particular context.1 When considering the enhancement of access to legal services, there are two broad avenues to pursue. The first involves reform of the core institutions within the formal justice system; the second, creating alternatives to that system. They are not mutually exclusive. The former can incorporate a wide variety of strategies, some of which are outlined by Blair and Hansen (1994). These include instituting or expanding conventional legal aid, legal literacy campaigns, and paralegal activities. Other reforms designed to facilitate access to the formal system involve simplifying procedures and lowering costs. The ADR path encompasses a bewildering array of possibilities—internal or external to the judicial system, mandatory or voluntary—among them conciliation, mediation, arbitration, and adjudication. Although the distinctions among the procedures are not always clear, their objectives remain the same.2 The fascination with ADR results from its proponents’ claims that alternative forums offer at least a partial solution to the problems of high cost, delays, and the questionable quality of justice delivered to litigants by the formal system in many countries. In addition, those forums often are expected to benefit the formal system by reducing caseloads, thereby expediting the flow of cases that remains. But these alternative forums have not always met the lofty goals set for them and, not surprisingly, raise concerns about their unintended consequences.3 India is somewhat unusual within the rule-of-law movement because of its relatively long history of democracy compared with many nations in Eastern and Central Europe, Latin America, Southeast Asia, and elsewhere. Since independence in 1947, democracy has remained in place except for the approximately twenty-one months of emergency rule from June 1975 to March 1977. Even then, the Emergency ended as the result of Indira Gandhi’s defeat in national elections. But despite India’s democratic history over the last fifty-six years, it remains a country struggling with certain liberal democratic norms. One of those norms is increasing the public’s access to justice, which in India means dealing with the problems that plague its lower courts. Like the lower-level courts in many other developing countries, local courts in India confront debilitating delays, underfunding, and accusations of corruption, all of which act to restrict access to and confidence in the judiciary. India has long recognized the need for reform, even though policymakers have not always moved beyond the talking or studying stage.4 Today that tradition of recognizing and studying the need for reform continues.5 But there is one area of reform in which India has been and continues to be

144 Robert S. Moog active: finding alternatives to the formal justice system. Attempts at statesponsored ADR have ranged from less-formal nyaya panchayats, lok adalats, and court conciliation, to more-formal tribunals.6 The widespread resort to tribunals represents an important element in India’s attempts to broaden access to justice. Tribunalization is the process of creating specialized forums to handle specific types of disputes within an adjudicatory framework, while reserving an ultimate appeal to the formal court system. Although some tribunals are ad hoc in nature—formed to deal with a specific situation and then disbanded—many are permanent bodies. Among the latter are the Income Tax Appellate Tribunal, the Customs and Excise Tribunal, the Central Administrative Tribunal (which deals with service matters of employees of the central government), the Railway Claims Tribunal, and the Motor Accidents Claims Tribunal. There also has been much talk, some of it emanating from the Supreme Court, of creating special environmental tribunals that would consist of both judicial and technical members.7 A recent addition to this list is the consumer forums, or courts, that were mandated by the Consumer Protection Act (CPA) of 1986. The act was passed in 1986, but most forums were not established until the beginning or mid-1990s. It is these new consumer bodies that are the focus of this paper. Although our focus is new, the questions raised here are similar to those asked of alternative forums elsewhere: Do they increase access to justice, and if so for whom? Do they improve the quality of justice in the system? And, last, what effect do they have on the workings and possible reform of the formal civil justice system?

Consumer Forums and Commissions structure and organization The CPA calls for the establishment of three levels of “redressal agencies”: forums for each district in a state, a commission for each state, and a national commission located in New Delhi.8 The composition of these bodies and the methods of selecting their members clearly distinguish them from the civil courts. District forums consist of three members: the president, who is, has been, or is qualified to be a district judge, and two other members—at least one of them a woman—who must be at least thirty-five years old, hold a bachelor’s degree, and have at least ten years’ experience in economics, law, commerce, accounting, industry, public affairs, or administration. Appointments are made by the state government on the recommendation of a three-person selection committee consisting of two state secretaries and the president of the state consumer commission. Members of the district forums hold office

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for a term of five years or until age sixty-five, whichever comes first; they are eligible for reappointment to a second five-year term.9 The state commissions consist of three members: the president, who is or has been a judge of a high court, and additional members, at least one of whom must be a woman. The members must meet the same requirements as the members of the district forums. Members of the state commission are selected in the same way as members of the district forums, except that the chief justice for the high court of the state must be consulted before the president is chosen. The term of office is identical to that of the district forums, but the age limit for commission members is sixty-seven. The national commission consists of at least five members: the president, who is or has been a justice of the Supreme Court, and additional members, at least one of whom must be a woman, and all of whom must meet the same requirements of the additional members in the district forums and the state commissions. Members of the national commission are selected by the central government on the recommendation of a selection committee made up of two central government secretaries and a current justice of the Supreme Court. The selection of the president is made only after consultation with the chief justice of India. The term of office is the same as it is for the forums and state commissions, but the mandatory age limit is seventy. jurisdiction and procedures Jurisdiction is governed by the size, in rupees, of the complaint. The district forums have original jurisdiction over consumer complaints ranging up to Rs. 20 lakhs (1 lakh equals 100,000).10 This is a substantial sum, so we would expect the overwhelming majority of complaints to originate at the district level. Actually, the limit originally was set at Rs. 100,000; it was raised to Rs. 500,000 in 1993 and again to Rs. 20 lakhs in 2002. Even at the lowest figure, one author noted, few consumer items in India other than a car would fall outside the scope of jurisdiction of the district forums (Saraf 1990). By raising the limit, Parliament made clear its intention that the work of the two upper levels be limited to major liability cases and appeals. The state commissions handle original complaints exceeding Rs. 20 lakhs to a maximum of Rs. 1 crore (10 million), as well as appeals from district forums. The national commission hears original complaints in excess of Rs. 1 crore, in addition to appeals from the state commissions. The proceeding is triggered by the filing of a complaint with the appropriate forum or commission, and proceeds much as a civil case would. Notice to the opposing party is required, and he or she is given an opportunity to respond. The forum or commission then takes evidence in the dispute. The CPA specifies that the powers of the forums and commissions are identical to those of the civil courts in terms of subpoenas, discovery, affidavits,

146 Robert S. Moog and the requisitioning of laboratory reports. The CPA did not set a time frame for the duration of cases, although three months from receipt of notice to final order was the standard commonly referred to in judging the performance of the forums and commissions.11 CPA 2002 made this explicit by setting the three-month limit as a general goal, not a requirement, for all three levels. At the district level, the president and at least one other member must be present for the proceedings to take place and an order to be signed. CPA 2002 gives the commission presidents at the state and national levels the authority to establish benches of one or more members to hear cases. Appeals from the district forums go to the state commissions and from there to the national commission. Final appeal is to the Supreme Court. Each appeal must be made within thirty days of the preceding order, although exceptions are allowed for “sufficient cause.” The execution process also is designed much as it is in the regular courts. The forums and commissions have the authority to enforce a decision “in the same manner as if it were a decree or order made by a court”; and, when necessary, they also can request the assistance of the regular courts in executing an order. In addition, the CPA gives the forums and commissions the power to fine and/or imprison those who fail to comply with an order. The CPA does not refer to the forums and commissions as courts; and the forums and commissions do not fall under the supervision of the judicial branch. But they clearly are designed to function in an adjudicatory manner: witness the rules governing complaints, notice, evidentiary matters, orders, appeal, and execution. According to the Central Consumer Protection Council (CCPC, 2000), the goal of these forums is “to provide speedy, simple and inexpensive redressal to consumer disputes through summary trials” (4).12 These formalities, together with the common presence of attorneys, make the proceedings adversarial in nature. This is not a case of creeping adversarialism or co-optation by those who would prefer to see these bodies operate along those lines.13 Rather, the similarities to the regular courts are clearly intended. functioning Although the CPA was passed in 1986, by the early 1990s many districts were still without forums. In the southern state of Tamil Nadu, for example, district forums and the state commission were not established until 1991 (CAG 1999). But by 2002, the national commission reported that in the 556 districts nationwide, a total of 570 forums had been established, and all but 52 were listed as “functional.” The states of Bihar (17), Uttar Pradesh (10), Madhya Pradesh (7), and Tamil Nadu (7) accounted for the great majority of nonfunctioning forums.14 Some districts have multiple forums, but the

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report did not indicate how many had yet to establish even one. Among the thirty-five states and union territories, as of the end of 2001, all but two (the new states of Uttaranchal and Chattisgarh) had commissions, but the report did not indicate which, if any, were not functioning. Frequently, the forums that were set up but not functioning were missing one or more members. A common complaint concerned the delay in naming replacement members when vacancies occurred (see, for example, NCDRC 2000). In mid-1999 in Chennai, the capital and largest city in Tamil Nadu, the two district forums in the city were not functioning, nor was the state commission. The commission had no president, which was also the case for one of the district forums; the other forum was short both of its nonlegal members (CAG 1999; also see CCPC 2000).15 Also, a vacancy for any length of time in the presidency of a state commission can have a domino effect because the president heads the selection committee for vacancies at the district level. Once established and functioning, the bodies have had little trouble attracting disputes. In fact, caseloads have led to concerns regarding overworked staff and delays in the process. The CCPC (2000) listed twelve problems that affect the functioning of forums and commissions, many of which, like the lag in filling vacancies, relate directly to delays: poorly supplied facilities, inadequate supervision of the district forums by the presidents of state commissions, a lack of qualified staff, part-time work schedules for many forums (this is a particular problem when the president of a district forum is also a sitting district judge and so has other responsibilities), frequent and lengthy adjournments, delays in issuing initial show-cause notices and final orders, and the failure to establish additional forums where needed. The data supplied by the CCPC in November 2000 offer some insight into the popularity of these institutions and the problem of delays. In the relatively short time the district forums had been functioning, 1,357,730 cases had been filed nationwide at the district level. Of those cases, 1,110,915 (81.8 percent) had been disposed of by the time the state commissions reported the numbers from their district forums. The report then breaks out the cases by time to disposal, using the 90-day period as a benchmark. Among the cases examined in this section, 28.8 percent were decided within 90 days; 20.8 percent were decided within 90 to 150 days; and 50.4 percent were decided in more than 150 days.16 Some states were clearly having more problems than others in meeting the 90-day goal. Gujarat reported 44,100 disposals, not one within 150 days.17 Among the state commissions, the delays appear even worse. Of the 190,969 cases filed since the inception of the individual commissions, 112,083 were resolved, a disposal rate of 58.7 percent. Here, too, the 90-day goal presented serious problems. Only 24.0 percent of the cases resolved

148 Robert S. Moog were decided within 90 days; 19.6 percent were decided in from 90 to 150 days; and 56.3 percent were decided in more than 150 days.18 Again Gujarat stands out: all 4,762 of the cases disposed of took more than 150 days.19 Lastly, at the national level, as of September 2000, 20,622 cases had been filed and 11,185 (54.2 percent) had been decided. Unfortunately no figures were provided concerning time to disposal. With fewer than half of all filings in the district forums and state commissions being resolved within 150 days, and fewer than a third being decided within the generally accepted goal of 90 days, concerns over delays are well founded. We know that vacancies are a key factor here; another may well be the formal nature of the proceedings. Many of the presidents of the forums and commissions are sitting judges or ex-judges, and often they dominate the proceedings. As the head of one consumer advocacy group in Chennai noted, they run the proceedings much as they would a courtroom. He felt that the process too easily becomes bogged down in procedural details, and that too many adjournments are granted.20 Also a factor in delaying time to disposal is the adversarial nature of the process. The participation of attorneys adds to the contentiousness of the proceedings and so, some argue, to the duration of those proceedings (and to the costs) (see, for example, Consumers Forum Chandigarh 2000b and Misra 2000). The evidence here is largely anecdotal, supported by a few figures, but it does give rise to the image of an adversarial process largely driven by legal professionals. And among the recommendations for expediting the dispute resolution process in consumer matters emerging from a workshop in the northern city of Chandigarh was a call to discourage the use of attorneys (Consumers Forum Chandigarh 2000b).21 In response to this concern, an early draft of CPA 2002 would have limited the appearance of respondent counsel only to those cases in which the complainant is represented by an attorney or is an attorney, or has no objection to the respondent’s being represented by an attorney. The clause ultimately was omitted in the final version of the amendments.22 The data on the extent of attorney representation in the forums and commissions are sparse. Misra (2000) conducted a very limited study of eightysix cases involving allegations of medical negligence in Delhi, Lucknow, and Hyderabad. He found that 70 percent of the providers hired “outside” lawyers, but there were no figures for how many, if any, of the remaining 30 percent were represented by in-house counsel. Nor were there figures for the number of consumers represented by counsel. However, Misra did interview thirty-nine lawyers in the forty-six cases that were pending at the time of the survey. Thirty of them were representing the consumer. Again, the database is small; but, at least in cases involving medical negligence, attorney participation appears to be quite high. How typical this finding is of

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consumer cases in general is impossible to say. But the report does suggest that consumer matters are developing into a flourishing source of business for some attorneys. Seventeen of the thirty-nine lawyers interviewed who were working on pending cases reported a current caseload of more than fifty consumer cases. Misra’s conclusion: many of these lawyers may be using the adversarial process to stretch out the proceedings and then benefiting financially from the delays. This is particularly troublesome in a group of cases in which 90 percent took more than 90 days to be resolved. The professional inclinations of lawyers combined with the courtroomlike procedures laid down in the CPA create a highly adversarial process. This extends to the execution stage as well, where the CPA treats the orders issued by forums and commissions like the orders of a civil court and allows for referral to the regular courts. We found no data on the success with which forum orders are executed, but there is anecdotal evidence that execution may be a problem.23 Referral to the civil courts, however, may not provide much relief. There is strong evidence of serious barriers to the successful execution of judgments in the civil courts.24 Whether there is something peculiar about consumer disputes, or certain subcategories of them, that yields higher rates of successful implementation remains to be seen. It certainly is not unreasonable to assume that private businesses might be more concerned than other groups of judgment debtors about public opinion and so less inclined to exploit the adversarial process to avoid execution of what in many cases for them may involve relatively insignificant sums. One other set of players that influences the functioning of forums and commissions is consumer advocacy groups. The Consumer Coordination Council (CCC) in New Delhi acts as a national coordinating body and resource center for these groups. As of August 2000, the CCC listed fortythree member organizations divided regionally. In addition, eight organizations throughout the country were listed as affiliate members; and one, Friedrich-Naumann-Stiftung, a German nonprofit working to support democratic development around the world, was listed as a co-opted member. The importance of these groups goes beyond their roles as consumer watchdogs and educators. Once a dispute arises, they also advise, negotiate, and even represent complainants.25 In all three capacities, they can have a significant impact on the workload of the forums. The Consumers Forum Chandigarh (2000a), which was founded in 1979, estimated that after weeding out unfounded complaints, 65 percent of its cases had been settled without resort to the local consumer forum. By the year 2000, that amounted to more than 3,000 cases. By comparison, the forum in Chandigarh reported a total of 20,663 filings from its inception in March 1989 through the end of 2001 (NCDRC 2000).26 Not only do the settled complaints represent a savings of time for the forum (assuming many

150 Robert S. Moog of the complainants would have gone there); but many of the unfounded complaints (for which there are no numbers) also could have ended up in the district forum absent the intervention of the consumer organization. What consumer advocacy groups have been able to accomplish through their educational, advisory, and representative functions is to increase access to justice by publicizing the existence of the consumer forums and by providing the technical support necessary to take advantage of them.27 At the same time, certainly in Chandigarh and probably elsewhere, they act as a filtering device to weed out nonmeritorious claims and to assist in settling others. What the net result of this is on the workload of the forums, both in quantity and quality of disputes, is impossible to gauge without further research. The same can be said of replicating the success of the Chandigarh group elsewhere.28 One last issue concerning the role of these organizations: what happens at the execution stage if a complainant needs help? Do the advocacy groups have the influence to induce compliance with an order when the judgment debtor might otherwise opt to extend the process in the hope that the consumer will exhaust his or her resources or simply tire of the chase? Considering the difficulties the civil courts confront in executing orders, certainly the possibility exists in the consumer forums as well.

Analysis This essay began with the assumption that the consumer forums and commissions in India are a form of alternative dispute resolution. For some, the question of what is and is not ADR is troubling.29 Certainly these institutions, whatever we label them, look and act like courts. Although Chapter III of the CPA uses the term settle in reference to the work the forums and commissions do, neither mediation nor arbitration is one of their assigned tasks. Prehearing settlement conferences are not required. In fact these forums may not even fall into Sabatino’s (1998) “litigation lite” category—a designation he uses to describe ADR processes that rely on analogues to many of the procedural devices used in the civil courts. It is not unreasonable, then, to question their alternative status. Still, despite similarities with the civil courts, forums and commissions are not part of the judiciary. Depending on the state, they can come under the supervision of different departments. In Delhi, for example, they fall under the Department of Consumer Affairs. In general, most of the staff seem to come from the civil supplies departments of the various states (NCDRC 2000).30 Therefore, many if not all of the forums and commissions are staffed by personnel, other than the president, with little or no experience in the courts or with dispute resolution of any kind. More significant is the pres-

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ence of laypersons on the bench, who arguably remove some control of the process from legal professionals by bringing to the forums and commissions their own expertise in consumer matters. Most important, these bodies do offer complainants an alternative outside the civil courts. Whatever the similarities, the process is cheaper—there are no court fees—and significantly faster. And it seems that the judicial system is committed to keeping it so. In 1994, for example, in Morgan Stanley v. Kartik Das, the Supreme Court ruled that consumer forums and commissions cannot pass interim orders. Motions for interim orders—and appeals from those orders—are one of an arsenal of weapons lawyers exploit to delay the resolution of disputes in the civil courts.31 And in Harbans & Co. v. State Bank of India, the Court encouraged complainants to take “complex questions of fact and law” that could make it difficult or impossible for a forum or commission to decide a case within the standard time frame to civil courts. Although the proceedings in the forums and commissions are adjudicatory and procedural safeguards have been incorporated to protect the rights of the parties, these bodies do not simply duplicate what the courts are doing. It seems that consumer forums and commissions can be cheaper and faster than the civil courts. But what about the quality of the justice they deliver? Borrowing from Menkel-Meadow (1991), there are two broad justifications for ADR: quantitative efficiency and qualitative justice. The former refers to the goal of reducing the burden on the courts, in turn expediting dispute resolution both for those who opt out of the courts and for those who remain. The latter is linked closely to notions of democracy and is characterized by increased “community empowerment, party participation, and access to justice” (6). Any analysis here is limited by the lack of information on the forums and commissions. An examination of quantitative efficiency also is hampered by the absence of accurate data on the caseloads of the civil courts. A quantitative analysis of the cases the consumer forums draw from the civil courts and their impact on those courts is out of the question. But drawing on anecdotal evidence and general knowledge of the civil courts, it seems highly unlikely that forums and commissions have any significant impact on the caseload of the civil courts. Again, no breakdown is available on the number of consumer disputes that have made their way into the civil courts, but there is reason to believe that relatively few cases are filed. The available research indicates that the majority of cases filed in civil courts relate to real property (see, for example, Moog 1997). Certainly as the country continues to urbanize and consumer awareness continues to grow, the landscape of litigation could change as well. But it seems unlikely that a significant number of consumer cases will find their way into the civil courts considering the costs

152 Robert S. Moog and time involved in using those courts. Where a dispute involves Rs.1,300 from a dry cleaners for damage to a sari or replacement of a defective Timex watch, the costs of using the courts far outweigh any benefits that might accrue to the consumer three to five years into the future.32 In most consumer disputes it is reasonable to assume that the complainant will not pursue the case unless it is economically rational to do so. This differs from the reasoning behind many cases filed in the lower courts, where, for example, honor, revenge, or local politics may take precedence over purely economic rationales for using the courts (Cohn 1965; see also Moog 1997). This conclusion was corroborated by the head of a consumer advocacy group in Chennai, who added that before the creation of the consumer forums, people there simply did not think in terms of the courts to resolve these types of disputes.33 If the argument above is correct, and the forums have had no significant effect on the workload of the lower courts, have they improved the quality of justice? Again, Menkel-Meadow (1991) describes three criteria here: community empowerment, party participation, and access to justice. It is difficult to see how the forums and commissions have expanded community power. Although the appointment of lay members under different circumstances could greatly increase community involvement in the process, at least two problems arise. First, the requirements for appointment limit the pool of possible members to a relatively small, educated elite. Second, and more important, the adjudicatory nature of the proceedings tends to enhance the influence of the judge or ex-judge member, who already sits as president of the forum. That and the lay members’ lack of working familiarity with court procedures in many cases diminishes the role of the lay members and the possibility of empowering the community. What may serve to alleviate this situation somewhat are the training programs provided for some, if not all, members of the various forums and commissions. The Indian Institute for Public Administration in New Delhi offers a nationwide orientation program, and at least one state (Uttar Pradesh) offers its own program (NCDRC 2000). In the case of party participation, the adjudicatory nature of the proceedings along with what seems to be a heavy reliance on attorneys leaves little room for the parties to significantly increase their direct involvement in the process once a complaint is filed and attorneys retained.34 (Whether the involvement of a consumer advocacy group in the process allows for greater party participation remains an open question.) Like the lay members of the forums and state commissions, many complainants and at least some respondents lack familiarity with judicial proceedings, which leads them to seek out professional legal help. Where the consumer forums and commissions have had their greatest

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impact on the quality of justice is in increasing access to dispute resolution. The state has created a forum for hearing consumer disputes where no practical course existed for many consumers. That more than 1.8 million original complaints and appeals have been filed in consumer forums and commissions since their inception—24,351 with the national commission, 238,799 with the state commissions, and 1,574,042 with the district forums—is indicative of the market for their services.35 Of course, there is much the numbers do not reveal. For example, we do not know the magnitude of the increase in access. We can take a guess based on anecdotal evidence that many of the 1,574,042 complaints filed at the district level would not have gone to the civil courts.36 On the other hand, in a country of slightly more than 1 billion people, with a burgeoning middle class, what does a total of 1,574,042 consumer complaints filed nationwide over a span of approximately ten years mean? 37 It would seem that a large pool of potential complainants must be dealing with their disputes in other ways. Some certainly are not pursuing their claims because they believe the effort is not worth whatever compensation may result. Are they choosing to forgo their claims even though they are aware of the district forums? Or would they use the forums if they knew about them and had help handling the proceedings? This raises the related issue of the role of consumer advocacy groups in increasing access to justice by publicizing the forums, screening complaints for them, and providing expert help when complaints are filed. Where these groups exist, is the workload of the forums increasing? At the same time, are these groups able to use the “threat” of consumer forums to negotiate settlements in situations where complainants at one time would have had no recourse? If advocacy groups are convincing suppliers of goods and services to settle in large numbers, that may be far more important than the number of actual complaints filed in the forums. One student of these forums has observed, at least in some cases, a reversal of “the traditional hostile business attitude toward the public” and a greater willingness to reconcile with consumer demands (Singh 1993, 8). Although he was referring specifically to cases that had been filed in the district forums, we could expect a similar change in attitude to be reflected in grievances settled before a complaint is filed. In addition, we might expect to see greater numbers of disputes resolved outside the forums as the area of consumer law “matures” and outcomes become more predictable. Although the district forums do appear to have filled a void by providing access to justice for some consumers, many of whom in all likelihood had effectively been shut out of the formal system,38 the potential flaws in the forums are glaring. In certain ways they reflect the problems that plague the civil courts, particularly delays and the execution of judgments. At the workshop sponsored by the Consumers Forum Chandigarh in 2000, one partic-

154 Robert S. Moog ipant suggested that the district forums needed their own ADR forums to alleviate the delays overtaking them. Whether these delays result primarily from resource shortages, or from a deeply embedded set of incentives and disincentives built into the system or carried over from the civil courts, is unclear. But, again, the motivation for the disputes in the consumer forums and for many of those filed in the civil courts is very different. Consumer disputes are more likely to be driven by economic rationalism—an incentive for speeding up the proceedings—rather than the honor, revenge, and politics that often drive actions and delays in the civil courts. As in the case of delays, there also are incentives at work in consumer disputes that may facilitate executions of judgments in many cases. The concern of many businesses with negative publicity combined with the relatively small amount of money involved in many of these disputes should weigh in favor of rapid payment of judgments.39 But when a significant legal precedent could be set by a given case, a greater level of resistance— resulting in delays and appeals—is expected. These forums also confront a problem common in the universe of ADR: the inherent tension between wanting to simplify, expedite, and lower the cost of the dispute resolution process and wanting to retain safeguards against the advantages held by repeat players (RPs)—for example, hospitals, banks, and large retailers.40 The resource advantages of RPs remain a troubling aspect of the system. Their familiarity with the system, the quality of their legal representation, and their ability to outspend most complainants present a challenge that many consumers cannot meet. The less formal the proceedings and the fewer procedural safeguards built in, the greater the possibility of exacerbating discrepancies between complainants and respondents. But it is those safeguards that often add to the time and cost of the proceedings. This is not an easy fix. Although a specialized complainants’ bar is developing that could negate some of the RP advantage, it also may slow the proceedings and add to the cost of the process (Consumers Forum Chandigarh 2000b). This is made more likely by the culture of the Indian bar, which has been to litigate, not negotiate (see, for example, Galanter 1968 – 1969; Kidder 1974 –1975; Moog 1997; and Morrison 1972). Here is where consumer advocates can play a key role by becoming RPs themselves. With experience, they could keep costs down and expedite the process, while draining it of some of its formality—particularly if they emphasize negotiated settlements. They also appear to have no incentive to see worthless or weak claims filed—which cannot be said of those members of the bar who see consumer forums as a rich new source of disputes to mine whatever the merit of the complaint. Another issue raised by these forums pertains to their effect on efforts to

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reform core institutions in the formal justice system. We noted above that the consumer forums probably have had little impact on the caseloads of the civil courts. But they may lessen the incentive to reform that system. As part of a larger tribunalization process, the forums remove a potentially influential constituency— one that when compared to the population as a whole is probably more literate and more urbanized, and has more disposable income—from those who might voice demands for reform of the courts. Actually, the CPA may well have been an effective strategy for those with a vested interest in the judicial status quo. Reform is a good deal more difficult for the Old Guard than creating alternatives is (see, for example, Blair and Hansen 1994; Brown, Cervenak, and Fairman 1998; Carothers 1999; Dakolias 2000; and Messick 1999). The danger here is a bifurcated system of justice: an informal system for those with the political clout to escape the formal system, and that formal system for everyone left behind.41 Judging by caseloads and anecdotal evidence, effective reforms for the civil courts have not been implemented.42 What is not clear is the effect tribunalization has had on this. In all likelihood, the causality flows in both directions: alternative forums are created because of the state of the courts; and because there are alternative forums, the pressure for reform of the courts decreases. We do not know all that we need to know about the functioning of forums and commissions, but we can draw some preliminary conclusions about their effects on efforts to strengthen the rule of law in India. Their greatest asset is providing access to dispute resolution for a broad and growing group of consumers who, without them, were effectively left to their own devices in dealing with the providers of services and goods. In this category we would place not only those disputes that are filed and then heard, but also those that are settled with or without a filing. Absent the CPA, the forums and commissions, and the participation of consumer advocacy groups, it is likely that many providers would feel no compulsion to participate in negotiations. In terms of cost, more data are needed, but the absence of filing fees represents an immediate savings over the formal courts. The figures available regarding time to resolution, although disturbing in terms of the 90-day goal set for the forums and commissions, at first glance represent a significant improvement over the civil courts. More than 49.6 percent of the filings in the district forums (as of November 2000) were resolved within 150 days.43 Still, delays remain a troubling prospect for the forums and commissions. In fact, there already is some dissatisfaction because of them: a majority of consumers and providers interviewed in medical negligence cases reported their experience with the district forums was largely negative and listed delay as a major shortcoming (Misra 2000). Linked to the issue of delay is the dilemma

156 Robert S. Moog of achieving a balance between a less formal, more expeditious process and the need for safeguards to protect consumers from the advantages RPs bring to the table.

Directions for Future Research The available information leaves significant gaps in the analysis of the early performance of consumer forums and commissions. What must follow is a far more extensive piecing together of information on a variety of issues. Certainly data need to be collected systematically on the operations and outcomes of these bodies and of the courts to make detailed analyses and comparisons possible. But even more important is a thorough understanding of the players. That understanding should begin with the consumer organizations, perhaps the most important actors on this stage. They ordinarily enter the process well before a complaint is filed; and they can remain in it until a judgment is satisfied. Because of the scope of their activities and the variety of roles they can play, they clearly enhance access to justice; but it is very difficult to judge their net effect on consumer forums. Unfortunately, much that we know about these organizations is anecdotal. To better understand their effect on the process, we need more thorough knowledge of the number of disputes they weed out, the number of disputes settled before a complaint is filed with a forum, the number of complaints settled after filing, the number of complaints that go to a hearing, the number of cases won, and the number of judgments that are successfully executed. At this time, we do not even know if consumer groups increase or decrease the workload of the forums, much less the more difficult issue of their impact on the quality of justice. In terms of the parties, data are needed to identify complainants and respondents. Are complainants overwhelmingly one-shotters and the respondents RPs? And if so, how does the difference affect the quality of justice? Are complainants predominantly middle class and urban as is suspected? What groups are shut out of the process, and why? We need data on winners and losers. What kinds of disputes are being filed? What amounts are involved? If most disputes are over damaged saris and Timex watches, are attorneys necessary? Are particular types of disputes more likely to take longer than ninety days? And if so, which ones? How often are appeals filed? Which party is more likely to appeal? What is the likelihood of collecting on a judgment? And are the participants satisfied with the process? For the bar, the area of consumer disputes has the potential to be a significant source of income. This is a relatively untapped area of the law, which could grow tremendously as the middle class continues to expand and

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India becomes even more of a consumer society. But historically, lawyers in India litigate. Can they adjust to an expedited process? Can they expand their role to include negotiation? Or will the trial culture carry over to these new forums? To begin to determine the impact attorneys have on the process, data are needed on the frequency with which they are used in the forums, on who is using them, on their settlement rates, and on the duration of cases in which lawyers are involved versus the duration of cases in which one or both parties are not represented by counsel. With so many pieces of the puzzle missing, any attempt to judge the performance of India’s consumer forums is tenuous at best. Still, the early reviews seem to be mixed. The hoped-for beneficial effect on the civil courts appears to be negligible, and delay is already a problem. As more people turn to forums and commissions, absent reforms in the process or significant increases in the number of forums, delays are likely to worsen. Still, whatever their weaknesses, the benefits of opening up an avenue of dispute resolution for a significant and growing segment of the population, whether through negotiation or the hearings process, certainly justifies the continuation of the experiment.

Notes 1. At least one donor organization (USAID) has published a nuts-and-bolts guide describing the conditions under which ADR is an appropriate response to the goal of strengthening the rule of law (which includes increasing access to legal services). See Brown, Cervenak, and Fairman (1998). 2. The lok adalats in India are an interesting example of an ADR forum that is difficult to categorize. They appear to be one thing on paper and quite another in practice (Moog 1991). 3. With so many ADR forums operating in such a wide variety of contexts and with multiple and varied goals, it is dangerous to generalize about their success or failure. In addition to the Rand study (Kakalik et al. 1996), see, for example, Blair and Hansen (1994); Menkel-Meadow (1999); and Reducing Court Delays: Five Lessons from the United States (1999). 4. Many of the problems confronting India’s courts predate independence. Probably the most exhaustive study along these lines from the British period is the Civil Justice Committee Report, 1924 –25 (Civil Justice Committee 1925), better known as the Rankin Committee Report. In the postindependence period, the Indian Law Commission periodically has issued reports on the plight of the lower courts. See, for example, Ministry of Law (1956) and Ministry of Law and Justice (1978). 5. For example, an ex– chief justice of India, A. M. Ahmadi, recently was involved in a policy review of the civil justice system (see Chodosh et al. 1997–1998).

158 Robert S. Moog In addition, the Law Commission of India is charged with performing an ongoing review of the justice system. Since its inception in 1955, the commission has issued 175 reports on a wide variety of issues. 6. The less-formal institutions generally have not met with much success. The nyaya panchayats were a short-lived experiment and now are effectively defunct (Meschievitz and Galanter 1982); and court conciliation appears to be used only rarely, at least in Uttar Pradesh (Moog 1997, 144 –46). For a review of the workings of lok adalats, see Marc Galanter and Jayanth Krishnan’s contribution to this collection in Chapter 3. Earlier studies of the lok adalats gave them no better than mixed reviews. See, for example, Kassebaum (1989); Moog (1991); and Whitson (1992). 7. See M. C. Mehta v. Union of India (1986) and Andhra Pradesh Pollution Control Board v. Professor M. V. Naydu (1999). 8. The terminology used to describe the agencies is confusing. The Supreme Court uses tribunals. At least one author goes to great lengths to distinguish these bodies from the civil courts (Ahmad 1999, 264, 269, 271), which hasn’t stopped the press from using courts. But Forums is the term that appears in the CPA with reference to the district-level institutions, and commissions is used for the state- and national-level institutions. For the sake of consistency, we use those terms here. 9. The Consumer Protection (Amendment) Act of 2002 (CPA 2002) allows the reappointment of presidents and members to all three levels of tribunals. CPA 2002 is available on the Web at fcamin.nic.inkacpa_ind.htm (visited February 12, 2003). 10. At the time this research was conducted, in the fall of 2000, the exchange rate was fluctuating between Rs. 45 and 48 to the U.S. dollar. 11. That limit appears in Rule 14 of the Consumer Protection Rules (1987) in reference to the national commission. 12. The CCPC was authorized by the CPA to “promote and protect the rights of the consumers.” In its role of promoting and protecting consumer rights, the council acts as a clearinghouse for national data on the functioning of the consumer forums and commissions. Specifics regarding its members and procedures are set out in Rules 3 and 4 of the Consumer Protection Rules (1987). There are comparable councils at the state level as well, and CPA 2002 now requires the states to establish councils at the district level. 13. Menkel-Meadow (1991) referred to this concern as the “colonization of alternatives,” resulting from the clash in some ADR forums of an adversarial culture (represented by lawyers) with that of the intended settlement culture. Here, there is no intended settlement culture. 14. The data here were taken from the National Consumer Dispute Redressal Commission (NCDRC) Web site (ncdrc.nic.in/) on August 29, 2002. The dates on which each of the thirty-five states and union territories reported to the NCDRC ranged from October 31, 1997, for Jammu and Kashmir, to December 31, 2001, for twenty-seven others. 15. Before CPA 2002 was passed, the presidents at all three levels had to be present for all cases. With the use of benches, that is no longer true at the state and national levels. 16. When the total cases disposed of since inception were broken down by the states into time to resolution, the total of the three categories (within 90 days, from

Democratization of Justice 159 90 to 150 days, and more than 150 days) did not match the total cases disposed of. The percentages given here reflect the proportion of all the cases reported in the three time categories. 17. The reporting dates varied from September 1998 for Nagaland to as recently as September 2000 for seven other states. Among the thirty-two states and union territories reporting at the time, Nagaland was the only one to report 1998 figures. Four reported data for 1999; the rest of the figures were from 2000. 18. We also found a discrepancy between the total cases disposed of and the total cases in the three time categories for the state commissions. The percentages are based on the total cases in the time categories. 19. The reporting periods for the state commission data were similar to those for the district forums, although not identical for each state. They also ranged from September 1998 for Nagaland through September 2000 for seven states, with four states reporting in 1999. 20. Interview with the editor of CAG Reports (Chennai, October 2000). Concern over adjournments also was raised at the conference organized by the NCDRC and the Department of Consumer Affairs in February 2000 (NCDRC 2000). 21. Chandigarh is the shared capital city of the states of Punjab and Haryana in northwestern India. 22. The clause was commented on in the Statement of Objects and Reasons that was attached to the bill when it was introduced in 2001. See fcamin.nic.in/cacpa _ind.htm (visited August 31, 2002). 23. The president of the Delhi State Consumer Dispute Redressal Commission expressed concern that forum orders may become meaningless in the eyes of consumers because of problems with implementation (CCC 1997–1998). 24. Recent data on the lower courts are difficult to find. As of 1995, the only state I was aware of that still was publishing district-by-district data on an annual basis was Kerala, in the south. Samplings of older data make clear that successful execution in the lower courts was the exception not the rule. For example, the most recent figures I could find for Tamil Nadu (1989) were for 1985, and they showed full satisfaction of the court order in 25.5 percent of the cases and partial satisfaction in 21.7 percent; in 51.4 percent of the cases, the orders were listed as valueless. (The remaining 1.4 percent of cases were not accounted for.) Earlier data from the northern state of Uttar Pradesh show similar percentages (Moog 1997). For every year between 1948 and 1976, the number of applications for execution that turned out to be totally valueless outnumbered those in which at least some money was collected. Unfortunately no figures are available after 1976. 25. In the fall of 2000, I met with three groups—the Citizen, Consumer and Civic Action Group (CAG) in Chennai, the Voluntary Organization in Interest of Consumer Education (VOICE) in New Delhi, and the Consumers Forum Chandigarh. Each confirmed that it offers advice, negotiating help, and representation to consumers. 26. The advocacy group’s report does not break out the number of settlements per year. However, it is unlikely that many settlements were reached before the local forum was established in 1989 and could be used in negotiations to encourage uncooperative businesses to settle.

160 Robert S. Moog 27. This is an excellent example of what Dakolias (2000) means by the role civil society can play in enhancing access to justice. 28. Some characteristics of the Chandigarh organization may provide a model for others to follow: • Decentralization: The city has been divided into sectors, each sector headed up by an appointed representative of the group called a convenor. • Status of the officers: Many are retired, some from the military; and the chairman has a law degree. As a group, the officers appear to be well respected within the city. • Experience of the officers: Among those working at the central office, there is relatively little turnover. Of the five people interviewed, the most recent addition to the staff had been there for eight years. • Specialization: Staffers at the central office specialize in different types of consumer disputes, which enables them to develop expertise and working relationships with repeat respondents. • Public relations: Among the strategies used to publicize the organization are consumer melas (fairs), periodic workshops, the convenor system, and flyers. 29. Sternlight (2000) suggests that the term alternative dispute resolution may have outlived its usefulness. She argues that a simple dichotomy between litigation and the “other”—that is, ADR— oversimplifies a complex situation and establishes a “false barricade.” All forms of dispute resolution, she insists, should be seen as part of a larger whole, with the practical effect of lawyers’ thinking of themselves as problem solvers choosing from a diverse menu of dispute resolution possibilities. 30. The president of the Delhi State Consumer Dispute Redressal Forum found this to be one of the problems with the forums. He complained that staff members in Delhi were drawn from the Department of Civil Supplies and therefore were not trained in the functioning of courts, a lack of training reflected in the quality of their work. Adding to the problem with the quality of work, he continued, is the fact that the presidents of individual forums have no disciplinary control over their staff. And there is a general impression that most staffers want to return to a post in their home department (CCC 1997–1998). 31. CPA 2002 has changed this: now consumer forums and commissions have the power to issue interim orders in those situations where immediate relief is deemed necessary. The downside is the delay interim orders may add to the system as is the case in the formal courts. 32. Both of these cases were heard in consumer forums. The dry cleaners case, Dhashmesh Dry Cleaners and Dyers v. Geethanjali Nair, was cited in VOICE (2000); the Timex watch case, Shri K.K. Das v. M/s. Titan Industries Ltd., was cited in CCC (1997–1998). 33. Interview with the editor of CAG Reports (Chennai, October 2000). 34. This was confirmed in the VOICE study of medical negligence cases (Misra 2000, 23). 35. The numbers were taken from the NCDRC Web site (ncdrc.nic.in/) on August 29, 2002, and were current through December 31, 2001, for the national commission. For the state commissions, the reporting dates ranged from March 31, 2000,

Democratization of Justice 161 for Nagaland to December 31, 2001, for most other states and union territories. For the district figures, the reporting dates ranged from March 31, 1999, for Jammu and Kashmir to December 31, 2001, for most other states and union territories. These figures are more recent and therefore larger than the ones cited earlier. 36. There is no breakdown of original filings (versus appeals) at the state and national levels. However, because of the high-rupee barriers at these levels, we can assume that the numbers are relatively small and that many of them would have been filed in court absent the option of the consumer commissions. 37. I could not find an annual breakdown on filings, which prevented any attempt to discern patterns in filings over time. 38. According to Misra (2000), certain consumers remain largely shut out of the process. In his study of medical negligence cases, the data indicated that access to the forums was restricted to a great extent to those with a “fixed source of income” (21). 39. Getting out the word on businesses that repeatedly take advantage of consumers is another task consumer advocacy groups can handle effectively. 40. In this instance most complainants would be one-shotters. The concept of one-shotters and repeat players is borrowed from Galanter (1974). 41. This concern is not unique to India. See, for example, Podgers (1994) and Weinstein (1996). 42. A recent estimate placed the number of cases pending in the Indian courts at 25 million and suggested that at the current rate of disposal, if no new cases were filed, it would take 324 years to clear the backlog (In India 2000) 43. Unfortunately, no data on length of time to resolution could be found for cases filed in the civil courts. However, to provide a frame of reference, there are data from the Ministry of Law, Justice and Company Affairs on the length of time cases have been pending. At the end of 1998 there were 6,779,034 civil cases pending nationwide in the district and subordinate courts. Of these, 2,516,129 (37.1 percent) were pending for less than one year; 2,194,876 (32.4 percent), for one to three years; and 2,068,029 (30.5 percent), for more than three years (Debroy and Hazra 2002).

References Ahmad, Farooq. 1999. Consumer protection in India. New Delhi: APH. Blair, Harry, and Gary Hansen. 1994. Weighing in on the scales of justice: Strategic approaches for donor-supported rule of law programs. USAID Program and Operations Assessment Report no. 7. Washington, D.C.: USAID. Available at www.usaid .gov/democracy/techpubs/weighingin.pdf (February 17, 2003). Brown, Scott, Christine Cervenak, and David Fairman. 1998. Alternative dispute resolution practitioners’ guide. USAID Technical Publication Series. Washington, D.C.: USAID. Carothers, Thomas. 1998. Rule of law revival. Foreign Affairs 77: 95 –106. ———. 1999. Aiding democracy abroad: The learning curve. Washington, D.C.: Carnegie Endowment for International Peace.

162 Robert S. Moog Central Consumer Protection Council (CCPC). 2000. Proceedings of the XXth meeting. November 28. New Delhi. Chodosh, Hiram E., Stephen Mayo, A. M. Ahmadi, and Abhishek M. Singhvi. 1997–1998. Indian civil justice system reform: Limitation and preservation of the adversarial process. New York University Journal of International Law and Politics 30: 1–78. Citizen, Consumer and Civic Action Group (CAG). 1999. CAG Reports, August– September. Chennai. Civil Justice Committee, Government of India. 1925. Civil Justice Committee report, 1924 –25 (Rankin Committee Report). Calcutta. Cohn, Bernard. 1965. Anthropological notes on disputes and law in India. American Anthropologist 67, no. 6, part 2. Consumer Coordination Council (CCC). 1997–1998. Legal outreach: State of the consumer courts, 1, various issues. Consumers Forum Chandigarh. 2000a. Annual 2000. Chandigarh. ———. 2000b. A report on Media Workshop on Citizens’ Charter. September 23. Chandigarh. Dakolias, Maria. 2000. Legal and judicial development: The role of civil society in the reform process. Fordham International Law Journal 24: 26 –55. Debroy, Bibek, and Arnab Kumar Hazra. 2002. On file with the author. Duplicated. Galanter, Marc. 1968 –1969. The study of the Indian legal profession. Law & Society Review 3: 201–17. ———. 1974. Why the “haves” come out ahead: Speculations on the limits of legal change. Law & Society Review 9: 95 –160. Garth, Bryant G. 2001. Rethinking the processes and criteria for success. In Comprehensive legal and judicial development (11–28), edited by Rudolph V. Van Puymbroeck. Washington, D.C.: World Bank. In India the wheels of justice hardly move. 2000. New York Times, June 1, A1, A4. Interview with the editor of CAG Reports. 2000. October. Chennai. Kakalik, James, T. Dunworth, L. Hill, D. McCaffrey, M. Oshiro, N. Pace, and M. Vaiana. 1996. Just, speedy and inexpensive? An evaluation of judicial case management under the CJRA. (Research Brief ). Institute for Civil Justice, Rand. Kassebaum, Gene. 1989. ADR in India: The lok adalat as an alternative to court litigation of personal injury and criminal cases in South India. Working Paper Series, Program on Conflict Resolution, University of Hawaii at Manoa. Kidder, Robert. 1974 –1975. Formal litigation and professional insecurity: Legal entrepreneurship in South India. Law & Society Review 9: 11–37. Menkel-Meadow, Carrie. 1991. Pursuing settlement in an adversary culture: A tale of innovation co-opted or “The law of ADR.” Florida State University Law Review 19: 1–46. ———. 1999. Do the “haves” come out ahead in alternative judicial systems? Repeat players in ADR. Ohio State Journal on Dispute Resolution 15: 19 – 61. Meschievitz, Catherine S., and Marc Galanter. 1982. In search of nyaya panchayats: The politics of a moribund institution. In The politics of informal justice: Comparative studies (47–77), edited by Richard Abel. New York: Academic Press.

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Messick, Richard E. 1999. Judicial reform and economic development: A survey of the issues. World Bank Research Observer, February. Ministry of Law and Justice, Government of India. 1978. Law Commission of India, 77th report. New Delhi. Ministry of Law, Government of India. 1956. Law Commission of India, 14th report. New Delhi. Misra, Bejon. 2000. A study on the regulatory framework for consumer redress in the health care sector in India. New Delhi: VOICE. Moog, Robert. 1991. Conflict and compromise: The politics of lok adalats in Varanasi District. Law & Society Review 25: 545 – 69. ———. 1997. Whose interests are supreme? Organizational politics in the civil courts in India. Ann Arbor, Mich.: Association for Asian Studies. Morrison, Charles. 1972. Kinship in professional relations: A study of North Indian District lawyers. Comparative Studies in Society in History 14: 100 –25. National Consumer Dispute Redressal Commission (NCDRC). 2000. Minutes of the Conference of presidents of state commissions, secretaries in charge of consumer affairs in the state governments, UTs and registrars of the state commissions. February. New Delhi. Available at ncdrc.nic.in/ (August 29, 2002). Podgers, James. 1994. Chasing the ideal. ABA Journal 80: 56. Reducing court delays: Five lessons from the United States. 1999. PREM Notes no. 34. Washington, D.C.: World Bank. Sabatino, Jack M. 1998. ADR as “litigation lite”: Procedural and evidentiary norms embedded within alternative dispute resolution. Emory Law Journal 47: 1289 – 1349. Saraf, D. N. 1990. Law of consumer protection in India. Bombay: Tripathi. Singh, Gurjeet. 1993. Business self-regulation and consumer protection in India: A critique. Journal of Consumer Policy 16: 1–33. Sternlight, Jean. 2000. Is binding arbitration a form of ADR? An argument that the term “ADR” has begun to outlive its usefulness. Journal of Dispute Resolution, 97– 111. Tamil Nadu, Government of. 1989. Administration report of the civil court statistics for the year 1985. Madras. Voluntary Organization in Interest of Consumer Education (VOICE). 2000. Consumer Voice 1, no. 6 (September–October). Weinstein, Jack. 1996. Some benefits and risks of privatization of justice through ADR. Ohio State Journal on Dispute Resolution 11: 241–95. Whitson, Sarah Leah. 1992. “Neither fish, nor flesh, nor good red herring.” Lok adalats: An experiment in informal dispute resolution in India. Hastings International and Comparative Law Review 15: 391–445.

ch apter

Empirical Research into the Chinese Judicial System

5

donald c. clarke

the last few years have seen a proliferation of programs by Western states

and international agencies designed, in broad terms, to promote reforms in the Chinese judicial system. Many of these programs have been related to China’s imminent entry into the World Trade Organization (WTO). The European Union, for example, launched a WTO-related legal assistance program in March 2000. Australia has been operating a graduate certificate training program for Chinese officials selected by the Ministry of Foreign Trade and Economic Cooperation (MOFTEC) at the University of Adelaide for several years. Germany has an advisory project in commercial law with the National People’s Congress that relates to WTO standards and regulations.1 In addition, it has an extensive training program with MOFTEC’s Treaties and Law Department to provide advice and shorter-term training to officials at MOFTEC and its local-government counterparts, as well as to state-owned enterprise legal departments. The Germans also have been involved in training Chinese judges. Canada conducted a now-completed multiyear project training Chinese officials in WTO terminology and processes to help prepare them for bilateral and multilateral accession negotiations. Other WTO-related projects include work with the Ministry of Information Industry on developing an Internet policy framework, and an industrial and trade policy initiative in the automotive sector. Canada also is working with the Ministry of Agriculture and the State Development Planning Commission (SDPC) on an inventory of national and subnational agricultural laws, regulations, and policies that are inconsistent with WTO disciplines. Although the U.S. government has until recently been conspicuously absent from the list of countries engaging in law-related projects, private foundations have been involved in projects of various kinds (see DeLisle 1999).2

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The Ford Foundation, for example, through its funding of the Committee on Legal Education Exchange with China, sponsored the legal education in the United States of numerous Chinese scholars in the 1980s and 1990s. In the early 1990s, the foundation became involved with legal-aid and publicinterest law programs and recently has supported WTO-related projects.3 One of the main components of its law-related work in China has been its judicial reform initiative, which consists of legal research, trial reforms, training, and professionalization.4 This list of projects is undoubtedly incomplete, but it does show that there is a great deal of interest and activity on the part of international funding agencies in projects designed to enhance the quality of China’s legal system. What is not clear, however, is whether there has been systematic thinking about the goals of these and other projects, whether those goals are appropriate, and indeed whether their achievement can be ascertained in some measurable way. This paper is an attempt to think about what we know, what we might want to know, and what we can know about China’s judicial system broadly defined. I say “broadly defined” because one of the pitfalls of legal-reform projects is defining the object of reform too narrowly on the basis of assumptions that would be better seen as hypotheses needing proof. For example, reform efforts directed at courts have as their unstated premise the notion that courts are important in the Chinese legal system; indeed, government reform efforts directed at the legal system have as their unstated premise the notion that the legal system is important in the Chinese polity. These propositions might or might not be true; and even if they are not true, a decision might be made to pursue the project in any case. But it is important at least to examine them in order to avoid spending resources on an effort of only marginal importance while neglecting areas where a much greater return might be expected.

Sources of Data on the Chinese Legal System What we already know, in the form of reliable data, about the Chinese legal system is not much.5 Useful data are generally not available, and the available data are not very useful. This is not necessarily because Chinese and foreign scholars are not interested in empirical data or field research. Chenguang Wang (1998) has published an interesting article on court efficiency, but his comparison of the United States and China shows only how unsatisfactory the available data are on China. Weifang He (1998) has shown a consistent interest in the actual operation of China’s judicial institutions, and the Ford Foundation in the mid-1990s sponsored field research into the operation of China’s court system in the countryside.6 But that research was

166 Donald C. Clarke not intended to yield—and did not yield—hard statistics about the judicial system. A prime source of data on the judicial system is the annual China Law Yearbook (CLY ) (Zhongguo Falü Nianjian). Although the CLY is not officially published by a government organization such as the Supreme People’s Court (SPC) or the National People’s Congress (NPC), it shares editors with a number of official law-related bodies and can be considered authoritative. The CLY publishes several tables of statistics about the judicial system, but for the most part the statistics relate only to the numbers and types of cases handled by various institutions such as the courts, the procuracy, and the police. The CLY provides no systematic information on personnel and finances.7 Other yearbooks—general, topical, and local— can be useful sources of statistics.8 The Yearbook of People’s Courts (Renmin Fayuan Nianjian) reported information about courts and the Chinese legal system during its brief life span, but it has not been published since 1991. From time to time, various statistics can be gleaned from official speeches and reports. The presidents of the SPC and the Supreme People’s Procuracy report on the work of their respective institutions to the annual meetings of the NPC. Like the CLY, these reports typically present large quantities of statistics, but not many of them are helpful. The SPC report typically indicates the number of cases of various kinds handled by the courts, and the percentage change from the previous year. Although these data might be useful for certain limited purposes, as we show below, they tell us much less than we think. Academic articles as well as newspaper reports often contain snippets of measurable data about the institutions and personnel of the judicial system, but they rarely cite the sources of their information.9 My own inquiries of Chinese colleagues reveal that in many cases the sources of information for Chinese academics are no better than those available to Western scholars.10 Although occasionally numbers show up that appear to be hard data, their provenance is difficult to ascertain, and it is not always clear that the author is using them appropriately. For example, Xiaobin Li (1998, 53) asserts that in 1997 there were 270,000 “judges” ( faguan) in the court system, and that they completed hearings of an average of twenty-one cases per person that year. However, other sources make it clear that Li is really talking about all officials in the courts with cadre status, including, for example, court police ( fajing), for whom other authors cite figures of 250,000 for 1997 (Tan 2001) and 280,000 for 1998 (Zhang and Wu 2000, 56). Had Li counted judges at the more likely number of 170,000 (Tan 2001), he would have arrived at an average of thirty-three cases per judge.

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The best sources for these occasional pieces of information, in addition to the official gazettes of the SPC and the Supreme People’s Procuracy, probably are the journal People’s Judicature (Renmin Sifa) and the newspaper People’s Court News (Renmin Fayuan Bao). Both are published under the auspices of the courts and have much less of a theoretical bent than the academic journals. Some local courts, such as the Shandong Higher-Level People’s Court and the Haidian Basic-Level People’s Court in Beijing, publish their own journals. These can be good sources for insight into the actual workings of the judicial system, although they have no better grasp of the national picture than do other sources. There are a number of case collections, of which the most prominent, published by the People’s Court Press, is an annual series called the Selected Important Trial Cases of China (Zhongguo Shenpan Anli Yaolan). The press also issues a series titled Selected Cases from People’s Courts (Renmin Fayuan Anli Xuan). The difficulty with these collections as sources of data is that the cases are not chosen randomly, and so cannot be used to make descriptive inferences about a larger population of cases.11 Unfortunately, we do not yet have good information on the process by which the cases come to the attention of the editors and are then selected. Finally, of course, one important source of data is original research. For all scholars, foreign and Chinese (who might be thought to have a home court advantage), obtaining valuable and representative data is very difficult.12 But it is not impossible, as Peerenboom’s (2001b) study on the enforcement by Chinese courts of arbitration awards shows. Survey research has also been conducted in the area generally described by the term “legal culture,” 13 although no conclusions about changes in attitudes can be drawn from a survey of attitudes at a given point in time. The operation of the administrative law system has been of particular interest to fieldwork-oriented Chinese scholars, and at least two interesting collections of studies have appeared ( Jiang 1998; Ying and Yuan 2001). By piecing together information from all of these sources, Chinese and foreign scholars have been able to assemble a picture of certain aspects of the Chinese legal system. That picture is by no means complete. But fleshing it out requires a great deal of thought about what information needs to be gathered and how it can be gathered effectively.

Empirical Research: The Issues The first question is Does it make sense to look at China’s judicial system at all, even broadly defined? Of course no research into a particular institution or set of institutions makes sense without an animating purpose, so this question

168 Donald C. Clarke cannot be answered in the abstract. It is worth considering, however, because in many cases the purpose behind the research may not be served by an investigation into China’s judicial institutions. Suppose, for example, that the purpose of our research is to learn about the institutions that make final decisions about the rules governing relations between the central and local governments in China. If we simply apply an American model, we would naturally investigate Chinese judicial institutions. But in China, that investigation would yield nothing of value relating to the purpose of the inquiry. Although this example might seem obvious, there are other cases in which the inapplicability of the basic assumptions will be far less obvious. Assuming, however, that the legal system, broadly defined, is indeed the appropriate subject of inquiry, the next question is Which institutions in the legal system should be studied? Here the possibilities of misapplying a foreign model are even greater. In particular, it is highly tempting for those with Western (and especially common law) legal training to assume that courts are the appropriate focus of a study of legal institutions. Courts, after all, produce the opinions that we study in law school, and in common law jurisdictions in particular they are very powerful. It is impossible to provide a full account of a Western legal system without devoting substantial space to the courts. On the other hand, a book about the Chinese legal system with the chapter on the courts torn out would still be a very useful book. Indeed, until quite recently, that chapter would have been quite short and hardly missed at all.14 Thus, a full understanding of the important aspects of the Chinese legal system must not stop with an empirical investigation of the functioning of courts. As one Chinese academic remarked to me, “Law’s empire has many capitals.” 15 In addition to the courts, there are a number of other legal institutions in China that warrant investigation but tend to be overlooked. the procuracy The Supreme People’s Procuracy (Zuigao Renmin Jianchayuan) is formally a coequal branch of government with the Supreme People’s Court, the State Council, and the Military Affairs Commission.16 Its head, like the heads of the other branches, is appointed directly by the NPC. Based on the Soviet procuracy, its main function is the investigation of crimes committed by state officials in the course of their duties and the prosecution of most criminal cases, but it has other responsibilities as well, including the supervision of the legality of government work in general and of the activities of officials in other legal institutions (such as the police, the prisons, and the courts).17 With a few exceptions,18 neither Western nor Chinese legal scholars have studied the procuracy extensively, presumably because of customary ideas

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about the subject matter of legal scholarship. Yet the procuracy may well have an important role in the Chinese legal system, one that is as important as that of the courts.19 This seems especially likely given the very high rates of convictions in criminal cases; evidently important determinations are being made before cases ever get to the courts. legal affairs offices Another institution worth study is the legal affairs office ( fazhi bangongshi) set up at each level of local government. These offices are the counterparts of the State Council’s Legal Affairs Office, but they seem to play a somewhat different role. The State Council, under the premier, manages the day-to-day functioning of China’s central government—it operates as the executive branch of the government. The Legal Affairs Office is charged with overseeing the drafting of laws for which the State Council is responsible. Those laws include bills destined for passage by the NPC as well as rules the State Council or its ministries have authority to promulgate themselves.20 According to one group of academics with whom I spoke (Interview 2001), local legal affairs offices are often delegated the task of deciding administrative appeals (xingzheng fuyi), and their personnel have a greater level of legal sophistication than do those in other government departments. If local governments tend to delegate hearings (or the final stages of hearings) of administrative appeals to local legal affairs office, and if their personnel are relatively knowledgeable about legal matters, then it is reasonable to look on them as a quasi-judicial institution and to investigate them accordingly. By the same token, it would be worth studying the local equivalents of the National People’s Congress’s Legal Affairs Commission (Falü Gongzuo Weiyuanhui). These bodies, often (and confusingly) called legal affairs offices at the local level, apparently have a great deal of authority in setting agendas and drafting legislation (Interview 2001). legal services A crucial part of any legal system is the delivery of legal services to individuals. Yet we understand very little of how this is accomplished— or not accomplished—in China. Here, useful research should be possible because the government does not consider information about the legal profession to be especially sensitive. To paint a general picture about the accessibility of legal services and to measure meaningful changes, information is needed about fee structures, education level, number of attorneys, geographic distribution, and the types of cases handled. However, it is crucial in this type of research to understand what it is that the providers of what we assume to be legal services are actually doing before we draw conclusions about the legal system. If willing buyers are pay-

170 Donald C. Clarke ing lawyers to help them win lawsuits in court, this indicates that a court judgment in one’s favor is something of value. But if the lawyers are providing value to their clients by taking officials out to nightclubs, then a different conclusion about the legal system must be drawn. At the moment, only some very basic information about lawyers is available; and very little is known about the financial structure and internal workings of law firms. According to Gu (1999, 52), there were 80,000 full-time lawyers and 20,000 part-time lawyers in China at the end of 1998. Hongwei Shen (2000, 81) states that there were 110,000 lawyers in 2000. A key question here has to do with the qualifications of those called lawyers. Of the 110,000 lawyers Hongwei Shen found, only about 60,000 had passed the bar exam (81).21 The implication, of course, is that about 50,000 had not passed the bar exam. These people have become lawyers through other means, such as grandfathering. Moreover, by the end of 1996, only one-quarter of those with a lawyer qualification had an undergraduate degree in any subject (Weili Zhang 1997). mediation and arbitration Mediation involves the efforts of a third party (mediator) to bring the disputing parties to a voluntary agreement. In arbitration, the disputing parties choose a third party (arbitrator) and agree before the process begins that the arbitrator’s decision will be binding on them and enforceable in court. (In adjudication, of course, the parties do not have the right to reject either the decision or the decision maker.) Both mediation and arbitration deserve special attention within the Chinese legal system because of their semiofficial status. The state has established specialized institutions for mediation—people’s mediation committees (renmin tiaojie weiyuanhui ) and judicial assistants (sifa zhuliyuan)—and quite purposefully uses those institutions to inculcate state norms. Mediation merely to reach an agreement satisfactory to the parties is condemned as “unprincipled.” Moreover, there is ample evidence that mediation in China often carries a degree of coercion. Given the importance of state norms to the process and the coercion in the process, combined with the reluctance of the courts to hear minor cases, mediation in many cases seems more like adjudication—a kind of small-claims proceeding—than a form of alternative dispute resolution.22 Mediation seems to have been steadily declining in importance in recent years: the number of officially mediated disputes fell from just over 6 million to just over 5 million from 1995 to 1999 (Falü Nianjian 2000, 1226). But even the latter number is well above the number of civil cases accepted by courts—3.5 million—in the same year (1210). Arbitration is also important because of the close connection between its

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institutions and the state and its norms. This connection goes beyond the need to resort to courts for the enforcement of an arbitration award against a recalcitrant defendant. In China, arbitration awards generally are enforceable only if issued by a state-recognized arbitral body. With the exception of international arbitration, the disputing parties usually do not have the right to choose whomever they please as an arbitrator.23 And underscoring the semiofficial status of arbitration in China, state-recognized arbitral bodies can change their jurisdiction without a change in “state” law.24 Their internal rules may even purport to confer jurisdiction on the courts with respect to certain matters.25 Local arbitration commissions are closely tied to government in a number of ways: they rely on local government for their funding and for personnel.26 All of this is simply to show that it would be a mistake to be misled by the word “arbitration” into thinking that so-called arbitration institutions are not a key part of the official legal system.27 Finally, both mediation and arbitration have a direct bearing on the legal system because even where the rules do not mandate alternative dispute resolution, it appears that the courts as a matter of practice often do require that parties attempt mediation or arbitration before they accept a case for adjudication.28 the courts Although the courts seem an obvious subject for investigation in any study of a legal system, it is important to investigate the right things.29 The point of doing research on an institution is to see how the institution measures up in some respect that we think is important. We don’t gather information on the average height of judges because we doubt it affects anything courts do that we consider important—for example, delivering justice. It is crucial that we be able to justify why we are measuring the thing we are measuring. Any justification we make is going to depend on some model, explicit or implicit, of how courts ought to function and what role they ought to be playing. Therefore, if we see Chinese courts as properly functioning in the way Western courts do, we will be interested in measuring their capacity to do the things Western courts and judges do. This approach might yield results, but the results could well be of marginal importance. Perhaps Chinese courts are not designed to do, and should not do, the things Western courts do. Take a cardinal rule of the U.S. courts: the courts should be passive and should wait for parties to bring cases to them.30 The parties activate judicial machinery at their option; that is in the basic nature of a right. But courts in China are not necessarily intended to function the same way. One could see them, for example, as part of a state-building project, a means for the

172 Donald C. Clarke central government to assert its authority down to the grass roots (Su 2000b). In such a model, courts and court officials are not supposed to wait passively for cases to come before them. They have a larger, more complex role to play. We may misunderstand a key feature of courts’ functioning if we measure their activity using indices designed for institutions with a different mission.31 Any study of what the Chinese courts do, then, should include a study of the docketing (li’an) system whereby the courts decide which cases to hear. This has no parallel in common law trial courts because those courts do not get to decide: they must take all of the cases that come before them. Chinese courts, however, can decide, not only to refuse a case that has come before them, but also to undertake a case that has not come before them by way of a party’s complaint. In this environment, understanding something about the types of cases the courts seek out, as well as the proportion of those cases relative to other cases, could be very instructive. A second, equally important element in a study of the courts in China would be understanding the relative importance of the various activities the courts carry out. Although it is commonly said that courts exist primarily to decide disputes,32 whether this is true in China is a matter for empirical research, not a priori definitional fiat. How to weigh the different activities of courts against one another is, of course, a difficult question. Do we look at person-hours, for example? Or expenditures? But we cannot take for granted that the main purpose of courts is to resolve disputes, any more than we can assume that was the main purpose of the yamen in imperial China.33 To look solely at the dispute resolution capacity of the courts might be to overlook some other important role they play— or are wanted by some to play—in Chinese society. The future role of the courts in China is a topic of sharp debate. Many, particularly legal academics, believe that the courts should be strengthened to the point where they can be a meaningful check on government action. This opens another avenue of study: the courts’ capacity to resolve disputes may be much less important than their potential to legitimate the actions of the state. Increasingly the Chinese state refers to an ideology of legality (as opposed, for example, to an ideology of revolutionary Marxism) as a basis for its legitimacy.34 And Chinese courts, despite their low-status origins, have enjoyed an instant promotion because of their automatic inclusion in the ranks of important legal institutions.35 As their symbolic importance grows, measurements aimed at their ostensible functions become less meaningful and less useful in understanding them. Thurman Arnold (1935) argued, for example, that given the strictures of the rules of evidence, the idiosyncratic definitions of criminal responsibility, and the lack of connection between criminal sentences and social purpose, “the only function which

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the criminal trial can perform is to express currently held ideals about crime and about trials” (147–48).36 Imaginative hypotheses about the symbolic role of the courts in Chinese society might well generate consideration of data hitherto ignored. By the same token, data we might normally collect may not be helpful. Key to understanding Chinese courts, for example, is understanding that they are essentially a bureaucracy, like other bureaucracies in the Chinese government. This means they are often called on to do the kinds of tasks Chinese bureaucracies are often called on to do—for example, to help with the latest birth control campaign or tax collection drive (see Haijian He 1993). They do not occupy (except formally) a position apart from and superior to the rest of the government. Consequently, we should attempt to measure their performance using the measures we would apply to other Chinese government bureaucracies; attempts to apply measures we would apply to courts in the United States are likely to fail. Number of Personnel. Take an apparently simple statistic: the number of judges. This information is of interest because it presumably bears on the capacity of the courts to hear a certain number of cases. The number of judges can affect the number of cases heard, the time to disposition, and possibly the quality of the judgments. But in the Chinese context, the question of the number of judges becomes almost impossible to answer in a meaningful way. Because Chinese courts operate as bureaucratic offices, the relevant statistical categories in China are state cadres versus nonstate cadres, and rank within the office.37 Statistics on court personnel, then, scarce to begin with, tend to lump together—under the general term “ganjing”— everyone with the rank of state cadre, including judges, clerks, court police, and even drivers.38 Authors who cite numbers for judges are often referring to the numbers for cadres and so overstate the number of people who actually hear cases.39 The data in Table 5.1 illustrate the problem.40 Consider the data for 1997. The Falü Nianjian (1998) reported 270,000-plus “persons,” 170,000-plus of them judges ( faguan); Xiaobin Li (1998) reported 270,000 judges. By examining numbers from other sources, a general picture emerges that supports the data in the Falü Nianjian: by the end of 1997, there were 170,000 people employed in the courts who were formally eligible to hear and decide cases, and another 100,000 people with state-cadre status who performed other tasks. Those who give a higher number in any given year for “judges” are simply wrong. There are discrepancies in other categories in Table 5.1, too. For example, adjudication personnel (shenpan renyuan) are not necessarily involved in adjudication: among the staff in this category are administrative officials,

174 Donald C. Clarke ta b l e 5 . 1 Court Personnel in China, Selected Years, 1979 –1998 Year*

Number

1979

59,000 59,000 147,283

1986

1991

15,203 138,459 138,459

1992

61,675 140,000

1996 1997

250,000 170,000

1998

170,000 † 270,000 † 250,000 270,000 170,000 280,000

Category

Source

Cadres and police ( ganjing) Persons Court president; court vice president; adjudication personnel (shenpan renyuan), including assistant adjudication personnel, clerks, and execution personnel Other ganjing (cadres and police) Judges Assistant adjudication personnel (zhuli shenpan renyuan) and above (including court presidents and vice presidents) Clerks (shuji yuan) and court police Adjudication personnel (shenpan renyuan) Judges ( faguan) Adjudication personnel (shenpan renyuan)† Judges ( faguan) Persons Cadres ( ganbu) Judges ( faguan) Judges ( faguan) Cadres and police ( ganjing)

Zhang and Wu (2000, 56) Falü Nianjian (1998, 71) Falü Nianjian (1988, 883, table 2)

Falü Nianjian (1988, 883, table 2) U.S. Department of Justice (n.d.) Chenguang Wang (1998, 50)

Chenguang Wang (1998, 50) Tan (2001) Liming Wang (2000, 420) Tan (2001) Falü Nianjian (1998, 71) Tan (2001) Xiaobin Li (1998, 53) Cui and Yang (2001) Zhang and Wu (2000, 56)

*Figures are at year’s end. † Does not include clerks, court police, or other cadres.

such as court presidents and vice presidents, who generally do not hear cases, and those responsible for the execution of judgments. Xiaobin Li (1998), in his study of nine Basic-Level People’s Courts (BLPCs), found that only 44 percent of the 762 people labeled “judges” actually heard cases. Another 44 percent were the presidents, vice presidents, heads of chamber, and deputy heads of chamber, and rarely or never heard cases. The remaining 12 percent occupied positions in various court departments, such as the political work department, the secretariat, the labor union, the administrative office, the archives department, the accounting department, and the department in charge of the execution of judgments. According to Tan (2001), Higher-Level People’s Courts (HLPCs), at the province level, typically have 200 to 300 “judges,” few of whom actually hear cases. Even those who do hear cases may also be engaged in a great deal of other, unrelated work. The mobilization of court personnel by local governments to perform various public chores is a frequent source of complaint in the legal literature. According to Liming Wang (2000, 421), local govern-

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ments often enlist judges in the work of birth control, tax collecting, urban beautification, and the physical expulsion of beggars.41 The problem does not end with statistics that are overinclusive. Some of these data may be considerably underinclusive. If by “judges” we mean people who hear cases, then the numbers should include people’s assessors (renmin peishenyuan).42 In many courts, it seems that the people’s assessor system is a dead letter.43 In other courts, however, the people’s assessors have in effect become long-term employees, typically paid out of extrabudgetary funds garnered through litigation fees. The normal length of service for assessors is two years, but, according to Jiahong He (1999, 13), in some cases stretches out to ten to twenty years. If that is so, then probably the assessors are functioning in every essential respect as judges and should be counted if we are attempting to understand the number of people available to hear cases.44 Unfortunately, the recordkeeping branches of the Supreme People’s Court probably do not know how many people are working for local courts and being paid from extrabudgetary funds (Interview 2001). Again, the key distinction here is not whether an individual hears cases or not, but whether the individual is a cadre or a worker.45 Because clerks and judicial police are cadres, it is possible for them to be promoted within their work unit (the court), which means they can become judges (Interview 2001). In addition, those with cadre status may be pressed into service as judges when manpower is low, without being formally promoted (Liming Wang 2000; and see Xiaobin Li 1998). Because the court is a typical Chinese work unit, for a driver to become a judge is no stranger than a mailroom clerk’s rising through the ranks to become a corporate executive. These characteristics of the courts have definite implications for research. They mean, for example, that it is not enough for us to know that courts have judges; we must also determine the bureaucratic rank of judges. Xiaobin Li (1998, 53) asserted that in 1998, “the center” issued a document stating that adjudication personnel (shenpanyuan) should have the status of ke-level cadres.46 Apparently this reform has not been implemented thoroughly, or perhaps at all; according to Li, judges make less money than court police.47 In any case, bureaucratic rank of the typical officeholder can be seen as a reasonably accurate indicator of the relative importance in the Chinese polity of a particular government post, and it would tell us something useful about the courts to observe changes in the bureaucratic rank of court cadres over time, without worrying about whether they should count as judges or not. Education. As Edmund Burke (1790/1982) noted long ago, understanding the characteristics of those who staff an institution “is of ten thousand times greater consequence than all the formalities in the world” (127). Yet we know very little about the characteristics of Chinese judges. One area of

176 Donald C. Clarke interest to researchers, but as fraught with pitfalls as that of judicial numbers, is judicial education and training. Judges traditionally have not been required to have any special training or educational qualifications before coming to office. Standards for new judges were raised with the passage of the Law on Judges in 1994. And since March 2002, prospective judges, lawyers, and procurators all have been required to pass the same examination. Training of judges has typically been done on the job. In 1985, for example, the SPC established the Court Cadres Part-Time Law University (Fayuan Ganbu Yeyu Falü Daxue) to run training courses, and in 1988 the SPC, together with the State Education Commission, created the China Senior Judges Training Center (Zhongguo Gaoji Faguan Peixun Zhongxin) to conduct short full-time courses for judges. In 1997, the SPC established the National Judges Institute (Guojia Faguan Xueyuan) to be in charge of judges’ training.48 The courts do not routinely publish statistics on the education of judges, and the available statistics are scattered.49 The numbers on judicial education that do exist, like the numbers on judicial personnel, are bedeviled by the use of categories that are not relevant or clear. For example, Junru Zhao (1999, 6) states that as of 1995, 70 percent of judges had at least a junior college–level education, although not necessarily in law.50 The China Law Yearbook puts the proportion at 80 percent as of the end of 1997 (Falü Nianjian 1998, 71).51 If one thinks that a four-year undergraduate degree in law is an important qualification for judges, then this is not a helpful statistic. Yet the “junior college or above” (dazhuan yishang) category is the one most frequently used.52 Statistics for LL.B.s are hard to come by. Weili Zhang (1997) states that of 250,000 court cadres in 1997, 5.6 percent—approximately 14,000 —held bachelor’s degrees in any subject, and only 0.25 percent, or 625, held postgraduate degrees in any subject.53 Xiaobin Li (1998, 52), in his study of nine basic-level courts, found that only 3 percent of the judges had proper LL.B. degrees; a full 45 percent did not have even the equivalent of a junior college–level education in any field. These numbers are roughly in line with the estimate of a group of law professors that fewer than 10 percent of judges had proper LL.B. degrees (Interview 2001). If we could get reliable numbers on LL.B. degrees, it is still not clear what they would tell us: an “LL.B.” degree could come from a correspondence school, an institution with just provincial, not national, accreditation, or a university that established its law department solely to meet market demand and staffed it entirely with recycled faculty from the moribund Department of Marxist–Leninist Philosophy (Interview 2001). Even if we could make definitive judgments about the educational level of judges using available numbers or numbers obtained through research, it remains to be seen whether the educational level of judges is something

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worth knowing. The first problem with these numbers is common to any set of national statistics in China: they are bound to obscure important regional differences. Knowledge that might be very important in Shanghai— a judge’s ability to understand complex corporate finance issues, for example —might be trivial in Qinghai. China is such a large and diverse country that any generalizations on the basis of national statistics must be made with care because they may not reflect the reality in another part of the country. The second problem is that given the judicial environment in China, we must question the assumption that these statistics are worth knowing—that more education makes better judges. If we think of judges as officials whose job it is to extend state power into the countryside, where the great majority of China’s population still resides, it is plausible to suppose that the skills acquired in an urban law faculty may not be those best suited to the task. Indeed, the much-criticized practice of assigning demobilized army officers to the courts as judges begins to seem more reasonable (see Clarke 1996, 10). In short, an assessment of the qualifications of judges invariably involves an assumption about what judges ought to be qualified to do. It is crucial to justify that assumption. The third problem is that a judge’s education may contribute very little to a court’s decision making. As one law professor stated (Interview 2001), there are many outside influences on a judge; to get ahead in the court world, judges may have to give up what they have learned. This, of course, could be true in many systems. The point is simply that one must be alert to the social and political environment in which judges operate before assigning particular significance to this or any other set of facts. Finances. Again, given the bureaucratic nature of the courts in China, an important consideration—and one that is quantifiable—is funding. There are at least three subjects of interest here: how courts are funded, how they spend their funds, and the incentives facing courts and judges. We know little about any of these subjects.54 Of course, the funding the government allocates to the courts in comparison to other institutions might indicate the relative importance of the courts. But it does not speak to the funds available to the courts from all sources: a great deal of the courts’ income comes not from budget allocations but from litigation fees.55 How courts spend their discretionary funds is a key indicator of what their leading personnel think is important, a better indicator of court priorities than the numbers of cases in various areas. Sheer numbers of cases alone may not be a reliable indicator of anything: courts and judges are rated for performance based on the number of cases processed, and so have an incentive to inflate those numbers.56 We could look at expenditures per chamber, but this might skew the statistics in favor of the chambers with greater ac-

178 Donald C. Clarke cess to litigation fees (for example, the civil chambers). Or we could look at the number of judges assigned to each chamber. This might be a good measure because the court president, who does the assigning, probably knows where judges are needed, whatever the nominal number of cases. But here, again, we have the problem of deciding who counts as a judge. One of the most interesting subjects for research—to the best of my knowledge, still terra incognita in terms of published systematic studies—has to do with the incentives facing individual judges. To understand judges’ incentives is to understand a very important element in the functioning of the courts in China. For example, consider the current practice whereby lower courts, before they make a decision, communicate with their superior court to obtain that court’s views on the matter in question. This practice, called qingshi (“asking for instructions”) or shenpan huibao (“reporting during adjudication”), has been heavily criticized.57 Concerns center around the legality of the practice—it has no basis in any laws or regulations governing court procedures—and its impact on appeals: the practice effectively strips losing parties of their right to appeal because the matter has already been judged by the superior court. The practice is unlikely to stop, however, as long as being reversed on appeal is considered in all cases to be a failure at work and is punished as such.58 In one court, if just two of a judge’s cases are reversed on appeal or sent back for retrial in a year, the judge cannot be named as “advanced” that year (Interview 2001).59 In another court, the responsible judge is fined 50 yuan for each case reversed on appeal and 100 yuan for each case sent back for retrial (Zhu 1999, 51).60 With incentives like these, it is hardly surprising that judges want to know what the superior court thinks before they make their decision. According to Yuan and Qi (1996, 99), in the first half of 1996 the Nanjing Intermediate-Level People’s Court made judgments in a total of 1,514 cases; of those, in just 2 cases was the judgment changed on appeal or the case sent back for retrial. Caseloads. National case statistics are easy to come by: they are published annually in the China Law Yearbook and in other places. But what can they tell us? A number of features of the way Chinese courts operate make it risky to draw conclusions from caseload numbers.61 First, the courts and their personnel generally are rated on the basis of objective numbers, not on the basis of subjective evaluations of the quality of their work. As a result, courts and judges do what they can to maximize the numbers for which they are rewarded and to minimize the numbers for which they are punished. Because one important index of accomplishment is the number of cases processed, courts and judges have an incentive to maximize the number of cases they take on and see through to final judgment and execution. To raise their case count, then, judges may insist that a

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single case brought by several plaintiffs be disaggregated into several complaints; after the petitions are accepted, the cases are consolidated again for trial (Interview 2001). Second, the courts historically have relied on litigation fees for the bulk of their funding.62 This creates an incentive, given competing demands on time and resources, to concentrate on cases that bring in high fees and to give short shrift to those that do not. Where a case involves an object of commercial value, courts can set litigation fees at a percentage of the amount in controversy. Therefore, the courts naturally favor commercial cases over, say, administrative cases or divorce cases. As a result, an observed increase in the proportion of commercial cases on a court’s docket may mean that commercial disputes have become more prevalent. It may also mean simply that the government has cut the court’s budget, forcing the court to earn more money through litigation fees.63 Case statistics can also be used in other ways. Suli Zhu (Su 2000a), for example, has attempted to show that the popular image of BLPC judges as ignorant and overbearing ex-army officers is incorrect, and that such judges are in fact doing a reasonably good job. He supports his argument by pointing to a decline in appeals from first-instance judgments over time, a trend that he interprets as reflecting an increase in the quality of the courts. But the conclusion depends crucially on the premise that failure to appeal indicates satisfaction with the fairness and correctness of the judgment (12)—a premise whose soundness seems open to question. We can imagine many reasons for failing to appeal a judgment that are not related to a belief that the judgment is fair, among them the cost and benefits of appeal and the likelihood of success (see Yi 2000, 751). People’s Tribunals. In any general study of the court system in China, the chief focus must be on the Basic-Level People’s Courts. These are the courts with which the vast majority of complainants have contact. And in studying the BLPCs, it is essential to look at the People’s Tribunals (PTs; renmin fating). PTs are branches of BLPCs staffed by BLPC judges. With the approval of the provincial-level court for the jurisdiction, a BLPC may establish a PT in an outlying area to make it easier for parties from that area to come to court.64 At present, PTs can hear civil cases, certain minor criminal cases, and, if the BLPC so allows, commercial cases. Presumably, the BLPC could take a case out of the hands of a PT and hear the case at its own seat if it considered the case to be sufficiently important. The decision of a PT is the decision of the BLPC: appeals are to the court above the BLPC, not to the BLPC.65 In the 1990s, PTs seemed to fall somewhat out of favor with policymakers, and their number dropped significantly—from about 18,500 in 1991

180 Donald C. Clarke (Clarke 1996, 7– 8) to about 12,000 at the end of 1999 (Falü Nianjian 2000, 135). A 1999 court reform plan called for all PTs in municipal districts (qu) to be eliminated and for others in economically developed areas to be merged.66 Despite the decline in their numbers, PTs remain significant. Of the 5.7 million first-instance cases adjudicated by the courts in 1999, most of which would have been heard by BLPCs, some 2 million were heard by PTs (Falü Nianjian 2000, 133). Xiaobin Li (1998, 52) reported that the nine BLPCs he studied had established sixty-five PTs. The tribunals were staffed by 37 percent of the BLPCs’ total judicial personnel, even though they heard 67 percent of the cases. According to Zhang and Wu (2000, 70), there were 75,553 cadres and police (the broadest category—ganjing) in PTs in 1998, of a total of 280,000 in all courts (see Table 5.1). Clearly the PT is a significant institution.

Conclusion One of the primary obstacles to the study of China’s judicial system is the fact that the government treats so much of the relevant information as sensitive. Consequently, even seemingly innocuous information—such as the number of judges, their education, and their pay structure— can be very difficult to obtain. And the problem affects Chinese and non-Chinese scholars alike: all are usually relegated to essentially the same sources. Where Chinese scholars have an advantage, however, is in fieldwork in the judicial system. Chinese officials are far more willing to speak frankly to a fellow Chinese, particularly from a prestigious university, than to a foreign researcher.67 Fieldwork can yield interesting and original results, but unfortunately it typically does not yield representative statistics unless great care is taken in selecting the objects of study (Manion 1994). One key to understanding China’s legal institutions lies in knowing more about the people who staff them. Much could be learned from a study of the career path, education, and income of judges and procurators. Those data could also serve as a proxy for a measure of the social and political importance of courts: if they show that the courts increasingly are staffed by highstatus persons who have good alternative career opportunities, we would have evidence that their political status—and by extension, that of the courts —is rising. Another promising area of research is the subject of judicial incentives. Where judicial independence enjoys significant protections— consider the federal judiciary in the United States, for example— decision making has proved difficult to model.68 But it may not be as difficult in China, where financial and other incentives within the courts are common. The difficulty

Empirical Research into the Chinese Judicial System 181

here lies in the lack of uniformity in the courts, a problem that could be overcome by collecting data on a sufficiently large random sample. An important finding here is that information about China’s judicial system, even in the form of reliable and representative statistics, is not always what it seems. In other words, without a deeper understanding of the functioning of China’s courts and other legal institutions, it is very easy to look for the wrong type of information and to misinterpret the information we have. Like the drunk in the joke who looked for his lost car keys under the streetlamp because the light was better there, we may be tempted to overvalue those elements of China’s judicial system for which we have data simply because the data are available. Thus, a priority in an empirical research agenda at this stage of our understanding should be further study of the actual functioning of China’s various legal institutions so that we have a better idea of what questions to ask.

Notes 1. The project’s Web site address is www.gtz_commercial_laws.org.cn. 2. Stephenson (2000) is a fine study of U.S. government involvement in rule-oflaw and similar programs in China. Executive branch initiatives began in 1994 with President Clinton’s announcement that the United States would sponsor programs to promote civil society, including the rule of law, in China. In 1996, the administration created the post of Special Coordinator for Global Rule of Law within the State Department, and followed that in 1999 with the creation of the post of Coordinator for China Rule of Law Programs. Nevertheless, strong congressional opposition to cooperative programs with the Chinese government meant that significant funding for China-related activities was not available. In October 2000, Congress finally authorized the Departments of Commerce, Labor, and State respectively to establish rule-of-law training programs in China (22 U.S.C. §6981); and in the following month Congress authorized grants to nongovernmental organizations outside China involved in fostering democracy and the rule of law in China (Foreign Operations, Export Financing, and Related Programs Appropriations, 2001, Public Law 106 –429, appendix A, §526). Through the efforts of Senator Arlen Specter of Pennsylvania, $1.75 million was granted to Temple Law School to support its LL.M. program in Beijing (Congressional Record [ June 22, 2000], 146, §5621 [statements of Senator Specter]); see also Lin (2001). 3. Wuhan University’s Center for the Protection of the Rights of Disadvantaged Citizens was established in 1992 with financial support from the Ford Foundation (Liebman 1999). In June 2000, the foundation supported a ten-day workshop for twenty midlevel Chinese officials at Georgetown University Law Center. During the eighteen months following the workshop, the foundation sponsored a series of

182 Donald C. Clarke additional seminars in China on legal system changes implicit in WTO membership. These in-China programs emphasized judicial review of administrative decisions and the establishment of administrative hearing processes. 4. See generally Peerenboom (2001a), a study commissioned by the Ford Foundation. 5. The discussion here regarding the lack of data should be qualified by noting the recent appearance of a major two-volume collection of historical statistics on the courts in China, covering the half-century from 1949 through 1998 (SPC Research Department 2000a, 2000b). Interestingly, although the volume covering civil law is available to the general public, the volume covering criminal law is for circulation among court personnel only (personal communication, Supreme People’s Court Bookstore, Beijing). 6. Some of the results of this project have been published by Su (2000b) and Xiaoli Zhao (2000). Su Li is the nom de plume of Suli Zhu, the dean of Beijing University’s Faculty of Law. (For consistency and ease of reference, all Chinese names in this chapter are written with the surname last.) 7. The occasional exception: tables showing numbers of procurators (see, e.g., Falü Nianjian 1998, table 6; and 2000, table 2) and their participation in training programs (see, e.g., Falü Nianjian 1999, table 11; and 2000, table 3). 8. For general yearbooks, see, for example, the Yearbook of the People’s Republic of China (Zhonghua Renmin Gongheguo Nianjian), the Statistical Yearbook of China (Zhongguo Tongji Nianjian), the Yearbook of China’s Economy (Zhongguo Jingji Nianjian), and Social Statistics of China (Zhongguo Shehui Tongji Nianjian). For examples of topical yearbooks, see the China Securities Industry Yearbook (Zhongguo Zhengquan Ye Nianjian), the China Yearbook on the Non-State-Owned Economy (Zhongguo Fei Guoyou Jingji Nianjian), the China Yearbook of Educational Statistics (Zhongguo Jiaoyu Tongji Nianjian), the similarly named China Yearbook of Statistics in Education (Zhongguo Jiaoyu Shiye Tongji Nianjian), and the China Labor Statistics Yearbook (Zhongguo Laodong Tongji Nianjian). The last contains statistics on labor arbitration cases, for example. The Beijing Yearbook (Beijing Nianjian) and the Guangdong Yearbook (Guangdong Nianjian) are local yearbooks. On the whole, local yearbooks are not as helpful as general or topical yearbooks, and their legal coverage tends to focus on criminal matters. 9. In many cases, the authors are simply repeating an unattributed number they picked up somewhere else, a number that with frequent repetition acquires the patina of authority. 10. In Weifang He’s (1998) study of the Chinese judiciary, he attempts to derive reliable numbers for judicial personnel by piecing together bits and pieces of information from journal articles, leaders’ speeches, and newspaper reports. 11. See, for example, Pei (1997), who uses percentages derived from an unrepresentative sample of administrative cases to describe general types of plaintiffs and remedies. Manion (1994) argues that under appropriate conditions, valid inferences about the relationships among variables can be drawn from unrepresentative samples.

Empirical Research into the Chinese Judicial System 183 12. Manion (1994), for example, speaks to the problem in China: “For most researchers, obtaining a nation-wide probability sample of the Chinese population is both impossible and impractical” (741). 13. See, for example, Kato¯ and Xiao (1999) and Potter (1994). Methodological insight might also be gained by examining studies of legal culture in other culturally Chinese jurisdictions, such as Hong Kong (Hsu 1992) and Taiwan (Potter 1995). 14. O’Brien (1996), for example, writes about the strategic use by rural protesters of laws and regulations but never once mentions the courts. And that omission is neither an oversight nor a mistake. It is simply an accurate reflection of the usefulness of the courts in the eyes of rural protesters. 15. The reference is to Dworkin’s “The courts are the capitals of law’s empire” (1986, 407). 16. Jianchayuan also is translated as “procuratorate.” 17. For more on the procuracy, see Chen (1992, 124 –27); Wang and Mo (1999, 58 – 60); and especially Fu (2001). 18. Notably Ginsburgs and Stahnke (1964, 1965, 1968); Hsia and Haun (1978); and, more recently, Fu (2001). 19. I say “may” precisely because we cannot conclude one way or the other before the necessary research has been undertaken. 20. It is not always clear whether primary responsibility for legislative drafting should lie with the State Council and its Legal Affairs Office or with the NPC and its Legislative Affairs Commission (Fazhi Gongzuo Weiyuanhui). At times a political struggle may be involved. The formal functions of the Legal Affairs Office are described in Wang and Mo (1999, 13 –14). For the politics of lawmaking, see Tanner (1999), especially pages 46 –47. 21. According to Hongwei Shen, since the inception of the lawyer’s examination in 1986, more than 1 million people have applied to take the test; of those, 120,000 have passed and obtained lawyer qualifications. However, he states that only half of those (60,000) currently work as lawyers. Shen cites no source for his statistics. 22. On the coercive aspects of mediation, see generally Clarke (1991, 292 –94). On mediation in general, see Lubman (1999, 40 –70, 217–49); and Tang (1994). 23. The picture here is actually more complex than can be described in a short paragraph, and it is constantly changing. 24. In China International Engineering Consultancy Company v. Lido Hotel Beijing (1992), a Chinese court had refused to enforce an award rendered by the China International Economic and Trade Arbitration Commission (CIETAC) despite the fact that CIETAC and both parties agreed that CIETAC had jurisdiction. The court found that CIETAC could not hear cases between two domestic enterprises. CIETAC subsequently amended its rules to give itself that jurisdiction. If CIETAC was a private institution, it would not have been able to bootstrap its own authority by simply changing or clarifying a rule. In a personal communication to the author, a senior CIETAC official stated that the rule change had been approved by the Legislative Affairs Commission of the NPC, the State Council’s Legal System Bureau, and the Supreme People’s Court.

184 Donald C. Clarke 25. See, for example, the rules of the Beijing Arbitration Commission, discussed in Clarke and Davis (1999). 26. Commission staff can be considered quasi-government employees. 27. For more on arbitration in China, see generally Ha˚kansson (1999) and Sheng Chang Wang (1996). 28. For a useful comparative perspective that examines the many ways in which U.S. judges promote settlements, see Galanter (1988) and Galanter and Cahill (1994). 29. On courts in general, see Finder (2001). 30. Article III of the U.S. Constitution limits the judicial power to “Cases” and “Controversies.” In a well-known letter to President George Washington in 1793, the justices of the Supreme Court declined to issue an advisory opinion (an opinion not related to a specific case). For a study of the advisory role of courts in the early Republic, see Jay (1997). 31. See generally Xiaoli Zhao (2000, 64). 32. See, for example, Waltman (1988), who states that “courts, more than any other public body, are for the purpose of making decisions” (4), and Shetreet (1988), who declares that “the primary function of courts within any society is the resolution of disputes” (468). 33. The yamen was the office of the district magistrate, the chief official in charge of a county in imperial China. The district magistrate’s duties included adjudication, to be sure, but only as one of many. See generally Watt (1972) and Stephens (1992, 40 –43). 34. The extent to which this ideology has carried the day is a matter of dispute. Some observers believe that the ideology of legality has won a complete victory, in the sense that the government now considers it necessary at least to pay lip-service to it and to hide or deny perceived deviations from it. These arguments are not without force. But even if we accept the proposition that what people say is more important than what they do, those who proclaim the victory of the ideology of legality overlook the vast amount of extralegal activity in China carried on quite openly because its extralegal quality is not even perceived. Certain aspects of rural land use, for example, are to this day governed by Party policy, not the (apparently) applicable law. The strength of the Party is also visible in the detention and investigatory powers of Communist Party Discipline Inspection Commissions, powers that cannot be challenged via any legal means, although they clearly are not grounded in the law. See generally Fu (2001). It is presumably pursuant to these powers that former premier Ziyang Zhao was held in 1989 and remains held today; the government has never attempted to justify his detention by reference to legal or administrative proceedings. 35. Courts in China have not been powerful institutions. During the era of the planned economy, they had little role to play in resolving disputes among major economic actors. Their primary activity, outside of their role in the criminal process, was adjudicating minor civil disputes between individuals. It is not my claim that Chinese courts should be considered important legal institutions; it is my claim that people who matter in China believe the courts as they

Empirical Research into the Chinese Judicial System 185 exist in China today are the courts called for in the ideology of legality, and that they are therefore important. 36. I thank Teemu Ruskola for bringing this quotation to my attention. 37. The term “cadre” refers to a person with special official status within the Chinese political system. 38. The CLY has not provided tables about court personnel since its 1988 edition, but certain statistics can be found here and there. For example, a brief article by the Supreme People’s Court in the 1998 edition states that there were more than 280,000 people working in the courts at the end of 1997 (Falü Nianjian 1998, 71). That figure evidently includes just about everyone, because the numbers of judges, clerks, and court police are noted separately at 170,000, 50,000, and 2,000 respectively. 39. For some reason, personnel statistics on the procuracy are not considered so sensitive; or perhaps the procuracy is simply better at collecting numbers. According to Tan (2001), in 1997 there were 160,000 people who might be called “pure procurators,” in the sense that the numbers do not include clerks, judicial police, or other cadres. Tan then asserts that there were a total of 180,000 cadres in the same year—in other words, that there were 20,000 people with cadre status working in procuratorial offices other than those with the rank of procurator. Field research is needed to find out exactly what procurators do before any significance can be assigned to these numbers. 40. More numbers from 1979 through 1995, and their sources, can be found in Weifang He (1998, 13). 41. For an interesting news report along these lines, see Haijian He (1993), who reports that he could not find anyone he was looking for at a local court because they had all been dispatched to the streets to tear down unsightly advertisements touting cures for sexually transmitted diseases. 42. People’s assessors are laypeople brought in to hear cases alongside regular judges. Unlike jurors in a common law trial, whose function is supposed to be limited to fact-finding, people’s assessors function in theory like judges and have an equal vote. It is generally agreed among scholars that people’s assessors in practice have little real power. 43. “An investigation of reality shows that the system of people’s assessors has already been completely abandoned in many courts, and in fact exists in name only. This is the reality of the people’s assessor system; it is an undeniable fact” ( Jungui Shen 1999, 15). Several articles on the system of people’s assessors appear on page 4 of the June 5, 1999, issue of the Legal System Daily (Fazhi Ribao). 44. Like judges, assessors apparently are being used—inappropriately—to enforce judgments (Interview 2001). People’s assessors have the same rights and powers as judges hearing a case, except that they always must hear cases as part of a panel that includes a judge. Judges can hear cases on their own when a summary procedure is called for. 45. Liming Wang (2000, 398), for example, states that in 1997 there were 250,000 judges. But the source he cites—Hao Li (1998, 84)— clearly states that the number

186 Donald C. Clarke applies to cadres (ganbu), a much broader category that includes clerks, court police, drivers, and other nonadjudicatory personnel. The most careless Western scholar would be unlikely to confuse a category that included bailiffs with a category that included only judges; that Wang, who is by no means a careless scholar, could do so is highly suggestive of the categories that really count in the Chinese legal system. 46. “Ke” usually is translated as “section.” For our purposes it is important to know that ke-level cadres are very low on the bureaucratic totem pole, equivalent to the rank held by a township (xiang) head or the head of an administrative department of the county (xian) government. It is one rank below that held by a county head or deputy head (chu). Because there is typically one BLPC per county, the judges’ lower rank indicates very clearly their relationship to the government organs at the same administrative level. 47. But see the discussion of court finances below. 48. For more on judges’ training, see Liming Wang (2000, 447–49). 49. The SPC’s annual work reports, for example, typically do not mention judges’ educational levels, although they may note the existence of training programs. The China Yearbook of Education Statistics (Zhongguo Jiaoyu Shiye Tongji Nianjian) also says nothing about the educational levels of judicial officials, but it does have figures for those currently involved in legal education. Even those figures, however, are difficult to interpret because in many cases the relevant statistics reflect enrollment only in political-legal schools and institutes (zheng-fa yuan-xiao); they do not consider students in law faculties in comprehensive universities and colleges. Still, Weifang He (1998) makes a valiant attempt to collect statistics on judicial education from these and other sources. 50. Zhao attributes this information to the SPC but does not cite a specific source. 51. Again, we do not know if by “judges” the author means all cadres (approximately 270,000 people) or only those formally entitled to hear and decide cases (approximately 170,000 people). 52. Even this category is not especially helpful. Court officials generally obtain junior college degrees or their equivalent in one of three ways: (1) after-hours training programs arranged by the court in which they work; (2) adult education correspondence courses with regular universities; and (3) self-study followed by an examination. According to Cheng (2001, 179), the prevalence of corruption in the adult education industry makes even these numbers highly suspect as an indicator of actual education received. Moreover, the numbers apply to those who passed the relevant course even though they may not have gone beyond middle school in their regular education. 53. Figures for the procuracy are even lower: of 180,000 cadres in the procuracy, only 4 percent had an undergraduate degree and only 0.15 percent had a postgraduate degree (Weili Zhang 1997). 54. On the question of how courts are funded, a recent study by Xue and Zhang (2001) of the courts in Jiangxi Province is the most detailed and revealing I have seen. 55. In January 2002, the Ministry of Finance and the People’s Bank of China issued a joint notice (MOF and PBOC 2002) furthering the government’s stated pol-

Empirical Research into the Chinese Judicial System 187 icy of separating state agency revenues from expenditures (shou zhi liang-tiao xian). The notice provides that all fees received by the SPC and several other central government bodies are to be deemed central government financial revenues; fees received by local courts and other local government bodies are to be deemed revenues of that body’s supervisory department (zhuguan bumen), where applicable regulations so provide, and general revenues of the local government where they do not. Because local courts do not have an official supervisory department, that presumably means their fees will be included in local government revenues. The notice does not, however, state a corollary rule: that budgetary allocations to courts may not be made dependent on their fee collections. Without such a corollary rule, the provisions of the notice may have little effect on the institutional incentives facing courts. 56. See the section on caseloads that follows. 57. See, for example, Zhuqiao Zhou (1991) and Liming Wang (2000, 439); but see Zhou and Liu (1993), who support the practice. 58. The issue of punishing judges for “wrong” decisions is discussed by Liming Wang (2000, 437–41). Many, including Liming Wang, support the practice of punishing judges for wrong decisions on the grounds that judicial corruption has made it necessary; others, among them Chenguang Wang (1998), oppose it on the grounds that legal indeterminacy makes it impossible to speak of a single right answer to legal questions. 59. Being named as advanced is an important part of an official’s professional record and affects the individual’s chance for promotion. 60. The monthly salary of a BLPC judge in Beijing might be in the neighborhood of 3,000 yuan. 61. For an examination of caseloads, see Chapter 6 in this volume. 62. Change is in the wind, though. See note 55. 63. Weng (1997, 28) describes how in 1997 his local court established a formal standard for fee collection (with no legal basis): in addition to regular fees, it began collecting “litigation activity fees” (susong huodong fei ) of up to—in fact, always— 50 percent of the amount of the regular fees. The law professors I interviewed in 2001 told of cases in which courts had collected money owed by a defendant to a plaintiff and held on to it for an extended period, lending it out at interest before passing it on to the plaintiff. One professor referred to the courts as “People’s Courts, Inc.” (Renmin Fayuan Youxian Gongsi ). 64. On PTs in general, see Clarke (1996, 7). The most recent rules governing PTs were issued by the SPC in August 1999: “Guanyu Renmin Fating Ruogan Wenti de Guiding” (Rules on Several Issues Relating to People’s Tribunals). Relevant parts of the rules are discussed in the text. 65. “Zhonghua Renmin Gongheguo Renmin Fayuan Zuzhi Fa” (Organic Law of the People’s Courts of the People’s Republic of China), Article 20. 66. Supreme People’s Court, “Renmin Fayuan Wu-Nian Gaige Gangyao” (Outline of Reform of People’s Courts over Five Years), October 20, 1999. 67. It is possible to overstate this advantage. In his study of People’s Tribunals, Xiaoli Zhao of Beijing University’s Faculty of Law found that access— even for a Chinese academic from a prestigious institution—still depended on the existence of

188 Donald C. Clarke a personal connection between court officials and the researcher or a fellow researcher (personal communication 2001). 68. For an interesting attempt, see Bainbridge (2001).

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190 Donald C. Clarke Manion, Melanie. 1994. Survey research in the study of contemporary China: Learning from local samples. China Quarterly, no. 139 (September): 741– 65. Ministry of Finance (MOF) and People’s Bank of China (PBOC). 2002. Guanyu gong’an deng bumen shoufei shouru naru yusuan guanli de tongzhi (Notice on the bringing under budgetary administration of revenues from fees received by public security and other departments). (Effective January 1.) O’Brien, Kevin. 1996. Rightful resistance. World Politics 49: 31–55. Peerenboom, Randall, 2001a. The Ford Foundation and legal reform in China. Unpublished report on file with the author. ———. 2001b. Seek truth from facts: An empirical study of the enforcement of arbitral awards in the People’s Republic of China. American Journal of Comparative Law 49, no. 2: 249 –327. Pei, Minxin. 1997. Citizens v. mandarins: Administrative litigation in China. China Quarterly, no. 152 (December): 832 – 62. Potter, Pitman B. 1994. Socialist legality and legal culture in Shanghai: A survey of the getihu. Canadian Journal of Law & Society 9, no. 2: 41–72. ———. 1995. Doctrinal norms and popular attitudes concerning civil law relationships in Taiwan. UCLA Pacific Basin Law Journal 13, no. 2: 265 –92. Shen, Hongwei. 2000. Lun woguo lüshi zige kaoshi zhidu (On China’s system of examinations for lawyer qualifications). Hebei Faxue (Hebei Jurisprudence ), no. 1: 81– 82. Shen, Jungui. 1999. Dui woguo peishenzhi de foudingxing sikao (Rejectionist thoughts about China’s system of assessors). Zhongguo Lüshi (The Chinese Lawyer), no. 4: 14 –15. Shetreet, Shimon. 1988. Judging in society: The changing role of courts. In The role of courts in society (467– 85), edited by Shimon Shetreet. Dordrecht, The Netherlands: Martinus Nijhoff.. Stephens, Thomas B. 1992. Order and discipline in China: The Shanghai Mixed Court, 1911–27. Seattle: University of Washington Press. Stephenson, Matthew C. 2000. A Trojan horse behind Chinese walls? Problems and prospects of U.S.-sponsored “rule of law” reform projects in the People’s Republic of China. UCLA Pacific Basin Law Journal 18, no. 1: 64 –97. Su, Li. 2000a. Jiceng faguan de sifa suzhi (The judicial qualifications of basic-level judges). Faxue ( Jurisprudence), no. 3: 8 –16. ———. 2000b. Song fa xia xiang (Bringing law to the countryside). Beijing: Zhongguo Zheng-Fa Daxue Chubanshe. Supreme People’s Court (SPC) Research Department, ed. 2000a. Quanguo Renmin Fayuan sifa tongji lishi ziliao huibian, 1949 –1998, minshi bufen (Collected historical judicial statistics relating to People’s Courts nationwide, 1949 –1998, civil part). Beijing: Renmin Fayuan Chubanshe. ———. 2000b. Quanguo Renmin Fayuan sifa tongji lishi ziliao huibian, 1949 –1998, xingshi bufen (Collected historical judicial statistics relating to People’s Courts nationwide, 1949 –1998, criminal part). Beijing: Renmin Fayuan Chubanshe. Tan, Shigui. 2001. Zhongguo sifa jigou gaige yanjiu (A study of the reform of China’s judicial structure). Jiancha Ribao (Procuratorate News), February 15. Available at www.jcrb.com.cn/ournews/asp/readNews.asp?id⫽23578 (April 13, 2001).

Empirical Research into the Chinese Judicial System 191 Tang, Jun. 1994. A historical, philosophical and legal analysis of Chinese mediation. Rovaniemi: University of Lapland Press. Tanner, Murray Scot. 1999. The politics of lawmaking in post-Mao China: Institutions, processes, and democratic prospects. Oxford, England: Clarendon Press. U.S. Department of Justice, Bureau of Justice Statistics. n.d. The world factbook of criminal justice systems. Available at www.ojp.usdoj.gov/bjs/abstract/wfcj.htm (April 16, 2001). Waltman, Jerold L. 1988. Introduction. In The political role of law courts in modern democracies, edited by J. L. Waltman and K. M. Holland. New York: St. Martin’s Press. Wang, Chenguang. 1998. Ban’an xiaolü yu fayuan neibu yunxing tizhi de gaige (Case-handling efficiency and the reform of the internal operations of courts). Faxue ( Jurisprudence), no. 10: 46 –51. Wang, Guiguo, and John Mo, eds. 1999. Chinese law. Boston: Kluwer Law International. Wang, Liming. 2000. Sifa gaige yanjiu (Studies on judicial reform). Beijing: Falü Chubanshe. Wang, Sheng Chang. 1996. Resolving disputes in the PRC. Hong Kong: FT Law & Tax Asia Pacific. Watt, John R. 1972. The district magistrate in late imperial China. New York: Columbia University Press. Weng, Qibin. 1997. Fayuan luan shoufei: He shi guan zha (When will the gate be closed on the uncontrolled collection of fees by courts?). Zhongguo Lüshi (The Chinese Lawyer), no. 12: 28 –29. Xue, Jiangwu, and Yongling Zhang. 2001. Fayuan jingfei baozhang wenti de fenxi yu sikao (Analysis and thoughts about the issue of guaranteeing court funding). Renmin Sifa (People’s Judicature), no. 8: 37–40. Yi, Yanyou. 2000. Zouxiang duli yu gongzheng de sifa: Sifa gaige yanjiu shuping (Toward an independent and just judicature: A review of research in judicial reform). Zhong-Wai Faxue (Chinese and Foreign Jurisprudence ), no. 6: 739 – 65. Ying, Songnian, and Shuhong Yuan, eds. 2001. Zouxiang fazhi zhengfu (Toward a government of rule of law). Beijing: Falü Chubanshe. Yuan, Shuhong, and Shuyu Qi. 1996. Yi fa zhi guo de jubu shijian (zhi yi): Nanjing Shi yi fa zhi shi diaocha baogao [A partial putting into practice of (the doctrine of ) ruling the country according to law (1): A report of an investigation into Nanjing Municipality’s ruling the city according to law]. Zhongguo Faxue (Chinese Jurisprudence), no. 6: 96 –108. Zhang, Weili. 1997. Zhongguo xuyao dapi falü rencai (China needs a large cadre of legal talent). Fazhi Ribao (Legal System Daily), October 3, 3. Zhang, Wusheng, and Zeyong Wu. 2000. Sifa duli yu fayuan zuzhi jigou de tiaozheng ( Judicial independence and the adjustment of the organizational structure of courts). Zhongguo Faxue (Chinese Jurisprudence ), no. 2: 55 –70. Zhao, Junru. 1999. Fayuan sifa tizhi xianzhuang ji gaige qianzhan (The current situation of the judicial system in courts and the outlook for reform). Xiandai Faxue (Modern Jurisprudence ) 25, no. 5 (October): 3 –7. Zhao, Xiaoli. 2000. Tongguo hetong de zhili (Governance through contract). Zhong-

192 Donald C. Clarke guo Shehui Kexue (Chinese Social Science), no. 2: 120 –32. Reprinted in Min Shang Faxue (Civil and Commercial Jurisprudence ), no. 6: 56 – 68. Zhou, Peimin, and Jilong Liu. 1993. Fayuan shenpan huibao zhidu de ruogan wenti (Several issues in the system of courts reporting during adjudication). Faxue Zazhi ( Jurisprudence Magazine ), no. 4: 24 –25. Zhou, Zhuqiao. 1991. Qianxi shenpan huibao zhidu ji qi weihai (A brief discussion of the system of reporting during adjudication and its harms). Faxue Pinglun ( Jurisprudence Review), no. 5: 70 –72. Zhu, Zhijun. 1999. Fayuan neibu qingshifeng bu ke zhang (The trend of seeking instructions within the court system must not be fostered). Faxue Zazhi ( Jurisprudence Magazine ), no. 4: 50 –51.

ch apter

Putting China’s Judiciary into Perspective: Is It Independent, Competent, and Fair?

6

hualing fu

are chinese judges and courts independent, competent, and fair? Most Chinese and foreign scholars would answer this question in the negative. When one takes a global view of the Chinese judiciary, one cannot help feeling frustrated or even desperate: interference in the work of the judiciary is open and “lawful”; the courts often are receptive to the demands of political authorities; the majority of judges have little or no legal education or training (many come from the ranks of retired military officers); the notion of ethics is foreign to Chinese judges; and malpractice and corruption are prevalent (He 1998; Lubman 1999; Tan 2000; Liming Wang 2000; Yaxin Wang 2001; Zuo and Zhou 2000). In looking at the issue from another perspective, a series of questions emerges that are centered on a basic question: have twenty years of law reform in China made any difference?

• Are judges more likely now to resist political and other interference? • Law has become one of the most popular programs in Chinese universities, and Chinese courts have never stopped training judges. Have improvements in legal education and professional training contributed to improving the quality of Chinese judges? • Most important, do independence, competence, and fairness vary according to the cases judges have to adjudicate and the institutions with which the courts must interact? This paper answers these questions by examining several crucial elements of the Chinese system of justice. First, this paper adopts a case-specific approach, arguing that independence, competence, and fairness in the courts differ according to the type of cases heard. Second, this paper argues that

194 Hualing Fu Chinese courts respond to external interference strategically, according to the nature and status of each institution seeking to exert influence over the courts. Finally, this paper examines the composition of the judiciary in an effort to understand how different types of judges and their relationships to one another affect the independence, competence, and fairness of the Chinese courts. An analysis of cases, court responses, and judges reveals that independence, competence, and fairness are not static, overarching categories: instead they are tied to variable forms of practice within a particular context. With that recognition, this paper calls for a nuanced approach to the examination of the Chinese legal system and, by implication, of other legal systems throughout the world.

A Case-Specific Analysis of the Courts and Judges The cases processed by Chinese courts are classified into four categories: criminal, civil, economic, and administrative. Table 6.1 shows the distribution of cases filed in the courts of first instance in 1999.1 Each type of case has different political implications and economic consequences. A case-specific approach helps place the performance of China’s judiciary into perspective. criminal cases The criminal divisions in China handle only serious offenses.2 Minor offenses are the prerogative of the police, who determine liability and impose punishment subject to limited judicial review. Chinese law defines crime as any act that endangers society with serious circumstances or consequences. Conduct that gives rise only to minor circumstances or consequences is regarded as unlawful (instead of criminal) and falls under the administrative jurisdiction of the police. Each year the criminal divisions adjudicate approximately 500,000 criminal offenses, while the police deal with more than 3 million minor offenses. For example, the criminal divisions tried 540,008 ta b l e 6 . 1 Cases Filed in the Courts of First Instance, China, 1999 Types of cases

Criminal Civil Economic Administrative Total

Number of cases

Percent of total cases

540,008 3,519,244 1,535,613 97,569 5,692,434

9.5 61.8 27.0 1.7 100.0

s o u r c e : China Law Yearbook (2000, 1209).

Putting China’s Judiciary into Perspective

195

ta b l e 6 . 2 Criminal Cases Filed in the Courts of First Instance, China, 1980 –1999 Year

Number of criminal cases

Year

Number of criminal cases

1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

197,856 232,125 245,219 542,648 431,357 246,655 299,720 289,614 313,177 392,564

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999

459,656 427,840 422,991 403,267 482,927 495,741 618,826 436,894 482,164 540,008

s o u r c e s : The statistics from 1980 to 1988 come from the People’s Court Yearbook (1988, 965); those from 1989 to 1999 were published in the China Law Yearbook (1990 –2000).

criminal cases in 1999; the police handled 3,105,940 minor offenses in the same year (China law yearbook 2000, 1217). The number of criminal cases handled by the Chinese courts grew slowly but steadily between 1980 and 1999 with two exceptions (Table 6.2). In 1983, the number of criminal cases was almost double that in 1982. This sharp increase was a direct result of China’s first national “hard striking on crime” campaign (yanda). The second exception was in 1996, when the figure soared to 618,826, the result of a second national yanda. Criminal law is both fundamental and political in China. Crime is seen not simply as a violation of criminal law but also as a political challenge to the role of the Chinese Communist Party (CCP) and to the socialist system. Criminals are largely regarded as “the enemy” and are treated as such. During the economic reforms of the 1980s, new enemies, including serious criminal offenders, political dissidents, separatists, and members of religious cults became the target of the CCP. Whoever challenges CCP leadership and undermines the socialist system can be treated as an enemy of the state (Liangdong Li, Hou, Yan, and Ying 1999). The CCP’s ideology creates a bifurcated system: one for the people and the other for the enemies of the people. Criminal law is reserved to suppress the enemy. If a crime is a challenge to the political order, then a guilty verdict means more than a mere conviction: it transforms the convicted person into an enemy of the state. Consequently the police, the procuracy, and the division are not there simply to enforce the law; theoretically, they also are institutions of the dictatorship. The judiciary is not supposed to be neutral in handling criminal matters.

196 Hualing Fu Criminalization in China in large part means repression. Although Chinese criminal law is slowly being liberalized, reform in the criminal process must be seen in conjunction with the need for political stability. The primary concern of the CCP is maintaining social and political order: “Stability overwhelms everything” (Liangdong Li et al. 1999, 1). Whenever the CCP perceives that an activity poses a threat to stability by challenging the party’s legitimacy, it mobilizes the criminal justice system to strike hard at the perpetrator. The criminal law in China limits the role of the criminal division there. The burden of the criminal process falls instead on the police and prosecutors. Once the police have determined the facts—facts and perceived truth are fundamental to criminal justice in China—the process focuses on verification of the facts. The files the police prepare are central to the prosecution. From the beginning of a police investigation to the trial, the only issue at stake is whether those files can withstand scrutiny by the division. In the vigorous research for “truth,” legal procedures are swept aside. Given routine police practices in China—among them long pretrial detention and the use of force in obtaining confessions— one would expect that the “facts” of a case are established once the police close the investigation. Certainly the politicization of crime and the political status of the police make it difficult, if not impossible, for prosecutors or judges to question police-determined facts. There is a popular saying in China that catches the essence of the institutional relationship at work here: the police cook the rice; the prosecution carries the rice; and the court eats the rice. In fact, the court eats whatever the police have cooked. This is not to underestimate the value of the criminal divisions. The government ascribes more importance to the criminal divisions than to the other divisions. The verification of facts is both the principal work of the criminal divisions and central to the workings of each division. A survey of the annual work reports of the Supreme People’s Court (SPC) to the National People’s Congress (NPC) over a recent twenty-year period demonstrates the importance of criminal trials to the courts (Collections 2001). Each report begins with the subject of criminal trials, and the subject occupies the largest portion of each report. The courts take the view that criminal law is a serious matter: a “wrong” decision, politically or legally, carries with it much more serious implications than do wrong decisions in other types of cases. In some courts, rulings in criminal cases require the approval of the president or a vice president of the court before they become effective (Zuo and Zhou 2000, 204). On the other hand, successful prosecution of a major criminal case often is rewarded politically and materially with the promotion of prosecutor and judge.3

Putting China’s Judiciary into Perspective

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Because of the importance of criminal cases, criminal-division judges also form the largest group in Chinese courts in relation to the number of cases they handle. Although criminal trials remain the priority of the courts, court resources were redistributed in the 1990s, with more resources diverted to other divisions, in particular the economic division. Despite the possible rewards, most criminal-division judges are eager to work in the civil or economic divisions. Serving in the criminal division means hard work under great pressure. Given the political nature of crime, criminal trials are watched closely. And although the law does not make a distinction, criminal-division judges insist that their cases demand a higher standard of proof than do cases in the civil and economic divisions. That means criminal-division judges have to be more diligent and hardworking.4 A more important reason for wanting to transfer to other divisions relates to the relatively meager financial rewards in the criminal divisions. The criminal division, according to the judges, is like a first wife in traditional China: both share a certain status but are lacking in attention and “benefits.” Although all judges receive the same bonus and other welfare payments, judges in other divisions, especially the economic divisions, receive other benefits too— opportunities to solicit or accept gifts and outright bribes.5 The vast majority of criminal defendants are not wealthy, and many are destitute.6 Many criminal-division judges have used their relationship with the court president to be transferred out of the division. And in response to pressure from judges who want to transfer out of the criminal division, some provincial courts have started rotating judges through the various divisions. But the SPC has criticized and prohibited that practice. The highest court apparently was concerned about the negative impact rotation might have on judicial quality. Most Chinese judges do not have a general legal education; instead they have developed expertise— on the job—in a particular area of the law. According to the SPC, judges who have worked in criminal divisions may lack the legal knowledge to work in other divisions.7 civil cases Civil litigation accounts for the largest category of cases handled by the Chinese courts. Table 6.3 shows the number of civil cases adjudicated by courts of the first instance from 1980 to 1999. The civil divisions principally handle two types of cases: debt collections and family-law matters. In 1999, civil law division accepted 3,519,244 cases, of which 1,414,861 ( just over 40 percent) were debt related, and 1,395,907 ( just under 40 percent) concerned marriage and other family-law matters (China law yearbook 2000, 1210). The growth in the volume of debt-collection cases corresponds to the

198 Hualing Fu ta b l e 6 . 3 Civil Cases Filed in the Courts of First Instance, China, 1980 –1999 Year

Number of civil cases

Year

Number of civil cases

1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

565,679 673,926 778,941 756,436 838,307 846,391 989,409 1,213,219 1,455,130 1,815,385

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999

1,851,385 1,880,635 1,948,786 2,089,257 2,383,764 2,718,533 3,093,995 3,277,572 3,375,069 3,519,244

s o u r c e s : The statistics from 1980 to 1988 come from the People’s Court Yearbook (1988, 965); those from 1989 to 1999 were published in the China Law Yearbook (1990 –2000).

soaring number of commercial transactions in China. According to Chinese judges interviewed in 2001, very few of the cases in this category involve any type of serious legal analysis. Usually, the complainant has an undisputed claim and is asking the court to enforce that claim. Because the Chinese government specifically prohibits any type of debt-collection agencies, public or private, all of these matters have to go through the judicial process. The growth in the volume of litigation in other matters is steady but slow — often a function of government or quasi-government agencies’ diverting civil claims away from the courts. Tort claims provide an example. China is an administrative regime, and a number of administrative agencies, the police in particular, perform quasi-judicial functions. These agencies filter out and dispose of most tort claims before the claims reach the courts. Administrative preemption affects other case counts as well. For example, the Civil Administration Authority (CAA), which registers marriages, also has the power to grant uncontested divorces. CAAs granted 180,000 divorces in 1980; that figure increased to 477,000 in 1999 (China statistics yearbook 1981, 2000). Until the late 1990s, when the courts expanded their jurisdiction, almost all of the cases involving medical malpractice,8 road traffic incidents and accidental fires,9 and labor disputes 10 were settled administratively by a variety of government departments. Another important factor limiting the number of civil cases in the courts is mediation. Community mediation traditionally is highly regarded in China, and it is actively promoted and organized by the government. Wellestablished mediation networks form a giant filter, preventing a great number of disputes, criminal and civil, from reaching the courts. In the vast rural areas of the country, where access to the courts is limited, mediation by

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the government is the only mechanism for dispute resolution. There were approximately 170,000 judges adjudicating cases in Chinese courts in 1999; but there were more than 9 million mediators settling disputes in communities that year (China law yearbook 2000, 1041). Finally, under Chinese law, torts arising from crimes are linked to the corresponding criminal litigation; damages in these cases are decided by the criminal-division judge after criminal liability has been determined and a sentence set. These claims are referred to as incidental civil claims and are treated as secondary claims. Change is coming, and with it an increase in civil litigation. The judiciary is expanding its jurisdiction—via legislative authorization and increased judicial assertiveness— over cases that previously were handled through administrative mechanisms. For example, courts in different locations in China have accepted jurisdiction over challenges to the government’s determination of medical malpractice and the cause of traffic accidents and fires—all of which were formerly the prerogative of the executive. The courts now are considering and accepting new evidence presented by the parties over the government’s protests.11 And the judiciary has decided to accept jurisdiction over all labor disputes that the government’s arbitration committee has decided or refused to hear. It seems the CCP is willing to allow a judicial solution to what can be politically sensitive issues, especially since the promulgation of the Labor Law in 1995. In general, the government is promoting the role of the courts in settling private disputes (Class action litigation 1998, 1523). The general public also has become increasingly assertive of its rights and is ready to bring its disputes to court. Although ordinary people may be hesitant about confronting a government department in open court, preferring to settle disputes through an administrative or informal channel, economic development has prepared them to have their private disputes settled in court (Gou and Michelson 2000; Shi 2000). In this area of the law, the Chinese people seem to be becoming increasingly litigious. economic cases Economic disputes between companies are the fastest-growing category among the four types of cases. By 1999, the number of economic cases in the courts of first instance was almost 400 times what it had been in 1980 (Table 6.4). Most of the studies on Chinese courts focus on economic disputes (Zuo and Zhou 2000). Local protectionism and blatant government interference, which are said to plague the Chinese courts, primarily affect the adjudication of economic disputes. This is understandable, indeed legitimate, given

200 Hualing Fu ta b l e 6 . 4 Economic Cases Filed in the Courts of First Instance, China, 1980 –1999 Year

1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

Number of economic cases

3,875 19,186 39,574 44,080 85,796 226,695 322,153 367,156 508,965 694,907

Year

Number of economic cases

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999

588,143 563,260 650,601 894,410 1,053,701 1,278,806 1,519,793 1,483,356 1,455,215 1,535,613

s o u r c e s : The statistics from 1980 to 1988 come from the People’s Court Yearbook (1988, 965); those from 1989 to 1999 were published in the China Law Yearbook (1990 –2000).

the supporting role the courts play in guarding and serving the country’s economic development and state-owned enterprises (SOEs). Almost all of the cases concerning SOEs are adjudicated in the economic divisions. So the divisions bear responsibility for creating a favorable legal environment for the SOEs, for serving and even saving them if necessary (Zhenhan Wu 2000, 4; Xu 2000, 5). And the judiciary is especially cautious when dealing with the insolvency of SOEs because of the possible social impact of the cases (China law yearbook 1999, 1022). The government has a vested interest in protecting local concerns. Protectionism becomes an issue when one party to a dispute is a local enterprise and an adverse ruling could affect the local economy. Because the performance of local CCP/government leaders is measured principally by the economic growth of the locality, those leaders have an interest in economic cases—and the power to protect those interests in the courts. That task is made easy given the political and financial control the local government has over the judiciary and given the structure of China’s procedural laws.12 Some cities explicitly order the local court not to accept any lawsuits against local SOEs without the approval of the government. In a northeastern city, the local CCP committee issued a formal document demanding that the local court offer special protection to the four key companies in the city.13 In another city, it has been decided that the local court cannot take any legal action against any of the model enterprises there without the written consent of the local government (Zuo and Zhou 2000, 208). As a court president noted at a meeting with economic-division judges: “We should consider legal effects as well as economic impact in adjudicating cases. It

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seems unrelated to you when you decide a case or enforce a judgment which leads a local enterprise to lose the case or to become insolvent. But if all the enterprises go under and the county’s economy declines, who is to pay for the salaries of you judges?” (Wei Li 1999, 528). administrative cases There is no system of checks and balances in the Chinese government. Chinese courts have jurisdiction over the conduct of the government only because the CCP gives it to them. Facing a serious legitimacy deficit and strong popular discontent, the CCP has used the law to discipline low-level bureaucrats and to divert dissatisfaction from itself. Judicial review of government decisions was extremely rare before 1989. The courts were granted the limited right of judicial review in April 1989, when the Administrative Litigation Law (ALL) was announced. Since October 1990, when the ALL came into force, the courts consistently have overturned a significant percentage of government decisions (see below). That success has led to a marked increase in the number of administrative cases. In the period from 1983 to March 1989, the courts filed just 18,726 administrative cases (People’s Court daily 1999); in 1991, the year after the ALL was implemented, the courts heard 25,667 cases. As Table 6.5 shows, from 1989 through 1999, the number of administrative cases tried per year rose from 9,934 cases to 97,569 cases, an increase of 982 percent (China law yearbook 1990 –2000). Although the number of administrative cases has grown significantly since the early 1990s, it is still small. In 1999, administrative cases accounted for ta b l e 6 . 5 Administrative Cases Filed in the Courts of First Instance, China, 1989 –1999 Year

Number of administrative cases

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999

9,934 13,006 25,667 27,125 27,911 35,083 52,596 79,966 90,557 98,463 97,569

s o u r c e : China Law Yearbook (1990 –2000).

202 Hualing Fu just 1.7 percent of the total cases accepted by the courts. This is surprising given the fact that the government is everywhere in China, exercising broad powers to manage people’s lives (Peerenboom 2001). Cases that reach the courts are only the tip of an iceberg. We know, for example, that onesixth of all the administrative cases in China have been filed in just one province, Henan (Gao 2001).14 Clearly, there is much room for growth in these cases. Several reasons are offered to explain the comparatively low rate of administrative lawsuits. First, there is the common complaint that the public is poorly educated and so does not know how to sue the government. In the popular legal culture, the courts are a weak institution that may not be able to protect an individual’s rights when they are infringed on by a government department. On the contrary, resorting to the courts may invite official retaliation (Peerenboom 2001). The general perception that the courts are arbitrary and corrupt, and collaborate with the government in perpetrating unfairness, prevents more potential litigants from resorting to the courts.15 The second assumes that the people have the knowledge but do not dare to sue the government. Political scientists have shown that the majority of people in China still think of government officials as family heads, that they see their relationship with the government in hierarchical terms (Shi 2000). Few people with money or connections become plaintiffs against the government. Persons of a certain socioeconomic status are able to prevent adverse administrative rulings through bribes and influence, and so judicial review is not necessary. Most plaintiffs in administrative cases are poor and powerless. A lawsuit against the government is an act of last resort, undertaken only because the plaintiff failed to settle the dispute with the government department informally.16 The courts themselves also are responsible for the comparatively low number of suits against the government. It is common practice for courts to refuse to accept cases in which the defendant is a powerful government department. Even if a plaintiff ’s complaint is filed properly, a court may simply delay, preventing the case from being heard. In effect, the courts screen complaints against administrative departments, allowing only those that fit a certain profile to enter the judicial process. Administrative litigation is successful in part because of this controlled intake. There is also a structural reason for the low rate of administrative cases. Chinese law provides a mechanism called administrative reconsideration, which allows a superior government department or the local government to oversee and correct the decisions of subordinate departments. A plaintiff who is not satisfied with an administrative decision, then, has two options: bring the case to the superior administrative department or to the local government, or file a case with the court. From 1991, when the Law of Adminis-

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trative Reconsideration was passed, to 1997, approximately 30,000 cases were reconsidered by government organs at different levels. Only 25 percent of the cases reconsidered eventually reached the courts for judicial review (Commentaries 1999, 28).17 Administrative-division judges are in a difficult position, and most work reluctantly in the division. They face accusations from the general public of collaborating with government officials and from government departments of failing to support them and of damaging their image. One survey of 245 administrative-division judges asked them about the difficulties they encounter in their work. The answers included a lack of true judicial independence (81 percent), a lack of comprehensive laws and clear interpretations (76 percent), and a lack of cooperation from or interference by the government (63 percent) (Gong 1993, 255; also see Peerenboom 2001). Although the judges complained about government interference, they seem to have internalized an informal process that opens the door to that interference: nearly 90 percent of the judges said they consider “other” opinions in addition to the law in adjudicating administrative cases (Gong, 260). The role of the judiciary in reviewing the legality and propriety of government departments is fundamentally limited by the political status of the courts and their dependence on other government departments (see Peerenboom 2001, 224 –25). The courts are conscious of their own political status and so refuse to hear or put off cases that threaten them politically. They are particularly reluctant to accept cases that challenge the decisions of a powerful institution or a sensitive policy.

Assessing the Chinese Legal System are chinese courts independent? Chinese courts are subject to the leadership and supervision of a number of institutions. Politically, each court is under the leadership of the Chinese Communist Party at the local level. The local CCP committee appoints, reviews, promotes, and removes judges, especially those in management positions.18 The Party, through its Political and Legal Committee (PLC), determines the priority of judicial work, coordinates the court’s relationships with other legal institutions, and even makes decisions in important and contentious cases. Constitutionally, the courts fall under the supervision of the local People’s Congress. Since the late 1990s, in response to increased judicial corruption, some congresses at the provincial level have instituted a mechanism to supervise the courts more directly. The methods they use can place a court’s operations under the systematic scrutiny of legislative “deputies.”

204 Hualing Fu The process leaves individual judges vulnerable—before, during, and after trials—to demands that they decide a case as a deputy sees fit. In a very real sense, the deputies become judges over the judges. Judicial work is also under the legal supervision of the Supreme People’s Procuracy. The procuracy is defined in the Constitution (1982) as the legal supervisory organ of the state. The basic areas in which it functions are the criminal investigation of crimes committed by state functionaries in the course of executing their duties, public prosecutions, and oversight of legal activities. In addition to reviewing the legality of criminal adjudication, the procuracy also has the authority to protest civil and administrative decisions made by a lower court. Once a procuracy protests a decision, the court is bound to reconsider the case (Fu 2000). Financially, the courts are dependent on local government. A court’s income through the budgetary fund, however, covers only part of its expenditures; it has to rely on an extrabudgetary fund (EBF) to cover the balance. The amount in a court’s EBF comes from myriad fees and fines; donations and sponsorships solicited by the court; and loans taken by the court from organizations and individuals, even from judges themselves. In most of the jurisdictions in China, local governments provide about half of what the courts need to operate; the EBF provides the rest.19 Much of the external interference in the courts arrives described as “leadership” or “supervision.” There also is institutionalized political intervention: the CCP and the government—at the national or local level— direct the verdicts in cases of national or local importance. Major corruption cases involving senior CCP or government officials, for example, are decided beyond the courts. Political intervention also is common in economic cases where the outcome could affect the social stability of a region—a major labor dispute, for example, or an insolvency case that could lead to large-scale redundancies, any case that could stir the people to take to the streets in protest. In these cases, it is imperative for the courts to report to the local CCP committee and proceed under the committee’s coordination. The task of the judiciary here is to comply with the political order and passively implement decisions made outside the court. A trial in these circumstances is a formality: the judges involved are well versed in the politics of compliance and political ceremony. Although political intervention in the adjudication of a particular case is rare, it is important to note that it is difficult to distinguish that interference from the interference of officials in their personal capacity. The most popular form of interference is a written note to the court, instructing the court to adjudicate a case in a particular way. The notes are kept in an internal case file and are considered seriously by the court in making a decision. When they want their interference off the record, CCP and government leaders use

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the telephone or an in-person meeting to relay instructions or ask for a progress report on the court’s handling of a particular case. External pressure and interference notwithstanding, the courts still decide most of the criminal, civil, and economic cases on their own. It is in the institutional interest of the courts to assert judicial authority, to carve out their space and to protect it. A judge’s job is to judge; and, like other professionals, judges are not willing to cede their authority to others. In most cases, judges are free to decide; only a small number of cases are directed by political forces.20 Judges address external intervention in their work in a number of strategic ways. For example, they may delay a trial, effectively compromising the effect of interference by stalling its implementation. Or, if they know political instructions are likely in a case, they may try the case quickly, rendering a judgment before the instructions arrive. Or judges may simply ignore political instructions. In general, though, the courts follow instructions from the CCP. As noted earlier, when deciding difficult cases, the courts actually may invite the intervention of the CCP or the local government. A court also is likely to turn to the CCP or the local congress when a defendant government department in an administrative case is not cooperating with the court’s investigation. In fact, the SPC has encouraged the lower courts to report on their work in administrative cases to the local CCP committee and the local government, and to invite CCP leaders and local congress deputies to visit the courts, to help them understand the work and difficulties each court faces (Xiujun Wu 2000). Lower courts also can ask a superior court for help with a case that is engendering local political pressure. Faced with instructions from the local government that the court does not want to follow, the court can solicit an opinion from the higher court to circumvent the local interference. It is well known that trial judges maintain close communications with judges in the appellate court during the adjudication of cases and request assistance when the need arises (Finder 1993). The institutionalized interference by the local congress has remained limited so far. An attempt to pass national legislation that would have given the congresses supervision of individual cases has been derailed by the SPC. And the NPC’s failure to enact the law sends a message that the central authorities do not encourage local supervisory practices. Although the courts accept, and even solicit, the oversight of the deputies, they also insist that the supervision must be from the congress as an institution, not from deputies in their private capacity, and must occur after a court makes a decision.21 The judiciary normally tries to accommodate the deputies as much as possible. An effective court president understands the value of satisfying the

206 Hualing Fu deputies.22 This attitude is reflected in the statement courts make. First they thank the deputies for their “assistance.” Then they say that the supervision of the local congress guides the work of the courts and is imperative for a fair and efficient court system. Finally, they say the court welcomes more guidance and supervision in the future.23 At times the deputies’ meddling creates a headache for the courts, but clearly it is in the courts’ best interests to manage its relationships with the deputies. The attitude of the courts toward the legal supervision of the procuracy, a legal institution of equal political status, is very different. Although the courts recognize the authority of the procuracy to oversee legal matters, the judiciary makes every effort to limit procuratorial supervision. Given the legal uncertainty surrounding procuratorial supervision, judges are less than cooperative when the procuracy challenges their decisions in civil and administrative cases (Fu 2000). That lack of cooperation often has the quiet support of a court’s authorities and may even be encouraged by courts at the higher levels. There are reports that the procuracy often has difficulties reviewing files in the possession of the courts and that some judges, irritated by procurators’ interrupting during hearings, have thrown those procurators out of their courts (Fu 2000). A court’s independence also varies by the nature of the cases on its docket. Courts are limited, even powerless, in serious criminal cases or cases with strong political overtones, and, to a lesser degree, in economic cases that affect key local enterprises and administrative cases with a strong government department as the defendant. In those cases, it is not possible for the courts to be neutral. Again, in matters involving criminal and economic policies, the courts must do what the local authorities ask them to do. At the other end of the spectrum, government intervention is limited in ordinary civil and economic cases. Government authorities are not interested in the outcome of a divorce petition; and few CCP committees are bothered by disputes between two people or two private companies over a debt. The disposal of a particular case that does not involve social stability or an issue of political interest is of little concern to a local CCP committee. In the vast majority of cases, the courts are left to exercise their own authority. The political status of the courts and their relationships with other institutions have largely been settled and are unlikely to change in the near future. are chinese judges competent? Chinese judges come from three distinct backgrounds: government bureaucracies, the military, and universities and law schools. Each of these groups has experienced different training and holds different ideologies. Each also reflects different interests; and the conflict and compromise among

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these groups may well shape the direction of judicial reform in China in the near future (see He 1998; and Su 2000). The first group of judges comes from government bureaucracies.24 In the past, whenever there was a shortage of court personnel, the government would transfer “suitable” people from other government departments to the courts. Suitable here generally meant “well connected.” It is not unusual for court presidents, for example, to have been transferred from some other government department. The government also has used the courts to find places for people whose departments have been downsized. Although those transfers tend to be described in terms of strengthening the judiciary, their effect has been a group of Chinese judges comprised of redundant government officials with no experience or schooling in the law. Most of the people in this group became judges in the 1980s; and their proportion in the judiciary has been dropping largely because of the availability of law school graduates and the increasingly high educational requirements for judges. The SPC was instrumental throughout the 1990s in improving the quality of existing judges and in enhancing the entry standards for new judges (SPC Research Department 2000). Still, local CCP and government officials can always find judicial posts for their relatives and friends. The second group of Chinese judges is made up of demobilized soldiers. The People’s Republic of China has a long tradition of ex-soldiers serving as judges. In the CCP’s ideology, both soldiers and judges are broadly defined as “instruments of the state.” When they leave the military for the judiciary, demobilized soldiers are simply safeguarding the state in a different way. When the CCP began its program of legal reform in 1979, it turned to the military to staff the legal system. And when the CCP decided to downsize the Chinese army in the mid-1980s, demobilizing millions of soldiers, legal institutions were required to absorb a proportion of those soldiers. It was the norm that educated military officers were recruited to the courts, while those with less education would join the police (He 1998; Su 2000, chap. 10). Absorbing demobilized soldiers into the judiciary has been designated an important political task. Although the courts have been able to impose education requirements on new judges, the requirements generally do not apply to demobilized soldiers. The judiciary has no choice but to accept demobilized soldiers and to place ex-soldiers of senior rank in senior management positions—notwithstanding their lack of relevant education and training.25 The government press portrays demobilized soldier–judges favorably, noting that their lack of education is compensated for by their “military characteristics”— discipline, determination, toughness, and a willingness to obey orders (cited in He 1998).

208 Hualing Fu Because promotion in the government is determined mainly by administrative rank and length of government service, many of the demobilized military officers are placed in senior positions in the courts, often in charge of political or administrative departments. And because they share background and mindset, they tend to form a powerful faction in each court. The third group of Chinese judges is made up of graduates in law from universities and colleges. Most are junior judges because they are just out of school and lack experience. It remains the case in the Chinese courts that the most qualified judges—those with legal education—work at a junior level in the courts; those with fewer qualifications occupy more-senior positions; and those with no legal qualifications become court presidents or their deputies. The official thinking on judges with a law school background is that their knowledge is “theoretical”; they often are criticized for their lack of practical knowledge and experience and their inability to get things done (Su 2000). There is a sense, too, that their liberal political views and relaxed lifestyle contribute to their failings (He 1998, 28). In turn, judges with a law school background are highly critical of and look down on those who are not formally educated in law, especially those from a military background. Today, educated judges are gaining power in the judiciary: more law school graduates have entered the judiciary since the late 1990s, and they are becoming the largest group of judges in the Chinese courts. Many educated judges have begun to reach middle or high positions in the court system. In addition, they are the legal experts in the courts; they have the ability to decide cases that raise difficult legal issues. And as the government increases its emphasis on professionalism and procedural justice, the judges with formal legal education will find themselves in an advantageous position. Most scholars would agree that judges’ education is an important indicator of the quality of the judiciary. If competence is measured by general and legal education, Chinese judges, on average, are not very competent: the majority of the judges have received no formal education in the law (Lubman 1999). But legal education may not be a valid test of competence in China. Several factors are at work here: First, legal reform and legal education are new to China. It takes time for a legal system to evolve, to mature. When China first implemented its legal reforms, very few reformers or professors were themselves educated in the law. Most were learning as or just before they started reforming and teaching. In effect, the argument goes, amateurs headed the reform movement and were teaching generations of lawyers. The best lawyers, then, may not have received formal legal education. This is particularly true of the court presidents. Again, most court presidents are political appointees with little or no legal education. And most are

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selected from outside the judiciary (He 1998, 33). But given the intricate relationships the courts must maintain to survive politically and economically, the competence of the presidents of the courts is determined by their political skill and connections, not their legal learning. Professional judges may understand the law better, but their influence is limited to the court itself; they cannot promote and protect the external relationships that are so vital to the judiciary. Indeed, many judges prefer that a well-rounded politician, a generalist, head the judiciary to enhance the court’s status and protect their own interests (He, 57; Su 2000). Competence is also case-specific: it varies with the cases judges are required to try. Although the education level of the judges assigned to each division is roughly the same, the judges’ competence varies greatly because of the legal issues they face. Generally, criminal-division judges tend to be competent at what they do. Despite recent changes, criminal law is the most stable and well-defined law in China. Its structure and principles were established in 1979, when the law was enacted. Subsequent changes may have supplemented and amended the law, but they added nothing substantively new. The most important judicial tasks are to verify facts and discover the truth; and experienced criminal-division judges are well qualified to do both. There is little pressure for criminal-division judges to develop their legal skills. The core penal policy of the CCP is “strike hard on crime”: judges are required to punish criminals persistently, precisely, and harshly. Hard work, diligence, and good working relationships are the key tests of competence for these judges. The political nature of crime does not necessitate the development of sophisticated legal knowledge. The emphasis in Chinese criminal law on “seeking the truth from facts” and on the “correct outcome from the facts” both explains the limited legal knowledge of criminal-division judges and marginalizes an understanding of the law (Woo 2001). Administrative-division judges are in a similar situation. Although the larger political circumstances encourage them to develop a sophisticated understanding of the law, the political and economic realities of the courts in China do not allow the honest application of the law, especially when a case involves a powerful defendant government department. Administrativedivision judges are not allowed to be competent—a truth reflected in the reluctance of most judges to serve in the administrative-law division (Peerenboom 2001, 220). Judges in the economic division are better qualified than others because they are required to deal with very difficult legal matters. Insolvency, securities, and general business matters are all new legal issues in Chinese courts, and the judges who preside over the litigation of those matters must be well

210 Hualing Fu versed in the law. The complexity of the legal issues in the cases, combined with the high stakes involved, leads the courts to assign formally or highly educated judges to the economic division.26 This is why, compared with judges in other divisions, a higher percentage of economic-division judges hold LL.B. and postgraduate degrees; in general, they also are much younger. This is particularly true of judges who hear cases with international implications. Despite their education, however, economic-division judges tend to be the least competent at what they do. Again, the laws in this area are developing, and many have been imported from foreign jurisdictions. What is needed is time to study and digest; but economic-division judges must apply the laws immediately, in real cases, often under political pressure. One should not look to economic law and practice for competence. Civil law presents the “best face” of the Chinese legal system today. Judges in the civil division are the most competent at what they do. Why? Because the law here is less political. Civil cases traditionally involve disputes between people; the economic implications are limited; and the impact on other government departments is minimal. Absent political pressure, civildivision judges are allowed to reason, to analyze the legal issues. The result: judges in the civil division have seized the opportunity to develop the law. Also a factor in the competence of civil-division judges is the connection that can be made between modern civil law in China and the Confucian tradition. In divorce cases, in particular, the legal solutions— compulsory mediation before adjudication and the method used to divide matrimonial property—have their origin in traditional Chinese practice, and suit the values and structure of the Chinese family. Civil-division judges, more so than judges in other divisions, are actively reforming trial procedures and developing a system of law with Chinese characteristics.27 Competence is difficult to measure, and many issues relating to the competence of judges need to be studied further in comparative and historical contexts. Many argue that the ultimate test of judges’ competence is the authority to enforce the decisions they render, a test most civil- and economicdivision judges would fail (Clarke 1996). But the distinctive character of the Chinese political culture explains, at least in part, the difficulties the Chinese courts face in enforcing judgments. Remember that civil cases are thought of as conflicts between people. Traditionally, conflicts between people are solved democratically. As a result, the court is reluctant to take the zero-sum approach by rendering a decision. Judicial mediation, then, is the dominant method used to settle civil disputes (Lubman 1999; Peerenboom 2001). In any event, whether the ability to enforce judgments is an accurate measure of judges’ competence is an empirical issue that also needs serious study.

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is the judiciary fair? What gives the judiciary its bad reputation in China is not the lack of independence or of legal competence; it is corruption. The SPC has long and openly acknowledged corruption in the judiciary and the problems of adjudicating cases by means of personal relations ( guanxi an), favors (renqing an), and bribes ( jinqian an). Over the years, the nature of corruption in the courts has become more sophisticated. Where once judges traded in cash, restaurant meals, and cigarettes, alcohol, and other goods, today the currency of misconduct is more likely to be a trip overseas for “study,” the “loan” of a car, or a foreign education for a judge’s child. Judges also have become more selective in demanding or accepting gifts. At work here are government campaigns against corruption, and increasingly restrictive rules against ex parte meetings between judges, and clients or their lawyers (Woo 2001).28 Not everyone can invite judges out for dinner, and judges do not accept gifts from everyone. The transaction has to be safe, and the people involved have to be reliable. That means corruption has become more indirect, and a third party is almost always involved. For example, a judge may suggest that the plaintiff or defendant in a case contact a particular lawyer or some other person, who negotiates the gift and then may coach the party’s lawyer on what evidence to collect and what argument to submit. Another common way of getting a bribe to a judge is to gamble with the judge at cards or mah-jongg and purposely lose.29 Of course, not everyone has the opportunity to play games of chance with judges. In fact, lawyers have been know to brag about their friendships with senior judges. Lawyers in particular have become instrumental in brokering deals and facilitating transactions between litigants and judges. Lawyers are repeat players in the system, and they tend to have stable and close relationships with a select number of judges. With the participation of lawyers, corruption has become normalized and institutionalized; and it has become less visible. Lawyers’ participation leads to the “democratization of corruption.” Litigants who do not have their own connections to judges can rely on the services of lawyers to bribe or influence judges and others with political power. By using a lawyer as facilitator, any client with money can shop in the “marketplace of justice.” Their role as facilitators also has changed the nature of lawyers’ representation: they have come to rely more on personal connections than on legal arguments, though increasingly connections alone are not sufficient (Peerenboom 2002). There is a plethora of opportunities for litigants or their lawyers to influence judges. Chinese law requires trial judges to maintain contact with the parties or their lawyers throughout the litigation process. For example, trial

212 Hualing Fu judges are required to conduct a pretrial investigation, to collect evidence, during which they may find themselves dining or otherwise socializing with the parties. Indeed, it is perfectly legal for a party to a case to sponsor the pretrial investigation. The mediation process—judges mediate more than half the civil cases handled by the courts each year (Lubman 1999, 272)—also gives the parties and their lawyers opportunities to influence judges. During mediation, too, judges must maintain frequent contact with the parties to negotiate a possible settlement. “Open justice” has a unique meaning in China. Trials may be closed to the public, but judges’ offices are wide open.30 The judicial ethic in the country is based on a very different premise. Bribery can affect a case in many ways. The judge may allow a delay for the party who sent the bribe or provide information about the court’s thinking and the likely outcome of the case. But it is in the gray area of discretion that corrupt practices have their greatest impact. An example: as a rule, corruption is less visible in the criminal division than it is in the other divisions. Under the watchful eyes of the prosecutors, it is almost impossible to buy a not-guilty verdict in a criminal case. But it is still possible to shorten the term of imprisonment because sentencing is at the discretion of the judge. Even in the criminal division, money can buy a shorter sentence or a noncustodial sentence.31 Actually, influence and bribery have become necessary components of criminal justice in China. Defendants would be crushed by the system—which offers little protection—if they were not able to soften its effects by using connections or money. In a sense, connections are a substitute for laws that protect defendants’ rights. Bribery is the protection the system’s laws fail to offer. There tends to be less corruption among administrative-division judges because the government is involved and because most of the plaintiffs are poor, without money or status. If they had either, they would have used them earlier, when the government department was rendering an adverse ruling. Where corruption exists in the administrative division, it takes a more indirect and institutional form. Usually, a potential or actual defendant government department invites all of the judges in the administrative-division to dinners, organizes holiday retreats for them, or provides free and discounted services or goods to the court. The government department expects to influence the court through this interinstitutional bribery. High stakes also increase both the opportunities and the incentives for corrupt practices. Because the stakes in economic cases normally are high, the parties involved are willing to, and capable of, spending a large amount of money to influence judges. Bribery here can affect the court’s decision; it also can affect the damages awarded— damages that judges are free to determine without offering any explanation. In economic cases and civil

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cases, corruption also is seen in the form of undue delays, repeated mediation to force a compromise, findings of fact that favor one party, and divided liability.32

Conclusion Are the courts in China independent, competent, and fair? Clearly the answers are not simple. They demand an examination of the types of cases judges try and the institutions with and within which the courts function. Independence first. Politically, the judiciary in China is no different from the police or the prisons: the courts are an instrument of the Party and the state. The courts in China serve the interests of the CCP and respond to its demands. Again, there is no separation of powers in China: the courts cannot exercise their power independently. In a constitutional framework of congressional supremacy, each court is accountable to the People’s Congress at its level, which has the legal authority to supervise the work of the judiciary. The procuracy also exercises certain supervisory powers over the courts. Still, the courts maintain a certain level of independence in their dealings with the different institutions. Each court complies with, negotiates, stalls, or rejects outside interference depending on a combination of factors. And over the past two decades of reform, the courts have gained more autonomy. The political role of the Chinese courts is limited. That is, courts have no impact on politics in China. They simply punish crimes and settle disputes. But they are becoming more assertive about expanding their jurisdiction. And their experience resolving disputes has given them an area of specialization that increasingly distinguishes them from other government departments. Are judges competent? The average judge is not well educated, and many judges are not qualified for their positions. The ongoing absorption of demobilized soldiers into the ranks of judges has had an adverse effect on the quality of judgments and the courts’ reputation. But increasingly judges are being recruited from law schools; remedial measures are being taken to train judges who lack formal legal education; and less-qualified judges are being transferred to political and administrative departments in the courts. And the efforts to professionalize the courts are having tangible effects. Although lawyers, law professors, and foreign investors sharply criticize the legal system in China, most ordinary litigants— couples who want to divorce, creditors who want to collect on debts, victims of traffic accidents—seem satisfied with judges’ competence. The courts are resolving disputes, and so, at this level, they are seen as legitimate. This is evident, at least in part, from the steady increase in cases filed and tried by the courts in recent years.

214 Hualing Fu Corruption remains the biggest problem in China’s courts. Judges’ professional standards are low. Repeated prohibitions by the CCP, the NPC, and the SPC have failed to bring about significant improvement. Still, it does not make sense to condemn the entire judiciary and to reject the entire legal system because of corrupt practices. Not all judges are corrupt, and certainly not all judges are corrupt at all times. A judge who is willing to accept a bribe from a wealthy company that is suing another wealthy company may be the same judge who goes out of the way to make sure that a destitute accident victim gets paid. But corrupt judges are like terrorists: there may be very few terrorists, but there are many suspects. Discretion is an integral part of judging and is crucial to rendering justice. But the nature of discretion makes it impossible to control. In the end, creating a legal system that is fair requires the development of judicial ethics, judges who are committed to being honest, and judicial independence.

Notes The author would like to thank Richard Cullen, Pinky Choy, Stanley Lubman, Randall Peerenboom, and the editors of this book for commenting on the earlier drafts of this paper. 1. In 1999, the courts of first instance in China accepted 5,692,434 cases and adjudicated 5,698,705 cases (China law yearbook 2000, 1209). 2. Each court typically establishes a number of divisions for particular types of procedures and cases. For example, a civil case is accepted and filed by the filing division before the case can be heard. Then the civil division hears the case. Finally, the decision rendered by the trial division is enforced by the enforcement division. The trial divisions generally parallel the four types of cases: criminal, civil, economic, and administrative. Each division is further divided into several collegial panels, which try cases. Currently, the economic divisions are being incorporated into civil divisions. But this reform is more formalistic than substantive: whatever its name, the divisions continue to hear economic cases. 3. The information here was made available to me in interviews with Chinese judges conducted in 2001. 4. The information here was confirmed through interviews with Chinese judges conducted in 2001. 5. There is no official acknowledgment of the practice, but it is widely known. 6. There are exceptions, though. In areas where an economic crime division exists, criminal-division judges do not feel the need to rotate their posts. Because economic crime involves defendants with wealth, the opportunity for gifts and bribes is great. The information here was made available to me in interviews with Chinese judges conducted in 2001.

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7. The information here was confirmed through or made available to me in interviews with Chinese judges conducted in 2001. 8. Historically, under a State Council regulation, the Medical Administration determined the existence of malpractice and the liability of medical staff, and assessed compensation. The extensive power of the Medical Administration and the willingness of the courts to surrender jurisdiction meant few medical malpractice cases reached the courts until the last few years of the 1990s. For a review of the law of medical malpractice in China, see Zeng (1999). 9. For example, there were 412,860 traffic accidents in China in 1999, resulting in 83,529 deaths and 286,080 injuries. The government has a detailed chart that classifies types of injuries and shows the corresponding damages. Traffic police mediate each case (twice if need be), and refer to the courts any cases in which the parties fail to reach a compromise. Most of the civil aspects of traffic accidents are settled by the police, any insurance company involved, and the parties. The police also determine the causes of fires and assess losses by fire. There were 179,955 fire accidents in 1999, resulting in 2,744 deaths and 4,572 injuries (China law yearbook 2000, 1218 –20). 10. Labor disputes are arbitrated through the government’s Labor Administration. The number of cases submitted to compulsory arbitration soared in the middle and late 1990s, while cases submitted to mediation within a working unit fell drastically. Labor disputes generally did not receive serious judicial attention until around 1995, when the Labor Law was promulgated. 11. In 1999, an Intermediate-Level People’s Court (ILPC) in Sichuan Province issued a directive to the courts in the region that they can disregard any administrative determinations in relation to a medical incident and try the case anew. 12. Chinese procedural laws are structured to maximize the local government’s control over the court in its jurisdiction. Chinese courts allow one appeal only. Most of the cases start at one of the Basic-Level People’s Courts (BLPCs) in a city and, on appeal, go from there to the ILPC in the same city. Most disputes, then, are adjudicated within one administrative region. 13. The information here was made available to me in an interview with a Chinese lawyer conducted in 2000. 14. Henan is one of the 31 provinces, autonomous regions, and cities under direct central control in which the ALL applies. It is the most populous province in China—the population there was close to 100 million at the end of 2000 —with almost 10 percent of the country’s people. 15. The information here was confirmed to me in an interview with Chinese lawyers conducted in 2000. 16. The information here was confirmed through interviews with Chinese lawyers conducted in 2001. 17. In that period, reconsideration agencies sustained 50 percent of government department decisions, overruled 20 percent, and changed 10 percent. Other categories, including withdrawal by the applicants, accounted for the remaining 20 percent. 18. Management positions are the president, deputy presidents, heads of each division in charge of adjudicating cases or other legal functions, and heads of political

216 Hualing Fu and administrative departments. Although the SPC has been trying to remove control of personnel from local CCP committees, those committees have been very successful in maintaining their power. The key to their success: control of the state cadre system, the fundamental organizing framework of the state bureaucracy, of which judges are a part. 19. The information here was confirmed through or made available to me in interviews with Chinese judges conducted in 2001. Also see Liming Wang (2000), and Zuo and Zhou (2000). 20. All of the trial judges I interviewed in 2001 said the percentage of cases subject to the interference of government leaders and deputies in the local congress is small. They used words like very little and rarely happens. One judge told me that of the 160 real estate cases he deals with each year, about 7 or 8 cases—in any event, fewer than 10 percent— come with instructions from CCP or government leaders in their official or private capacities. 21. Deputies are invited by courts to serve as people’s assessors (lay judges) in civil and criminal cases. In an interview with Chinese judges in 2001, I was told that through their participation as people’s assessors, deputies can effectively supervise the courts and the proceedings there. 22. This information was taken from interviews with Chinese judges conducted in 2001 and 2002. 23. Most judges do not want to offend the deputies, who control the appointment and removal of most judges. Although the deputies may have to approve the appointment of a court president and vice president nominated by the CCP, they have the power to block the appointment of other judges and division chiefs if they see fit. In my interview with Chinese judges in 2001, I was given many examples. One told of Shenzhen’s People’s Congress, which refused to reappoint a senior judge to head a court division despite his repeated nomination by the judiciary. It seems the senior judge had offended a number of powerful deputies. The judge remains a member of the court’s Adjudicative Committee but does not hold an administrative position. 24. This group includes a small number of judges recruited directly from the general population. 25. No systematic information is available on the percentage of demobilized soldiers in the Chinese courts, but sporadic local statistics show a high percentage of ex-soldiers in the judiciary (He 1998). Even in Shenzhen, where the educational requirements for judges are more stringent than those in other cities, a large percentage of court personnel comes from a military background: according to the Chinese judges I interviewed in 2001, of the 273 cadres in the ILPC in Shenzhen, between 70 and 80 (between 26 percent and 29 percent) are ex-soldiers. Some of this group have earned a diploma or a degree in law since joining the court. Most work in administrative or supporting divisions and as court marshals. 26. The information here was made available to me in interviews with Chinese judges conducted in 2001. 27. The competence of family-law judges has been called into question. One common criticism relates to the relative youth and inexperience of the judges: that people who are not married themselves cannot deal effectively with divorce matters.

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28. Actually, ex parte meetings between judges and lawyers are common and generally accepted in China. Lawyers have several reasons for wanting to maintain the ex parte status quo. One is the importance of reminding judges about one’s case. Because judges are now required to handle so many cases and other, extrajudicial tasks, busy judges may not read the documents carefully and could forget the key issues of cases if the lawyers aren’t there to remind them. Another reason has to do with the belief that judges in a socialist country should serve the people, which includes meeting with the parties and their lawyers on demand (Chen 1992, 112 –13). 29. Judges’ lifestyle makes connecting with them relatively easy. Judges, like other government officials, are active in many social circles. Male judges spend most evenings and weekends socializing with friends. A smart lawyer would have no trouble learning a particular judge’s favorite pastime and asking a common friend for an introduction. Lawyers, procurators, and judges gamble together, often overnight through the weekend. Money—sometimes tens of thousands Chinese yuan— changes hands at the end of the game. 30. Reforms are being put in place to give the public greater access to trials and to restrict meetings between judges and lawyers in judges’ offices. The reforms have had limited success in Shenzhen’s ILPC. 31. The information here was confirmed through an interview with Chinese judges conducted in 2000. 32. The information here was made available to me in interviews with Chinese judges conducted in 2000.

References Chen, Albert Hy. 1992. An introduction to the legal system of the People’s Republic of China. Singapore: Butterworths Asia. China law yearbook (Zhongguo Falu Nianjian). 1990 –2000. Beijing: China Law Yearbook Press. China statistics yearbook (Zhongguo Tongji Nianjian). 1981, 2000. Beijing: China Statistics Press. Clarke, Donald. 1996. Power and politics in the Chinese court system: The enforcement of civil judgments. Columbia Journal of Asian Law 10: 1–92. Class action litigation in China. 1998. Harvard Law Review 111: 1523 –41. Collections of work reports of the Supreme People’s Court (Zuigao Renmin Fayuan Gongzuo Baogaoji ). 2001. Beijing: Great Wall Press. Commentaries on the PRC law of administrative reconsideration. 1999. In Encyclopedia of PRC administrative reconsideration practice (Zhonghua Renmin Gongheguo Xingzheng Fuyifa Shiwu Quanshu) (12 –147), edited by Xiaoyang Qiao. Beijing: Zhongguo Renshi Press. Finder, Susan. 1993. The Supreme People’s Court of the People’s Republic of China. Journal of Chinese Law 7: 145 –224. Fu, H. L. 2000. Procuracy. Doing business in China (chap 2.2), edited by Freshfields. Huntington, N.Y.: Juris Publishing. Gao, Shude. 2001. Research report on the current situation and development in im-

218 Hualing Fu plementing administrative litigation law in Henan Province. In Toward a rule of law government (Zouxiang Fazhi Zhengfu) (555 – 84), edited by Songnian Ying and Shuhong Yuan. Beijing: Law Press. Gong, Xiangrui, ed. 1993. The ideals and practices of rule of law (Fazhi de Lixiang yu Xianshi). Beijing: China University of Politics and Law Press. Gou, Hongjun, and Ethan Michelson. 2000. Market economy, dispute resolution, and rational law: Centralized Chinese social group in transition. Public Law Review in China 2: 168 – 87. He, Weifang. 1998. The ideals and system in the administration of justice (Sifa de Linian yu Zhidu). Beijing: China University of Politics and Law Press. Li, Liangdong, Shaowen Hou, Daong Yan, and Liang Ying. 1999. Stability: The larger picture that overwhelms everything (Wending: Yadao yiqi de daju). Beijing: CCP Central Party School Press. Li, Wei. 1999. The misunderstanding of the status of courts and judges in China and the correction. In Theories and practices of People’s Court reform (Renmin Fayuan Gaige Lilun yu Shijian) (526 –41), edited by Liang Baojian. Beijing: People’s Court Press. Lubman, Stanley. 1999. Bird in a cage. Stanford, Calif.: Stanford University Press. Peerenboom, Randall. 2001. Globalization, path dependency and the limits of law: Administrative law reform and rule of law in the People’s Republic of China. Berkeley Journal of International Law 19: 161–264. ———. 2002. Law enforcement and the legal profession in China. In Implementation of law in the People’s Republic of China (125 –48), edited by Jianfu Chen, Yu Wen Li, and Jan Michiel Otto. The Hague: Kluwer Law International. People’s Court yearbook (Renmin Fayuan Nianjian). 1988. People’s Court daily (Renmin Fayuan Bao). 1999. April 8. Shi, Tianjian. 2000. Cultural values and democracy in the People’s Republic of China. China Quarterly 162: 540 –59. SPC Research Department (ed.). 2000. Outlines of the five-year reform of the People’s Courts (Renming Fayan Wunian Gaige Gangyao). Beijing: People’s Court Press. Su, Li. 2000. Sending laws to the countryside (Songfa xiaxiang). Beijing: China University of Politics and Law Press. Tan, Shigui, ed. 2000. Research on the reform of the administration of justice in China (Zhongguo Sifa Gaige Yanjiu). Beijing: Law Press. Wang, Liming. 2000. Research on the reform of the administration of justice (Sifa Gaige Yanjiu). Beijing: Law Press. Wang, Yaxin. 2001. Civil litigation in a changing society (Shehui bange zhong de minshi Susong). Beijing: China Legal System Press. Woo, Margaret Y. K. 2001. Law and discretion in contemporary Chinese courts. In The limits of the rule of law in China (163 –95), edited by Karen G. Turner, James V. Feinerman, and R. Kent Guy. Seattle: University of Washington Press. Wu, Xiujun. 2000. New century, new expediency: Reporting on the National Conference of the High Court Presidents. Renmin Sifa (People’s Justice) 1: 6 – 8. Wu, Zhenhan. 2000. Using legal measures to provide legal protection to SOE reform and development. Renmin Sifa (People’s Justice ) 6: 4 –5.

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Xu, Zhengrong. 2000. Several ways of serving SOE reform and development. Renmin Sifa (People’s Justice) 6: 5 – 6. Zeng, Chaohui. 1999. Research on the crime of causing medical incidents. Xingfa Luncong (Criminal Law Review) 2: 162 –243. Zuo, Weimin, and Changjun Zhou. 2000. Transformation and reform (Bianqian yu Gaige). Beijing: Law Press.

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Economic and Political Aspects of Judicial Reform: The Chilean Case

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carlos peña gonzález

the judicial reform process is one the most outstanding phenomena in the Latin American scene today. In the last decade, numerous judicial reform processes have been undertaken or designed in the region with different degrees of success. A regular industry has been built up around it. The international agencies and countries are its investors, and professionals and academics are its rent seekers.1 And the Organization of American States (OAS) has even created an official agency to promote it.2 The chapter begins with a discussion of the factors that contribute to the growth of judicial reforms and an examination of the political and policyrelated elements that affect the success or failure of judicial reforms. What follows is an evaluation of the judicial reforms implemented in Chile during the 1990s. That analysis is carried out on two levels: an examination of the political process of reform and then an examination of the public policy that underlies those reforms. The chapter ends with a consideration of the problems the Chilean judicial system faces in the years ahead.

A Proliferation of Reform Although the majority of the judicial reform campaigns in Latin America put the accent on criminal justice, the phenomenon reaches the whole judicial system. How do we explain this spike in judicial reform activity? Several causes have been suggested: change in the pattern of economic development, with its emphasis on the market; the expansion of democracy; and evidence that the quality of the institutions influences growth. Calderón and Dos Santos (1991) are among those who link reform of the judicial system in the 1990s to the change in the historical pattern of Latin

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American development. After World War II, the Latin American states played a central role in the region’s economic development. The methods they used—among them protective tariffs—focused on stimulating industry within their own borders. That situation began to change as a result of the fiscal crisis most of the countries experienced in the 1980s. As the focus shifted from country to region, so did the functions of the state. Today, governments are expected to correct market failures specifically to provide public goods; to use their influence to promote a fair distribution of income; to maintain monetary balance; and to contribute toward keeping inflation low and the level of both aggregate demand and employment high. The protectionist model of development, with its emphasis on stimulating internal industry, gave way to a market model that would contribute to increased litigation throughout Latin America. As they lost influence on the productivity of their states, Latin American governments also lost part of their capacity to arbitrate social conflicts. As a consequence of this phenomenon, those governments found themselves exposed to a new demand—the production of public goods, one of which is justice. The second factor in the growth of judicial reform is a sustained process of democratization. Historically, democratic regimes have been the exception, not the rule, in Latin America. That began to change toward the end of the 1980s, when the region underwent a period of expanding democracy. With democratization came a greater consciousness of individual rights and expanded visibility of instances where those rights were breached, both of which stimulated demand for a strong and impartial system of justice. The third factor that pushed this phenomenon was a growing consensus in the social sciences literature about the role institutions play in economic growth and development. The theory of economic growth suggests that growth is a function of investment in physical and human capital, and in available technology. The general productivity of an economy—roughly measured by per capita gross national product (GNP)—increases as investment in physical and human capital increases. In time, though, output cannot keep pace with investment. This is where technology becomes crucial: technological innovation slows the rate at which output falls. The neoclassical model stated, therefore, that growth possesses a convergent property (Barro 1997). More recently, however, the theory of economic growth has a new focus: the role institutions play in the process (see Drobak and Nye 1997). Institutions—legal institutions among them—by reducing uncertainty encourage confidence, which in turn lowers the social and private transaction costs of human activities and increases efficiency (see Luhmann 1996; and North 1990). In recent literature, confidence and security have been

222 Carlos Peña González identified as factors that affect the innovative capacity of societies and, hence, their growth. In general, the theory is that confidence in institutions expands as societies transfer confidence from vertical and family relationships (which gives rise to clienteles) to horizontal relationships. Thus, in time, in societies that have the capacity to change and adapt, that confidence expands horizontally and becomes increasingly abstract (Putnam 1993; and see Luhmann 1996), and eventually develops into confidence in institutions—what Guiddens (1990) calls confidence in expert systems. Confidence in this context, however, is not a remote psychological construct. Confidence is built up institutionally by making the future easier to foretell. Increasingly complex societies cannot rest on personal confidence, but keep themselves going with the support of institutional media (Luhmann 1996). These institutional media are of different kinds; but there is no doubt that the judicial system is one of them. All these considerations have been incorporated into the analysis of international agencies and sources of financing, thus building new incentives to improve the judicial system.

The Keys to Success All of these factors have stimulated an increase in and popular enthusiasm for judicial reforms. But obviously they cannot forecast the success of those reforms. The success of any institutional reform—including judicial reform —is a function of several variables. In this chapter, I focus on two of them: one related to political processes; the other, to the public policy character of reform initiatives. Reforms— even in authoritarian contexts—are not the product of the will of any one omniscient and benevolent dictator (Dixit 1996): they are the outcome of compromise and negotiations among numerous actors, each of whom has interests to defend. In the case of judicial reforms, the actors include policymakers (legislators and agency heads) and professional participants in the system ( judges and lawyers). The role of legal professionals is particularly relevant here. Judges and lawyers, threatened by reforms, have in place organizations and associations that can and do exert pressure on the political process to protect their members’ interests. But the main beneficiaries of judicial reforms—the whole body of citizens of the state—are not nearly so well organized. And they incur high transaction costs in organizing themselves, which, in turn, prevents them from acting as a pressure group.3 The lack of differentiation of functions—frequent in poor countries—prevents us from clearly separating the roles of those who design and conduct the reform process and those who are directly affected by it (see Peña 1994). Frequently judicial reform processes constitute— due to those factors—a situation of the prisoner’s dilemma sort: everyone would be better off if a

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cooperative agreement were reached; but those with incentives to maintain the status quo are better organized and able to act collectively, thereby frustrating reform efforts. On the one hand, political forces are demanding judicial reforms; on the other hand, the realities of the process seem to doom those reforms to failure. Yet reform initiatives persist even in the face of recurrent failure. Public actors in the process declare the need for reform and enthusiastically commit themselves to seeing the process through. Then, like players in a Greek tragedy, they do what is necessary to ensure that the process fails. Ultimately the problem lies with weaknesses in the decision-making system that create phenomena like the prisoner’s dilemma, among others. One of the functions of a political system is to create an environment in which people feel secure. Key to that security is people’s sense that the political process will favor a convergence of interests and extend confidence. Where these conditions do not obtain, institutional reform agreements tend to fail: instead of being agreements of a strategic nature, they are equivalent to small advantages that tend to generate insecurity. The insistence of authors like North (1990) on the relevance of the institutions for social change must particularly be taken into account. But in other cases the resistance to change— or the tendency to failure and the return to origin—has, as has already been suggested, simpler motives of the kind put together from public choice (see Mueller 1979). It often happens that the situation that one is trying to change allows certain groups to draw some particular income from it (in the case of legal systems, a useful start is to turn one’s attention to law professionals). These groups, being rational, make it their business to slow down and postpone success because it could diminish their level of welfare. For that reason the rise of a whole rash of reformers in the region of Latin America—who represent themselves as members of civil society—should be examined with care and without getting prematurely excited. One solution, of course, is to build confidence in the political system by democratizing it: by encouraging traditional or new political parties to represent the interests of a broader constituency. Democratization addresses, at least indirectly, both the difficulties average citizens have organizing to protect their interests and the disproportionate influence professional groups have on decision making. On the other hand, judicial reform can achieve success as a political process yet fail as a public policy. That is, a successful political process can be the vehicle of a bad public policy. This is a common problem in Latin America, especially in the sphere of legal reform. At the heart of this problem is the fetishistic attitude of Latin American legal culture about law and legal institutions. Against all empirical evidence, the hope is nurtured that a reform

224 Carlos Peña González design derived from complex normative theories will achieve success and contribute to social welfare (Vargas, Peña, and Correa 2000). On the contrary, a process of judicial reform must, if it is to achieve success as public policy, be inspired by considerations of social welfare and provided with empirical evidence. In every policy decision, each alternative has a cost, and that cost must be considered. The decision to implement one reform involves not only the financial cost of making that change but also the opportunity cost of not making another. Because the state’s resources are limited, every policy decision means a trade-off; every choice means the sacrifice of some other public good. When policymakers choose among reform options, their decisions have to be based on reliable information—information that accurately describes the costs and benefits of each alternative. Reliable information about the state’s system of justice, unfortunately, is generally a scarce commodity in the region. So one can argue that judicial reform can be evaluated as a political process and at the same time as a public policy. Success at either level does not ensure success at the other. A public policy that squanders resources and sacrifices social welfare can be the product of a successful political process. Sometimes, though, the poor quality of the political process ruins the design of reforms. Indeed, the judicial reform process may reveal more generalized defects exhibited in the system of public decision making. That is, the lack of optimum information, deficient participation by the general public, the weakness of the academic communities, and the influence of pressure groups with diverse roots not only make up the surroundings of the reform, but also find expression in the reform. Another factor that affects the success of judicial reforms has to do with certain values people hold for their judicial system. It is a paradox of sorts: reforms designed to increase those values actually diminish them when the reforms are implemented. For example, for the reform process to function effectively, judges have to become more sensitive to the political system; but that sensitivity could be interpreted as undermining their independence. In fact, legal professionals can be a primary obstacle to the implementation of judicial reforms. Their reluctance to change is exacerbated by weak academic communities that lack the capacity or the incentive to innovate. This hinders the system’s ability to change, reducing the efficacy of the new norms and public confidence in them and the system, and once again generates the need for change. Absent the convergence of interests that ensures the medium-term stability of new reforms, the system runs the risk of legal reformism creating a spiral of living for the moment and of insecurity (Pastor and Peña 1999).

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In light of these considerations, an examination of the degree to which judicial reforms succeed or fail must be based on analysis at two levels: first, an examination of the political economy of the process; and then an examination of the design of public policy that underlies the reforms. Both dimensions of the analysis present problems: information is scarce, and, in most cases, the reforms are still in progress. These prevent us from judging both the efficacy (measured by the achievement of specific objectives) and the efficiency (measured by social welfare standards) of judicial reforms.

Judicial Reform in Chile The information problems that limit the analysis of judicial reform in other Latin American countries also are an issue in Chile. Although information is available, it seldom is separated out for analysis. And judicial reforms in Chile have only just come into force, which means that we do not have ex post facto empirical data available with which to make a rigorous evaluation. I think, all the same, that it is possible to examine the main aspects of the judicial reform process in Chile and to judge its success or failure with a high degree of plausibility. As noted above, it is essential to evaluate judicial reform from two points of view: Judicial reform involves political decision making, a process that can be evaluated in terms of political economy. At the same time, judicial reform constitutes a public policy that can be examined with social welfare criteria. The process of judicial reform (actually, of any institutional reform) involves collective decision making. Each group of actors in the process—policymakers, judges and other court personnel, lawyers, and the general public—has different interests. For the reform process to succeed, each group of actors should have reasons to converge in a cooperative agreement. Three elements seem to be at work in effecting the convergence of the various groups: the incentives in the environment in which the process unfolds, the degree of confidence that the reform may serve the actors’ interests, and the general features of the political system. Together, these factors form part of what I call the political economy of the process. Only by understanding these factors are we able to evaluate the reform of the judicial system as a political process. The second part of the analysis involves an examination, not of the process of reform, but of the design of public policy. Remember that a public policy is the product of collective decision making; it reflects a certain social preference in the use of public resources. Each alternative social preference has an opportunity cost and affects fiscal efficiency. What public policy considerations underlie the design of the judicial reform? What social benefits

226 Carlos Peña González made it preferable to other designs? These are the kinds of questions we try to answer in the evaluation of the reforms in terms of social welfare. judicial reform as a political process A political system is—as is suggested by a tradition that extends from Hobbes and Hume to Rawls, and from Durkheim to Luhmann—a mixture of competition and cooperation. Frequently the actors argue with one another about scarce goods, and find themselves in what theory would define as zero-sum situations: what one actor gains another inevitably loses. At the same time, however, the structure of political interactions, in principle, is cooperative. That means the actors are better off coordinating their actions instead of acting on their own. Hume used the term tragedy of the commons to describe a situation in which everybody would be better off if they cooperated; but, for apparently mysterious motives, individuals refuse to do so and hide their preferences. It is possible to explain the situation in various ways. One explanation can be arrived at via the neoclassical model: when they make a decision, individuals count only their direct costs and benefits. The private-cost calculation will usually override the social-cost calculation, what benefits them (private interests) over what benefits the group. Adding to the difficulty of group decision making is the strategic behavior of the group’s members. That is, they tend to hide their actual preferences during the decision process, revealing them only after the good has been produced—in effect becoming a free rider, enjoying the group benefit without private cost. Theories based on neoclassical rationality, which assumes that individuals adopt maximizing behavior, may explain the divergence between private and social costs in litigation, as we discuss below; but they do not tell us how to deal with the dilemma—how to get people to adopt a cooperative agreement. Cooperation is indispensable when the decision at hand is the design of a basic social institution—a judicial system, for example. To understand the variables that promote cooperative agreements, we turn to the Chilean experience of judicial reform. Concern for the Future. The willingness to reach a cooperative agreement seems to be a function of the emphasis the actors place on the future. That is, a belief in a shared future favors the convergence of interests. This simple condition often is overlooked in the midst of designing a reform. But experience shows that the most fertile moments of legal and political constructivism—the very foundation of the modern state— occur when decision makers agree that the future is of greater value than the present. Indeed, a focus on the future enabled Western culture to modernize. And set theory demonstrates that cooperation—tends to be greater when

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the emphasis is on the future. The lesson I would draw from this simple idea is that the process of deciding on judicial reform must be set at a distance, at the level of discourse, from the process of deciding on a transitional policy, a short-term response to the kind of problem the countries of Latin America experience every so often. The design of a system of justice is a matter of public policy, not a matter of justice in the Aristotelian sense. Its objective is the design of a social practice, not the resolution of a particular case. Judicial reform in Chile demonstrates how this temporal variable affects cooperation. Under Aylwin (1989 –1994), judicial reform was presented as part of a political transition from a military regime to a democracy. Frei’s government (1994 –2000), in contrast, presented judicial reform as a strategy for modernizing the country. The first approach used judicial reform as a response to an immediate problem; and it generated bitterness between right-wing groups and the “judicial corporation.” The result was the failure of the reform projects. The second approach, treating judicial reform as part of a grand plan to modernize the country, dissolved the competing loyalties of right-wing groups and the judicial corporation. An emphasis on the future increased the actors’ willingness to cooperate with one another. The Political System. The success or failure of judicial reforms is indissolubly linked with the characteristics of the political system, in particular the characteristics of its political parties. At base, a political system is a set of institutions and rules whose aim is to produce decisions. A good political system provides general objective criteria for making decisions, not criteria that are particular or subjective, founded on the emotions of the actors. Modern societies are heading toward abstraction because abstraction allows them to deal with a world that is more and more complex. That is also why modern societies are increasingly depersonalized. In the end, the most efficient societies are those that are best able to control the actors’ subjectivity. A political system that encourages the subjectivity of the actors— through clientelism, corruption, and patrimonialism—hinders the development of efficient, adaptable structures. Political parties by definition promote private interests; but generally those interests are broad. Moreover, political parties make politics a profession, in the process grooming leaders; and they promote the ethics of responsibility. Simply put, political parties produce public goods that make a country’s social capital grow. But in Latin America, for several reasons, political parties are weak. And under cover of that label, the most picturesque messiahs and redeemers take leadership roles, from time to time inflaming the imagination of the Latin American people and confirming a stereotype of Latin Americans that circulates in the developed world. These leaders do not support responsible policies or pay close attention to the consequences

228 Carlos Peña González of policies; their leadership is incompatible with the design and execution of public policy. The experience of judicial reform in Latin America is rife with examples.4 Consider the case of Peru and the reforms implemented by Velasco and Fujimori. In the absence of political parties to provide leadership and to strengthen confidence, the reforms failed. The same may be said of reforms in Venezuela and in Central America (see Pastor and Peña 1999). In all of these cases, that the reforms failed likely had more to do with the poor quality of the political system—with deficiencies in the institutional environment—than with the lack of imagination or knowledge of those who promoted the reforms. Now consider the case of judicial reform in Chile. First, the institutions of government there are relatively stable. For example, the judiciary has a broad and deep history, interrupted only once. Unlike other military organizations in the region, the Chilean army does not seem to want to take over the government—a product, no doubt, of its professionalization toward the end of the nineteenth century. And, as soon as democracy was restored in 1989, the political parties in the country consolidated in two blocs, a situation that favors cooperative policymaking. In this context, convergence was likely, and that was the case when the judicial reform project was undertaken in 1997. Civil Society. Also key to successful reform is a vigorous civil society. Civil society alludes to the existence of a space for the deliberation of interests that are different from those of the state or the market.5 In that space— at one time called the public sphere —subjects’ mere voluntarism consolidates specific interests that later can be negotiated, and imposes natural limits on the state. Where civil society exists, there is the greater possibility of a strong civic culture, like the one Tocqueville described in nineteenth-century America or Putnam (1993) found more recently in the north of Italy. It is almost a commonplace to state that in Latin America, civil society is weak or virtually nonexistent. That it is commonplace should not make us forget the essential truth it conceals. In Latin America, for a number of historical reasons, the state carries greater weight than does civil society. The product of that imbalance is an ostentatious but weak state centralism. When we intend to reform institutions, we have to recur to the state, but very soon we discover that the Latin American state lacks the professionalism and the consolidation to carry out reforms effectively. In the case of Chile, one of the special features of the judicial reform process—and of its success as a political process—is the participation of organizations belonging to civil society. The government itself has drawn attention to this aspect of the process.

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Studies on the reform of the judicial system in Chile show that the process originated among groups of academics funded by the U.S. Agency for International Development (USAID) (Duce, Riego, Vargas, and Caroca 1998). The groups were organized in the law school at Diego Portales University and in the Corporation of University Promotion. The university’s law school has a community of professional academics; the corporation, in turn, is a nongovernmental organization devoted to mediating between the design of public policies and the production of knowledge in the field of social sciences. Both factors contributed to the success of the reforms. Professional academics, I maintain, offer the most objective criticism of the system of justice. They are more independent, which means they can question the status quo—a critical function of academics—without being compromised by loyalty to judges and the courts. This kind of academic community, virtually nonexistent in the region outside Chile, no doubt contributed to the success of the reforms in Chile. A third group, the Paz Ciudadana (Citizen Peace) Foundation, also took part in the process. This private organization has strong links with powerful business groups in Chile and a presence in the communications media market. On the surface, the participation of a pressure group that exercises influence through informal channels could be considered a failure of the process. But the evidence seems to show that the Paz Ciudadana Foundation instead of mobilizing specific interests actually helped policymakers address the concerns of the general public. Without the participation of the foundation or a similar entity, it is probable that the consistent minority— conservative judges and lawyers—would have won out over the diffused and disorganized majority. This phenomenon was the product of the convergence between the majoritarian interest and the interest of the Paz Ciudadana Foundation. The Nature of the Reforms. Finally, the nature of the reforms are a critical component here. By this I mean not only the content of reforms but also their structure—the means by which they are implemented and evaluated. In Latin America, both implementation and evaluation traditionally have been in the hands of judges or civil servants, people who seem to add layers of legal complexity to the process and then expound on it with the solemnity of revelation. That the reforms in Chile brought other professional groups into the reform process also contributed to the success of the process. Among the institutions and dynamics that contributed to the success of the reform process, one stands out: a public policy of good quality depends on the existence of a professional academic community able to evaluate the judicial system and to push for its improvement. This is a condition that as a rule is not fulfilled in the countries of Latin America. Latin American le-

230 Carlos Peña González gal education is carried out by professionals of the law, whose interests in the profession constitute an inconsistency in roles that stands in the way of criticism of the law. The professionals tend to act as rent seekers, and they tend to put their own interests first. The features of the judicial system in the region of Latin America are favorable for the extraction of income by law professionals. So they show reluctance to change the judicial system. For that reason, the participation in reform processes of a professional and independent academic community—with interests other than those of the legal profession— constitutes an indispensable condition for the success of reforms. This is one of the most deficient variables in the region, and one where Chile is in a better relative situation. public policy and the reform of criminal justice The system of criminal justice in Chile is rather simple.6 It is inquisitorial: Chile’s system of justice operates very much like the inquisition of the Carolingian church. Judges simultaneously carry out the functions of investigation and adjudication. There is no public prosecutor, and the system of public defense is virtually nonexistent. I have often thought that Kafka could have been a citizen, not of Prague, but of Santiago, without any impairment of his anxious imagination or his eagerness to criticize. The system of criminal justice in Chile today not only is incompatible with the promises and principles of the constitutional state (in itself a serious violation); it is also inefficient. Let me stop for a moment and examine the efficiency of the system of justice that today’s reforms would abandon. By efficiency here, I am referring to the relationship between costs and benefits. According to this simple definition, a system is efficient if it cannot provide equal or better solutions at lower cost; it is inefficient if it admits improvements without increasing the cost.7 So to the question: what are the costs of producing criminal justice? Broadly speaking, I think it is possible to distinguish two sets of costs here: The first are the costs directly involved in the functioning of the apparatus of justice. In general, these are the public costs that are financed by taxpayers and the private costs associated with the prosecution and the defense. The second set of costs has to do with the resources society sacrifices apropos of the judicial decision. For example, suppose a person is found guilty and sent to prison. Society pays not only the cost of the incarceration; it also pays for the loss of that person’s productivity in a free labor medium. Every decision the courts make in a criminal case—a guilty verdict or a not-guilty verdict—implies a value to society. The efficiency of a system of criminal justice, then, depends on several

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variables. In Chile, policymakers examined the rationale for investigating crimes, for suspending proceedings, and for depriving convicted criminals of their liberty. Implied in the decision to reform criminal justice in each of these spheres is the belief that they were not operating efficiently. We begin with the rationale for investigating criminal offenses. In the first place, it seems sensible to say that in a criminal justice system, a rational assignment of resources is one that ends with a conviction. Any activity that falls short of that has little or no social value.8 To reach this social value, the system of justice must be designed in a way that takes into account two kinds of restrictions: technical and budgetary. The total sum of offenses defined by the law in principle is made up of two sets: those that when investigated will produce no result, given existing technical restrictions; and those offenses that when investigated with existing technical resources will produce some result. We can call the first class of offenses Type Z and the second Type A. It seems obvious that a system of justice is assigning its resources rationally if it employs them to investigate Type A offenses, not Type Z offenses. If we know without spending a large amount of money that certain offenses inevitably go unpunished because of technical circumstances, it would be stupid to expend resources to investigate them, especially if the alternative cost of that assignment is to leave uninvestigated an offense that is likely to end in a conviction. Of course the decision to investigate only certain kinds of offenses depends on the system’s capacity to discriminate between both sets of offenses. An inquisitorial system of justice like the one in Chile does not have that capacity because the law obliges the state to investigate all offenses reported, without discriminating between those that, given existing technical or budgetary restrictions, will not produce any social value and those that will produce social value. Adding to the difficulty of decision making here is the fact that not all offenses of Type A will be equally complex, which means the same amount of money applied to two different Type A offenses may have different value. A rational assignment of the budget would oblige the system to discriminate between both types of offenses—we can call them A1 and A2 —to equalize the utility, or productivity, of each monetary unit spent. All of this assumes that when we take into account the budgetary restriction, we have some mechanism that allows us to distinguish between A1 and A2 offenses to optimize, as much as possible, our inevitably limited budget. One reform of the system of criminal justice in Chile just recently approved— creation of a public prosecutor—rationalizes the use of economic resources in the system by taking into account both technical and budgetary restrictions. To the political and moral benefits of an adversarial system in

232 Carlos Peña González which the division of power increases the independence of judges is thus added greater efficiency in the use of the system’s resources. Obviously, the installation of a public prosecutor’s office also involves costs; and a rational evaluation obliges us to compare whether those costs are lower than or at least equal to the costs of not creating the prosecutor’s office. But even if the economic costs of creating a prosecutor’s office are higher than the costs of not doing so, the reform can still be rational. The key here is the social value of the change: will the new system satisfy a need that the old system does not? The calculations of costs and benefits that have been made in Chile in this matter show that for the same number of offenses, the resources need to grow from $184 million to $275 million.9 (The average cost of investigating an offense adequately grows from $1,400 to approximately $2,000.) But, again, the possibility of rationalizing criminal investigation is not the only element that will make the criminal justice system in Chile more efficient. Another contribution could come from suspending proceedings so that the parties can reach an agreement by negotiation. In the present system of criminal justice in Chile—and I suppose in all formal systems of adjudication by a third party—it is always possible to negotiate outside the courtroom. In a system like that, in which negotiation operates as an informal mechanism, the parties have two alternatives for deciding: namely, to go into the criminal justice system and await its results, or not to go into that system and reach an agreement that is not backed by the law. The criminal trial system Chile is introducing will make the decision tree more complex because it admits the possibility of negotiation once a case has entered the judicial system. The process is a form of plea bargain: before or even during the trial, the prosecutor offers the accused a penalty in exchange for a guilty plea. The cost–benefit analysis for the defendant is relatively straightforward: if the penalty is less than what the court is likely to mete out, the defendant is likely to agree to the plea bargain. The analysis for the judicial system is more involved. Whatever penalty the state imposes on the defendant is a cost, although a lesser penalty (negotiated versus adjudicated) does mean less cost. And there are the resources saved by avoiding or cutting short a trial. But negotiation here has other costs. The penalties for criminal offenses have preventive value: that is, some people do not commit crimes because they do not want to risk the penalty. When the penalty is reduced, so is its preventive value. But this loss is balanced by the great quantity of public funds saved, a resource the society will be able to spend on investigations. There are only two cases in which the costs of negotiated pleas might outweigh the benefits. If the system operates according to the number of cases resolved, the resources freed by the negotiation process would go to other objectives of social welfare, not to the investigation of crimes. Second, if the

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system has enough resources to prosecute all crimes, negotiating penalties is obviously a loss. The resources saved by producing justice through negotiation—in the case of Chile, approximately $312 million in public and private funds—should be weighed against the social benefit of complete condemnation: if society values that benefit (i.e., complete condemnation) more than the amount of resources saved, then the decision to consider negotiating mechanisms is less than ideal.10 Finally, the proposed reforms of the criminal justice system provide mechanisms that would allow policymakers to rationalize the loss of liberty. Among those mechanisms is a twenty-four-hour limit on detention by the police before a charge is made (the current limit is forty-eight hours); possible alternatives to detention while a case is being tried; shorter sentences (half the current minimum), with an upper limit of two years; and the suspension of trial in the case of first offenders (with the promise of a more severe penalty should the defendant repeat the offense). We cannot carry out a detailed cost–benefit analysis of these measures, but a brief list of the variables speaks to the economic and social value of the reforms: • By cutting detention a day, those arrested should “save” a day. That is certainly true for the 52 percent of those arrested in Chile who are released for lack of evidence. It is also true of the no more than 30 percent who eventually are tried and convicted and for the remaining 20 percent who are tried and found innocent. To that should be added the savings to society of reducing detention by half—in March 1998, an estimated $695,000 a year. • Alternatives to preventive detention produce an obvious gain in time for defendants; 11 and the costs to society of keeping defendants in jail likewise are reduced. But certain resources must be assigned to control defendants in a free environment; and, of course, there is the social cost incurred when a defendant runs away to avoid conviction. The cost savings of these measures has been calculated at $2.6 million. But if society places a higher value than that on convicting criminals, the measures may not be cost-effective. • To analyze the costs and benefits of the establishment of limits on the duration of preventive detention, the savings in time and the costs of detention must be compared to the value society is disposed to pay to prevent the probable flight of the guilty. • The mechanism to suspend the cases of first-time offenders gives those defendants their time; it also reduces the costs to society of imprisonment and frees the resources that would have been assigned to first-offense trials. But the increased penalty for a second offense must offset some of the

234 Carlos Peña González savings here. And there could be social costs if the measure encourages people to experiment with criminal behavior just once. In general terms, judicial reform of the criminal justice system in Chile can be considered a successful political process. It displayed a high degree of convergence among all the actors in the legal system; an important mobilization of the citizens; and surprising speed. Also, the system of criminal justice that recently came into force implies a definition of public policy that appears to satisfy social welfare criteria. But these reforms obviously do not address the system of civil and commercial justice and only partially affect the market for professional services. civil, commercial, and constitutional law In Chile the general rule is that common jurisdiction in the areas of civil, commercial, and constitutional law is exercised by the appeal courts and by the Supreme Court, which exercises a somewhat decayed form of judicial review. The constitutional tribunal—which has existed in Chile only since 1970 —has, in general, functions of preventive control over the constitutionality of the law. The section begins with some general ideas regarding these areas of justice; it ends with an examination of the available empirical evidence.12 Traditionally, in the rhetoric of legislators and lawyers, justice is described as a public good, a good that once produced, benefits a wide range of consumers whether or not they have paid for it. If justice is a public good, the market is not a suitable mechanism for dispensing it because there would be less justice than society needs; and if justice is a public good, people would not pay for it. That vision of justice as a public good allows us to understand in a coherent way the predominant model of the administration of justice and judicial reforms in Latin America: a public service entrusted to officials of the state, financed by taxpayers, and accessible to all, with no apparent barriers to access, as, for example, a system of prices would be. The reality is very different. An examination of civil and commercial law—the composition of the litigation and judicial behavior—makes clear that in these areas justice is not a public good. Legal services are marketed; access to the courts is limited. These kinds of justice constitute a private good. Yes, the state pays a good portion of the costs; but it does not pay all of them. And ultimately the benefits of these areas of justice accrue predominantly to the litigants. What difference does it make? What is the harm of providing civil and commercial justice under the guise of a public good? The answer: it dam-

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ages society. When litigants do not pay all of the costs associated with their dispute, they are benefiting disproportionately from the public capital. In turn, people tend to litigate more, beyond what would be efficient from the point of view of social welfare. Eventually, even though the costs of litigation are higher than the benefits, people have to sue. There exists, in technical terms, a divergence between the social and private costs of litigation. That divergence—as Steve Shavell (1997) has demonstrated— can, of course, be located in the opposite of what I have just described: if justice is financed wholly by private individuals, then not all suits that should be brought will be brought, and society will be deprived of the important social benefits of litigation. Because every judicial action generates benefits for society in general, benefits that the litigants do not internalize individually, a judicial system, and the information it contains on judicial practice (precedents), lowers transaction costs and deters unwanted behaviors by assigning those behaviors certain costs. A judicial system that works, then, produces broad benefits that extend beyond the litigants. This is the public dimension of justice. When the private optimum in the provision of the good called justice is less than the social optimum, the state must finance the difference. It does that by charging the taxpayers for their “share” of the good. In other words, the social optimum can be reached only if the state reimburses private litigants for the cost of the positive externalities they are generating with their lawsuits. This is not a traditional description of civil and commercial judicial systems, and putting it into operation, though possible, is extremely difficult. But I think this description has enormous heuristic value, and I use it in the discussion that follows. The information available in Chile on the functioning of the judicial system is incomplete and not altogether trustworthy. These are problems common to those who study comparative legal systems. Analysis is still possible, but it requires verification over time. This is the information we have about the civil, commercial, and constitutional systems of justice in Chile: • From 1975 to 1995, a period of twenty years, 60 percent of the civil claims filed were not disputed. In many, claimants were asking the courts to enforce a contract or a claim whose legality was not in question. These claims were noncontentious and administrative. • During the same period, 77 percent of the claims classified “contentious” involved the collection of debts. • In 36 percent of the contentious claims, the plaintiffs were banks and financial institutions; in 46 percent of those claims, the plaintiffs were de-

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•

•

•

•

partment stores and other corporations. In just 17 percent of those cases were the plaintiffs individual citizens; and more than half of them were acting on behalf of businesses. Between 1975 and 1995, 84 percent of all the cases that entered the judicial system were resolved; but just 26 percent of the total were resolved by a court order or court-sanctioned agreement. That means 58 percent of cases were resolved in some anomalous way in light of the explicit objectives of the judicial system. This situation—in which the general funds earmarked for justice are distributed apparently regressively— coexists, on the other hand, with an increase in expenses in that sector. From 1977 to 1997, judicial expenditures grew by 365 percent; during that same period, the net public budget grew by 99 percent and the GNP by 208 percent. The number of cases filed and resolved between 1977 and 1997 grew at a similar rate to court expenditures; but not so the number of tribunals, which grew by only 37 percent in the period. That means each tribunal was more costly to operate at the end of the period than at the beginning. What is spent in Chile on justice is distributed unevenly: that is, resources are transferred from richer sectors to poorer ones. The production of public goods in the judicial system, one could add hypothetically, is low. No poor district gets more than the national average of expenses. And the only districts that do receive more than the national average are those ranked “not poor.”

These data—in light of the heuristic description of justice with which this section began—allow us to state in principle that spending more on justice or, I suppose, on health care or education does not translate into greater access. In fact, the low level of dispute resolution in the courts would indicate the reverse. The situation I have just outlined—for the studies I referred to—is not very different, in that it deals with constitutional justice and annulment, which, in the civil law tradition, as is well known, are expected to produce public goods more directly (defined as production of coherent information and as a dissuasive effect). The preceding conclusions— once submitted to a process of verification—should serve as orientation for a system of justice whose directives should be similar to the following: 1. It seems necessary to modify the composition of judicial work in Chile (see Correa, Peña, and Vargas 2000). 2. It seems useful to promote goods that substitute for jurisdictional ones, particularly different methods of alternative dispute resolution (see Peña 2002).

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3. What might contribute to a better allocation of judicial dollars is an increase in the specialization of the tribunals, so that the complexity of the judicial system corresponds to the complexity of the kinds of cases it hears. 4. It is necessary to improve the system of judicial revision of the law. 5. It seems necessary to modify the incentives in the market of legal professionals.

Notes 1. Witness the participation over the last decades in the process of international agencies such as the World Bank and the Inter-American Development Bank (see Messick 1997). 2. Centro de Estudios Judiciales de las Americas (CEJA; “Justice Studies Center of the Americas”) is an autonomous intergovernment entity whose mission is to support the countries of the region in their judicial reform efforts. CEJA is headquartered in Santiago, and its members include every nation of the OAS. 3. For a general analysis of the problems of obtaining public “goods,” see Cornes and Sandler (1996). 4. The evidence here is anecdotal; constraints of time and space prevented an empirical study of the role political parties have played in the design and implementation of judicial reforms. 5. The expression civil society has a long history in the development of ideas. It comes from the Latin societas civilis, and alludes to the separation between the public sphere (soberein’s dominion) and society (societas). In the literature on the social contract (Locke and Hobbes), the expression is used in contrast to natural state. Hegel uses the expression to describe a “system of needs and cooperation”; but he distinguishes civil society from the state (politics in the modern sense), which he believes is essential to exercise people’s capacity for transcendence and universality (see paragraph 190 in the Philosophy of Law). Civil society today is used to refer to an ambit of relationships that is different from the market and the state, a sphere in which the collective interests of the society are expressed and promoted. This is how the expression is used here. One last comment. Although civil society possesses a relevant democratic deficit, many would argue that civil society is an encouraging sign of democratic development. It is possible that in Latin America there does not exist a link between the development of civil corporations and the existence of a democratic regime. The relationship—according to Latin American history—is between a system of political parties and democracy. 6. In this section, I have relied on Valdivieso et al. (1996) for concepts; the data are taken from Ministerio de Justicia (1999a, 1999b, 1999c). 7. I think, in passing, that this satisfies a Paretian definition of efficiency: the system is inefficient if it admits greater capacity to protect society at the same cost.

238 Carlos Peña González 8. This definition of social value, of course, is a simplification; but it seems obvious that this kind of simplification is indispensable for isolating variables and demonstrating the logic implicit in the analysis. 9. All dollar amounts are U.S. dollars. 10. I do not consider here the set of problems caused by having a scale of social preferences that allows that valuation to be carried out. 11. Because the time gained is not entirely at the defendants’ disposal, its value has to be estimated at less than 100 percent. 12. This section relies on the work of Correa, Peña, and Vargas (1998, 2000) and Peña (1996).

References Barro, R. 1997. Determinants of economic growth. A cross country empirical study. Cambridge, Mass.: MIT Press. Calderón, F., and M. Dos Santos. 1991. Hacia un nuevo orden estatal en América Latina (Toward a new state order in Latin America). México: FCE. Cornes, R., and T. Sandler. 1996. The theory of externalities, public goods, and club goods. Cambridge, England: Cambridge University Press. Correa, J., C. Peña, and J. Vargas. 1998. Poder judicial y mercado ( Judicial power and market). Santiago: Universidad Diego Portales. ———. 2000. Poder judicial y acción de los privados ( Judicial power and action of the private sector ). Santiago: Universidad Diego Portales. Dixit, A. 1996. The making of economic policy. A transaction-cost politics perspective. Cambridge, Mass.: MIT Press. Drobak, J., and J. Nye, eds. 1997. The frontiers of the new institutional economics. New York: Academic Press. Duce, M., C. Riego, J. Vargas, and A. Caroca. 1998. La reforma de la justicia penal (The reform of criminal justice). Santiago: Cuadernos de Análisis Jurídico, Universidad Diego Portales. Guiddens, A. 1990. The consequences of modernity. London: Polity Press. Luhmann, N. 1996. Confianza (Trust). Madrid: Anthropos. Messick, R. 1997. Judicial reform: A survey of the issues. Draft. Ministerio de Justicia. 1999a. Technical report of costs of criminal justice reform. Santiago. ———. 1999b. Sistema constituído por los juzgados de garantías y tribunales orales en lo penal. Santiago. ———. 1999c. Sistema nacional defensa pública. Santiago. Mueller, D. 1979. Public choice. Cambridge, England: Cambridge University Press. North, D. 1990. Instituciones, cambio social y desempeño económico México: FCE. Pastor, S., and C. Peña. 1999. Seguridad jurídica e inversión (Good justice and economic investment). New York: United Nations Programs for Development. Peña, C. 1994. Hacia una caracterización del ethos legal (Toward a definition of legal ethos). Santiago: CPU. ———. 1996. Práctica constitucional y derechos fundamentales (Constitutional practice and human rights). Santiago: Corporación de Reparación y Reconciliación.

Economic and Political Aspects of Judicial Reform 239 ———. 2002. Estimular los mecanismos alternativos? (Have we to stimulate the alternative dispute resolution?). Sistemas Judiciales, Centro de Justicia de las Américas vol. 1, no. 2 (March 2). Putnam, R. 1993. Making democracy work: Civic traditions in modern Italy. Princeton, N.J.: Princeton University Press. Shavell, S. 1997. The fundamental divergence between the private and the social motive to use the legal system. Journal of Legal Studies 26. Valdivieso et al. 1996. Reforma procesal penal. Análisis costo–beneficio. Santiago: Ministerio de Justicia, Fundación Paz Ciudadana, and Corporación de Promoción Universitaria. Vargas, J., C. Peña, and J. Correa. 2000. El rol del estado y del mercado en la justicia (The role of state and market in justice). Santiago: Universidad Diego Portales.

ch apter

Judicial Reform in Mexico: What Next?

8

héctor fix-fierro

during the past two decades, Latin American countries have been forced to reorient their economic policies toward more open and integrated markets, and most have returned to democracy after a period of military government, or, as in the case of Mexico, after decades of authoritarian rule. In this context, judicial reform and the rule of law are considered indispensable elements for the consolidation of economic liberalization and political democratization (Carothers, 1998). Frequently with the prodding and support of U.S. development agencies and international financial institutions—the World Bank and the Inter-American Development Bank, for example— most Latin American countries have begun the process of transforming their judicial systems. Although results have been less than impressive so far (Hammergren 1998, 21 ff.; Prillaman 2000, 8, 163 ff.), it is unlikely that the reform process will come to a complete halt as long as it continues to be regarded as a piece of a broader process of institutional modernization. In Mexico, the judiciary used to be third rate rather than the third branch of government—that is, it did not exercise power alongside of, and on equal terms with, the executive and the legislative. The courts clearly occupied third place in terms of institutional authority, social prestige, and economic resources. I have attempted to document elsewhere (Fix-Fierro, 1999b) how historical factors, political realities, and operational constraints contributed to the relative weakness of the Mexican judiciary (see also Taylor 1997). The official neglect of the courts, however, began to change slowly in the 1980s. In 1987, for example, a constitutional amendment not only gave the Supreme Court and the federal judiciary more formal powers, it also incorporated into the Constitution minimum guidelines and guarantees for the state judiciaries. More important, money started to flow into the federal judiciary in the 1980s, and, much more recently, into the state judiciaries.1 This

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has allowed the courts both to reverse the most visible signs of decay and neglect and to launch a process of rapid modernization. As economic and political reforms take hold, a more complex and pluralistic society seems ready to place higher demands and expectations on the legal system. So, for example, rule of law (Estado de derecho) has become a mantralike phrase in public discourse whenever serious government failures are discovered and discussed. Relevant issues range from crime control to the underground economy. It is obvious that as they are called on more and more to settle a wide range of unresolved social issues, courts are likely to become central actors in public life. And, as soon as the deficiencies of the courts themselves begin to surface, it is likely that judicial reform will gain momentum as a central item on the public agenda. This is what seems to be happening now in Mexico. The courts undoubtedly are facing new challenges everyday. Their decisions are increasingly visible and even controversial.2 Mexican judges were not used to, and in fact disliked, being the object of public attention. Their growing visibility, however, has exposed them to a whirlwind of public opinion and is forcing them to learn about the pitfalls of mass communication. Although most still feel uncomfortable with the new state of affairs, their leaders have identified this as a welcome opportunity to advance the judicial agenda and, more important, to demand more money. Politicians seem quite content to oblige the judges; they too are aware that problems with the administration of justice are very much in the public’s mind. What follow are a few examples of the Supreme Court’s unprecedented involvement in the political arena, showing both the new power acquired by the Court as well as its limits: • In 1999, an activist president of the Court, with the backing of his colleagues on the bench, convinced the president of Mexico and the federal congress to pass a constitutional amendment that rolled back significant provisions of the judicial reform of 1994 by placing the Council of the Federal Judiciary under the control of the Court. Thus, the Court regained part of the authority and influence it had lost to the council in the first place. (It should be noted that the president of the Republic in 1999 was the same man who had proposed the initial reform in December 1994.) • At the end of 1999, the Court, on its own initiative, established a commission made up of federal judges, attorneys, and legal scholars to draft a new law of amparo—the statute that regulates judicial review, the most important procedural instrument available to citizens for the protection of their constitutional rights.3 The commission worked for about a year, examining and categorizing several hundred proposals submitted by legal

242 Héctor Fix-Fierro professionals at large. It then produced a proposal—revised and modified by the justices—that calls for significant technical and procedural improvements in this area of the law. More important, the draft law proposes to give the Court the power to nullify legislation that it considers to be unconstitutional (see SCJN 2001). Although many lawyers and scholars have for some time advocated the need for several of these changes, as of March 2003 neither the president nor any member of Congress had formally adopted the draft law as a bill. Among other reasons, this may reflect a new reluctance to give more power and resources to the federal courts. • At the end of 2000, the president of the Supreme Court publicly voiced his dissatisfaction with the proposed judicial budget for 2001. In the Supreme Court’s report of activities for the year 2000, he wrote: “I shall state it very clearly: we need more human and material resources, that is, more money in the budget, to have more judges, more courts, more personnel training and more modern tools, like computers and other work tools. . . . Without exaggeration, we have a Third-World budget, considering that it does not even reach 1 per cent of the Federal Budget, while our needs are enormous in terms of judicial personnel, facilities and work materials” (Genaro David Góngora Pimentel in Informe anual 2000, 21; emphasis in the original; translated by HFF).4 His confrontational strategy paid off: legislators increased the federal judicial budget for 2001 by almost 90 percent in constant new pesos (see Table 8.2), an increase that was all the more remarkable considering the fiscal austerity in the country at the time. Paradoxically, the heightened visibility of the administration of justice may obscure the less-political aspects of judicial reform, as well as the fact that very little empirical research exists for evaluating progress so far.5 This paper attempts to provide such an assessment, although the fragmentary and anecdotal character of the evidence allows for little more than an impressionistic account. Still, an evaluation is essential to a discussion of the direction judicial reform may or should take in Mexico in the near future. Before we begin, however, it is important to understand the judicial reform process itself. How can the reform of 1994 be explained? What structural and circumstantial factors contributed to it? Who were the main players, and what interests were they pursuing? The section that follows attempts to answer these questions by examining the social, economic, political, and legal contexts of recent changes in the legal and judicial systems in Mexico. In other words, it does not address the causes of judicial reform or focus only on the intentions and interests of participants. Instead it offers an explanation of its overall rationality. In this sense, the explanation proceeds through the description of several concentric circles, moving from the most general

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processes of social and economic change to the specific legal technology available to reformers. With respect to the assessment of judicial reform, it has been suggested that independence, efficiency, and access are the “three components that constitute a healthy judiciary” (Prillaman, 2000, 16). Consequently, they may be viewed as the key variables in determining whether a judicial reform program is succeeding or failing. I use them in the second section of this paper to analyze the institutional and organizational dimensions of the judiciary. A fourth dimension—the judiciary’s human resources— cuts across the other three components and also is addressed. Generally speaking, it is obvious that the rule of law cannot be strengthened without judges who are willing to internalize their responsibilities toward the development of the legal system in a democratic society (something that they have seldom done in Latin America), and this requires much more than adequate professional training. But a more particular reason exists in the case of Mexico. Although the Mexican legal system has undergone very important changes in the last two decades, legal education and the legal profession have remained relatively unchanged (López Ayllón and FixFierro forthcoming). Thus, despite the fact that law is at present the most widely studied field in Mexico, there appears to be a lack—both quantitative and qualitative— of the lawyers needed for the operation of the new legal infrastructure. It should also be taken into account that the process of democratization has not led to the displacement of legal and political elites in the country by other groups. Thus, it is not surprising to observe that judges continue to behave very traditionally and formally, behavior that helps them avoid the responsibility of framing their own decisions (López Ayllón and Fix-Fierro forthcoming). Hence, the relevant question is not whether judges conform to some ideal judicial profile, but whether the institutional and organizational components of judicial reform, together with their social and professional environments, provide the appropriate incentives for judges to produce decisions that are more consistent with the expectations of society. The paper’s final section is a brief discussion of the shortcomings of judicial reform in Mexico, a look into the future, and, most important, the changes that would produce judges and lawyers who are able to strengthen the rule of law in Mexico. In the long run, however, even this aspect of reform is less important than a new definition of the role the courts should play in society, a definition that ultimately rests on society itself.

244 Héctor Fix-Fierro

Judicial Reform in Mexico: A Brief Account This section summarizes the judicial reform of 1994 and explains the main factors that contributed to it. shock to the system or “big bang”? the judicial reform of 1994 On December 5, 1994, a few days after taking office, President Ernesto Zedillo fulfilled a campaign promise.6 He introduced to the Senate a bill to amend several articles of the federal constitution related to the justice system. In addition to important innovations in the areas of criminal prosecution and public security, the bill proposed major changes to the federal judiciary. Specifically, it gave the Supreme Court of Justice a new composition, while broadening its jurisdiction in constitutional cases. It also established the Council of the Federal Judiciary as the governing body of the federal courts. And it instituted a formal “judicial career” (Fix-Fierro 1998; Note 1995; Vargas 1995). The bill was swiftly passed by both houses of Congress and the majority of state legislatures, despite protests by members of the opposition and other critics that the bill was too important to be rushed through the process, that consultations with experts and other interested sectors were needed. The proposal to later convene a special legislative session to discuss the bill was rejected by the ruling party, the Partido Revolucionario Institucional (PRI), and by the center-right Partido Acción Nacional (PAN). The leftist Partido de la Revolución Democrática (PRD) denied the bill its support. The decree, which amended twenty-seven articles of the Constitution, was finally published on December 31, 1994, and entered into force, for the most part, the next day.7 In contrast to other Latin American countries, before the constitutional amendments of December 1994, there were no broad discussions on judicial reform in Mexico, either in academic circles or in public opinion. It is true that the establishment of a national ombudsman for human rights in 1990 helped bring public attention to many of the serious problems besetting Mexico’s criminal justice system. The ombudsman also made several recommendations that were later adopted as legislation and public policy (Madrazo 1993, 85 ff.). But the rest of the justice system remained more or less under a shadow. There had been no attempts to provide a systematic diagnosis of the courts’ problems based on serious research, and so no efforts were made to analyze different policy options in relation to judicial reform. Still, concern about public security and the justice system was undeniably present in the public’s mind, as attested to by Zedillo’s speech in Guadala-

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jara and the electoral platforms of the three major parties in 1994. In its platform, the PAN (1994, 4, 12) made several proposals that appeared later in Zedillo’s bill, including the establishment of a federal judicial council; it also pleaded for the introduction of internal controls in the operation of the federal judiciary. The PRD (1994, 24) also made specific proposals that were later adopted in the presidential bill, among them the establishment of a judicial civil service guided by strict criteria of “competence and honesty.” By contrast, the ruling party, the PRI, made rather vague suggestions with respect to the administration of justice (1994, 134 ff.).8 Sensing that important change was in the making, the Supreme Court justices began to discuss and prepare their own proposals for judicial reform, which they delivered to Zedillo once he was declared president-elect.9 Moreover, Zedillo’s bill received an unusually high level of attention from the press and other social sectors, including businesspeople and nongovernmental organizations. Most agreed in principle with Zedillo’s move, considering it a “good beginning” (see Oportuna y positiva 1994). The Faculty of Law and the Institute for Legal Research of the National University (UNAM) organized two roundtable discussions on the proposed reform that were covered by the press (see, for example, Venegas, Pérez Silva, and Aranda 1994, 14; and Saldierna 1994, 11). And in response to opinions voiced by different actors, the Senate introduced several changes to the presidential bill (see Fix-Zamudio and Cossío Díaz 1996, 548 ff.). The most controversial proposal in Zedillo’s bill was undoubtedly the provision that forced all twenty-six sitting justices of the Supreme Court into early retirement. The explicit justification was that the Supreme Court’s new power as a constitutional court required a much smaller and more qualified body. It also was argued that the Court should return to its “original” size— eleven justices—because backlog was no longer a problem and because the Court’s administrative tasks were being transferred to the Council of the Federal Judiciary (see Fix-Zamudio and Cossío Díaz 1996, 583 – 84).10 But, as already suggested, suspicions of corruption and other undisclosed reasons may have played a role as well.11 This provision was criticized by many analysts, one of whom called President Zedillo an “Aztec Fujimori” because his proposal amounted to a “technical coup d’État” against one of the branches of power (see Rivapalacio 1994). Another wrote that even if no one of “right mind” could vouch for the honesty and legal abilities of the judiciary as a whole, it was wrong to hurl an “irremissible sentence” against the entire judicial body (Granados Chapa 1994).12 It is most telling, however, that not one critic defended the justices’ legal skills or argued that they had been doing a very important job.13 The governing board of the Barra Mexicana—the most prestigious of

246 Héctor Fix-Fierro the Mexican bar associations—took a position in the debate through a short newspaper advertisement addressed to the Congress of the Union (Barra Mexicana 1994). The association claimed to share fully in the reform’s goals. It went on to give specific support to those provisions that would prevent high government officials from being appointed directly to the Supreme Court, but it was silent on the issue of the justices’ forced retirement.14 Understandably, the proposal caused considerable unhappiness, even disgust, among the Supreme Court justices. According to press reports, the justices met several times behind closed doors to examine the bill and to agree on a common position (see, for example, Divide a ministros 1994; and Preocupan despidos 1994). Several justices threatened to resign but in the end did not. An act of public protest by some of the justices, judges, and other judicial officials in front of the National Palace was announced and then canceled the next day (División entre magistrados 1994). A judicial official was quoted as saying that the federal judiciary was not the federal criminal police and did not need a “clean up” (Preocupan despidos 1994). Divided among themselves and perhaps sensing that their cause provoked little sympathy among the public, the justices never managed to issue a public statement, collectively or individually. In the end, they were the unintended victims of the low public profile the Supreme Court had consciously cultivated for many years.15 One important aspect of the reform bill was seldom mentioned. Much of the discussion centered around the political meaning of the reform; but the legal-technical aspects were barely examined. It may well be that such topics are not amenable to analysis by the media. But it should be noted that even the lawyers who participated in the analysis very seldom approached the reform bill from a legal-technical perspective.16 It may also be that many of the innovative aspects of the reform—like the introduction of Europeanstyle “actions of unconstitutionality” and judicial councils (Fix-Fierro, 1998, 6)—had not been the object of widespread discussion by legal scholars and lawyers in previous years.17 Hence, it was likely that the bill’s proposals were met with incomprehension by some of the most prominent representatives of the Mexican legal profession (see, for example, Burgoa Orihuela 1994). In 1996, in the context of an important electoral reform, two further changes were introduced into the federal judiciary. First, the Federal Electoral Tribunal, which had been established in 1990 to settle controversies arising from federal elections, was incorporated into the federal judiciary and was vested with the power to invalidate state and municipal elections. Second, the Supreme Court was granted the power to review the constitutionality of federal and state electoral laws, a power explicitly excluded from the 1994 reform (Fix-Fierro, 1998, 7). In 1999, as already mentioned, the Congress and the state legislatures

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passed a new constitutional amendment that in effect deprived the Council of the Federal Judiciary of its autonomy, placing it under the control of the Supreme Court. The Court now appoints four of the council’s seven members; and it has the power to review the council’s most important decisions and to order the council to issue “general regulations.” Additionally, the amendment gave the Supreme Court the power to decide which cases it hears—because of their “importance and relevance”—and to remand the rest to the collegiate circuit courts.18 All of the later changes tended to confer greater power, authority, and visibility on the federal courts in general and on the Supreme Court in particular. More important, these changes were not merely a product of the interests and ideas of a small elite; they can be traced back to a society that has begun to place greater demands and expectations on its system of justice. As the system has taken on more power, the social, economic, and political relevance of the cases reaching the courts has increased. This, in turn, has given the courts more exposure to the media. The Supreme Court justices today, unlike their predecessors on the bench, consciously promote their presence in the media and widely disseminate news of their activities and decisions.19 They also are using their interpretations—legally, nothing short of a constitutional amendment can change a Supreme Court decision—as a vehicle to claim more power and to assert their prominence in public life. The federal judiciary is undoubtedly the most important judicial institution in Mexico; but it is only one of many court systems. Each of the thirtyone states and the Federal District has its own judiciary; and together these courts deal with the great majority of cases in the country.20 For a long time, the local judiciaries were the victims of even more neglect than the federal courts. It is no wonder, then, that the public still tends to see these courts as underfunded, overburdened, corrupt, and politically subordinate. Although that view may have been justified at one time, it is not justified today because all state judiciaries have started their own reform process. The change did not stem directly from the reform of the federal judiciary. According to Concha Cantú and Caballero Juárez (2001), however, after the 1994 judicial reform, the federated entities throughout the country began to experience pressures from both outside and inside their localities for the transformation of their judicial institutions. While the 1994 reform did not represent a single model of change for the whole country, it was undoubtedly a detonator that showed the evident need to reconstruct the role of these institutions. (12; translated by HFF)

The federal reform did not force any particular changes on the local judiciaries; but it did open the door for local judicial councils. Since 1995, fourteen states have established judicial councils and a formal judicial career, al-

248 Héctor Fix-Fierro ta b l e 8 . 1 Social Indicators, Mexico, 1940 and 1990 Population by type of locality (percent)

Year

Population (1,000)

Rural

Urban*

1940 1990

19,653.6 81,249.6

80 42

20 57

Life expectancy at birth Illiteracy (years) (percent) †

40 71

58 12

Employed population by sector (percent) Agriculture

Industry

Services

67.3 23.9

13.1 28.3

19.6 47.8

s o u r c e : Data compiled in Banamex-Accival (1992 –1998), using official sources. *Communities with at least 15,000 inhabitants. † Among those age 15 or older.

most all of them at the same time introducing important constitutional and legislative changes related to the judiciary. And more recently, several states —among them Coahuila, Tlaxcala, and Veracruz—have been experimenting with the establishment of a special jurisdiction for constitutional cases (see Ferrer MacGregor 2003). In short, it can be said that the reform process at the state level began in 1995 and is still unfolding today, although the depth, manner, and pace of reform vary greatly from state to state. the great transformation This section provides a brief overview of the demographic trends that have played a role, albeit an indirect one, in the process of legal and judicial reform. The data in Table 8.1 show changes in several important social indicators in Mexico between 1940 and 1990. Many of the changes in Mexican society were dramatic. In a period of fifty years, • • • •

the total population quadrupled. the ratio of rural population to urban population was inverted. life expectancy at birth increased by more than 77 percent. illiteracy among people age fifteen and older was reduced by a factor of almost 5. • more than half the economically active population transferred from the rural sector to the industrial sector and, particularly, the services sector. One need not be a keen adherent of modernization theory to see that a more complex and developed society requires a more differentiated and effective legal system. Thus, in the long run, changes like those indicated in Table 8.1 (in combination with economic and political factors) can be expected to have a deep impact on the laws and legal institutions of a society. This can clearly be observed in Mexican society after 1970, especially after 1982 (López Ayllón and Fix-Fierro forthcoming).

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an economic turnaround From about the end of World War II to the early 1970s, the Mexican government implemented a set of economic policies known as desarrollo estabilizador (stabilizing development). The main goal of these policies was the rapid industrialization of the country; and the methods they relied on—tariffs, import licenses, and quotas on imports—led to the tight regulation and control of international trade by the government. In those years, the Mexican economy managed to grow at an annual average rate of almost 7 percent, and an annual inflation rate of just over 3 percent (Kessel 1995; Sales Sarrapy 1995). This economic model began to show its first signs of exhaustion in the early 1970s. To counter this development, the government launched a policy of greater state intervention in economic affairs. At the same time, the country’s external debt and budget deficit began to increase. After 1976 came a series of financial crises, in part triggered and aggravated by political factors. The success of the desarrollo estabilizador was replaced by a period of persistently high inflation, chronic capital flight, cyclical devaluations, and recurrent budget deficits. In the late 1970s, the Mexican government had negotiated its participation in the General Agreement on Tariffs and Trade (GATT), an agreement that encouraged international trade by reducing tariffs and the like. But, in the end, President José López Portillo decided not to join. The discovery of large oil deposits in Mexico, combined with high oil prices in the world market, held out the promise of instant wealth; but the unexpected bonanza did not last. In 1981 oil prices began to fall, and by September 1982 the Mexican government, in a desperate attempt to regain control over the economy, nationalized the banking institutions. Motivated less by ideology than necessity, the government that took office on December 1, 1982, began an economic turnaround. Key to that turnaround were new policies that opened Mexico to the world market (the country finally joined GATT in 1986) and that deregulated the domestic economy. The crowning policy was the North American Free Trade Agreement (NAFTA), which was negotiated and implemented with the United States and Canada between 1991 and 1994. New economic policies required a new legal infrastructure. Between 1991 and 1996, federal laws related to different sectors of economic activity were either replaced completely or modified substantially (López Ayllón 1997, 203 ff.). However, it soon became clear that economic reform would require legal changes that went beyond strictly economic considerations. Other domestic legal institutions, among them the justice system, became the object of close scrutiny by outside actors. For example, nontrade con-

250 Héctor Fix-Fierro cerns were addressed explicitly in the NAFTA debates in the United States and Canada (see Zamora 1993). Opponents to NAFTA questioned the wisdom of a trade agreement with a country visibly lacking an effective system of justice. That concern also may have played a role in the importance accorded dispute settlement mechanisms in the agreement, mechanisms that were intended to wrest dispute resolution away from the influence and control of Mexico’s judicial institutions. Although the timing of the judicial reform in 1994 might indicate otherwise, economic considerations did not play a central role in the reform: at least in the short term, the main impact of the reform has been political. But both before and after 1994, other reforms related to the justice system—the establishment of the agrarian courts in 1992 and the overhaul of the bankruptcy law in 2000 are examples—had a more visible economic component. the demise of authoritarian rule and the paradox of judicial reform Between 1929 and 2000, Mexico was ruled by a powerful and centralized authoritarian regime built around the presidency as the ultimate source of political authority and the so-called official party—the PRI—as its main instrument for social and political control. Liberal democracy was not abolished formally, and elections were held regularly; but vote fraud and manipulation prevented other parties from effectively challenging the system in the electoral arena (Molinar 1991). Despite the PRI’s quasi monopoly on power, the regime required as a source of legitimacy a certain degree of opposition. That led to cyclical attempts to open up spaces for minority parties in the Congress of the Union. This was controlled opposition: the PRI made sure not to endanger its majority and its control of political and electoral processes.21 The electoral fraud that by all accounts took place in the presidential election of 1988 forced the new government—its legitimacy under fire— to negotiate, for the first time, electoral reform with the opposition. That reform (1990) and subsequent reforms in 1993 and 1994 revolved around the independence of the body charged with the organization of the elections, the reliability of the voters’ register, and the mechanisms for settling electoral disputes. Although the PRI was beginning to lose electoral support—it recognized the first loss of a governorship in 1989 —it was still far from willing to surrender power. Postelectoral conflicts multiplied in several states, and President Carlos Salinas de Gortari had to intervene, as an arbitrator of last resort, forcing the resignation of supposedly victorious PRI candidates and the designation of interim governors who were acceptable to the opposition.

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In 1994 came tragedy. On January 1, the same day NAFTA entered into force, an indigenous guerilla movement in the southern state of Chiapas declared war on the Mexican government. On March 23, the PRI’s presidential candidate was assassinated in Tijuana, a city close to the U.S. border. Later a prominent banker was kidnapped, and more violence followed. No wonder, then, that public security and the efficiency of the justice system became significant issues in the parties’ electoral platforms. The judicial reform of 1994 attempted to address the public’s concerns. However, the change in the composition and jurisdiction of the Supreme Court remain somewhat puzzling. Why would an authoritarian regime that always had succeeded in checking the power and independence of the judiciary suddenly be willing to grant that judiciary a higher level of authority and influence? What motivated the government to cede the enormous power it had amassed over decades? The regime had been forced to make increasing concessions to the political opposition through successive electoral reforms after 1977; but, apparently, there was no compelling reason to do the same for a judiciary that was not actively demanding a higher level of participation in the political process. It has been suggested that the 1994 reform was the result of the regime’s growing concern with the deterioration of its electoral support. According to this view, the regime promoted the reform, not only as an indication of its legitimacy, but also as a kind of political insurance policy for the bad times that might come—that is, the loss of power (compare Finkel 1997). Although it is true that the PRI’s constituency had been shrinking (Molinar 1991, 158 ff.), and that the events of 1994 might have caused worries about the election’s outcome, after winning the presidency and both houses of the Congress with a plurality of 48 percent of the vote, the PRI had no reason to believe it would lose power any time soon.22 Concern about the need to grant the Supreme Court more independence from political influence, which resulted in new requirements for the appointment of justices, might also speak in favor of the insurance-policy hypothesis.23 But the restrictions the reform placed on the Court’s new powers—for example, special voting requirements to annul legislation and the exclusion of electoral laws from the Court’s constitutional scrutiny—lend credence to the idea that the regime was not seriously seeking protection for the bad times. An alternative explanation focuses on the interests of the political actors involved in the process of democratic transition and on the types of power the reform granted the Supreme Court, including the so-called abstract review of legislation.24 With respect to the interests of the political actors, this approach posits that the Court’s new powers are used both by “reformist authoritarian politicians and by democratizing groups, respectively, (1) to

252 Héctor Fix-Fierro increase the perception of democratic legitimacy for an authoritarian regime in crisis and (2) as an anti-authoritarian strategy in the effort to effect the legal leveling of authoritarian political elites to the rule of law” (Schatz 1998, 217–18). On the other hand, if we look at the types of power the Court may now exercise, strict adherence to abstract formal justice may bring about three consequences: first, it can channel political opposition into formal legal arenas; second, it can lead to rulings against the political elite; and third, it can be used to justify restricting the judicial review of legislation in sensitive political areas (Schatz 1998, 238). Formalism in this sense would also allow the Court to avoid entanglements in partisan politics, while extending judicial review into new areas of constitutional law.25 In short, this approach would explain how the struggle for democratization was taken into the judicial arena through constitutional argument, and how the Supreme Court was brought back from its self-imposed isolation from political issues. But recourse to constitutional litigation is still a double-edged sword. A more convincing explanation is framed in terms of game theory. It begins with the assumption that the transition from an hegemonic-party system to a competitive, multiparty system creates incentives for both rulingparty members and the opposition to question the president’s political authority (B. Magaloni and Sánchez Galindo 2001). Consequently, the president is increasingly incapable of playing the role of arbitrator of last resort, and politicians have to start looking for other ways to settle their disputes. This assumption raises a question: under what political conditions would politicians allow the courts to become what Magaloni and Sánchez Galindo refer to as “constitutional veto players” (2001, 13)? 26 The answer: when they assume the courts will be subservient to the interests of the ruling politicians—that is, that the courts must decide against those who challenge the politicians’ power. This could not be known in advance, however; and formal rules do not allow players to predict outcomes. Among the different equilibria that may result from the game, the most interesting is one in which (1) the president, believing the Supreme Court will be subservient, decides to delegate power to it; (2) the Court rules against the plaintiff—this is the behavior that motivates the delegation of power in the first place; and (3) the plaintiff accepts the decision believing that it comes from an independent court. Of course, in a world of uncertainty, a court so created might decide to become independent and rule accordingly (B. Magaloni and Sánchez Galindo 2001, 17). An analysis of the Court’s rulings between 1995 and 2000 in so-called constitutional controversies— disputes between branches and levels of government—apparently confirms these assumptions. According to Magaloni and Sánchez Galindo, most rulings favored the PRI as the defendant party

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(in controversies between municipalities and state governments) and also in the few cases where the PRI appeared as the plaintiff. Moreover, many of the cases decided by the Supreme Court since December 2000, when the first non-PRI-dominated federal administration took office, also might be seen as a sign of the PRI’s continuing influence on the Court’s behavior. In fact, the new PAN government has been forced to reverse some of its most important policies and projects in the face of judicial rulings.27 On the other hand, it can hardly be said that the Court has been ruling systematically against the government: in some cases, ill-conceived or ill-defended policies gave the justices little choice. A case in point is a decision the Court made in 2002 annulling regulations the government had issued the previous year. The regulations would have eased restrictions on the generation of electrical power by private utilities.28 The controversy was not decided unanimously: eight justices voted against the administration; the other three believed the regulations were constitutional.29 However, the majority itself was divided: five justices ruled that the challenged provisions were unconstitutional, not because they went beyond the Law on the Public Service of Electrical Energy passed by a PRIdominated Congress in 1992, but because they were inconsistent with Articles 25, 27, and 28 of the Constitution.30 In effect, the justices were suggesting that the statutory provisions that allow the limited participation of private utilities in the generation of electricity also are unconstitutional. The Court’s decision has had the political effect of making a constitutional amendment necessary if the government wants to allow more private investment in the energy sector, which is a policy the administration of Vicente Fox would like to implement.31 But that kind of amendment is adamantly opposed by both the PRI and the PRD, which favor a very limited opening at the level of ordinary legislation. The Court’s ruling also makes that solution problematic from a constitutional point of view. Rather than expressing the Supreme Court’s sympathy with, or rejection of, the parties’ positions in this matter, the decision signals the Court’s willingness to place its own accent on public policy, even at the price of making political negotiations more difficult. a silent revolution One last element of the 1994 judicial reform requires examination: its roots and significance in terms of the evolution of the legal system. Remember that the Mexican legal system was experiencing dramatic change during the first half of the 1990s, the result of economic liberalization and political reform (López Ayllón 1997). That process of legal change was not restricted to substantive and procedural modifications. In fact, it can be argued that the Mexican legal system was undergoing a deep transition, a tran-

254 Héctor Fix-Fierro sition that would increase the impact of legal rules and institutions on people’s lives. In the process, the legal system would take on a new role: the law would no longer be merely a symbolic resource, but an effective means for regulating social interaction (Fix-Fierro and López Ayllón 2001b; López Ayllón and Fix-Fierro forthcoming). In other words, the law should not only institute but also regulate (López Ayllón 1995). A careful analysis of recent events in Mexican public life—postelection conflicts in the early 1990s, the Chiapas rebellion in 1994, the bank creditors’ movement in the later 1990s, the student strike at the National University (UNAM) in 1999 –2000 —shows the existence of powerful social forces. Where conflicts at one time would have been channeled to the political process, now they were being resolved through a more intensive use of legal means and institutions. The increasing orientation of social expectations toward the law can be interpreted as a sign of the growing autonomy of the legal system vis-à-vis the political system (Fix-Fierro and López Ayllón 2001b). With respect to the judiciary, most reforms between 1917 and 1987 had the purpose either of changing the appointment procedures and the terms of office of the justices and federal judges, or of adjusting the composition and jurisdiction of the Supreme Court to help it cope with its crushing workload (Fix-Fierro 1999b; see also Cossío Díaz 2001). By contrast, the 1987 reform can be said to have started a “judicial transition,” in the sense that it introduced at least three very important changes that signaled a new direction in the evolution of the courts. First, it transferred to the collegiate circuit courts the final say in so-called legality amparos—that is, the review of judicial decisions where the incorrect interpretation of an ordinary statute is concerned, not a direct constitutional violation. The reform relieved the Supreme Court from this type of case—the reduction between 1987 and 1988 was about two thousand cases— clearing the way for the Court to specialize in constitutional matters.32 Second, the 1987 reform defined minimum guidelines for the organization of local courts and the appointment of local judges. Third, the reform established the first Electoral Tribunal. Although the tribunal had rather weak powers that proved completely inadequate to handle the electoral controversies of the 1988 election (Eisenstadt 1999), it was a significant step toward the full judicialization of the electoral process that was achieved less than a decade later, in 1996. Together, these three changes point to the professionalization, technicalization, and specialization of the judicial system, a trend that has been carried further by the 1994 and 1996 reforms. Both the 1987 and, especially, the 1994 judicial reforms employ legal technology that reveals an awareness of contemporary trends in other legal systems. It is not by chance that several distinguished members of the Insti-

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tute for Legal Research of the National University were closely involved with both reforms. As Yves Dezalay and Bryant Garth (1995) describe it, the institute is an academic center known for “investing in pure law” (25 ff.) and for the importance it places on international legal developments. Thus, we can easily understand how the legal ideas cultivated at the institute were influential when the time came to modernize Mexico’s legal system and to establish a national ombudsman for human rights and other institutions. It is also apparent why several members of the institute went into the government to help launch those institutions. By contrast, the 1999 reform, proposed by the Supreme Court itself, had shorter-term objectives and lacked an understanding of the Court’s evolution toward a European-style constitutional court.

Judicial Reform in Mexico: An Assessment The assessment in this section is necessarily impressionistic and fragmentary, limited as it is by a lack of data. The assessment focuses on the reform of the federal and state judiciaries in Mexico; it does not include the tribunals that operate outside the ordinary court system. independence and accountability Judicial independence is a complex concept, comprising many dimensions both internal and external to the judicial institution. The same can be said of accountability. Therefore, we examine only a few aspects here, among them the appointment of judges, the allocation of financial resources, and existing forms of accountability. Independence. Needless to say, ensuring judicial independence is not a priority of an authoritarian regime. Of course, even in an authoritarian regime, judges are formally allowed to exercise independence in the matters entrusted to them. But the regime always devises subtle and less subtle ways to check and contain judicial independence so that it cannot stand in the way of the essential interests of the ruling elite. I have explored elsewhere how the Mexican authoritarian regime used to limit and manipulate judicial independence (Fix-Fierro 1999b). For example, the government made frequent changes in judges’ terms of office and in the courts’ jurisdiction. It also excluded politically sensitive matters (such as elections) from judicial consideration. Still, the federal judiciary, in particular the Supreme Court, enjoyed and exercised a degree of independence. In fact, often, but not always, it pushed for greater protection for citizens against government abuses, despite the amparo suit’s limitations (Schwarz 1973).

256 Héctor Fix-Fierro What independence the federal judiciary exercised was made possible in part by the existence of an informal judicial career that allowed judges to remain in office for long periods. About half the justices appointed to the Supreme Court between 1944 and 1994 had pursued a career in the federal judiciary and subsequently stayed on the Court for eleven or more years (the presidential term is six years).33 Their appointments contrasted with those of justices who left the Court after a few years, either to retire or to take moreattractive political positions. The state judiciaries were a different story. The election of a new governor usually meant the replacement of most if not all state judges. The system of local political patronage clearly traded in judgeships. Judicial independence here was little more than a theoretical possibility. The constitutional amendments of 1987 and 1994 were intended to strengthen the external and internal independence of both federal and state judges. The 1994 reform changed the rules regarding the appointment and terms of office of Supreme Court justices. Previously, the justices were appointed by the president of the Republic and ratified by the Senate, according to the U.S. model. They had to be under age sixty-five when appointed and were required to retire at age seventy. Since 1995, the president submits a list of three names for each vacant post; the Senate conducts a hearing with the candidates and then, by a vote of two-thirds, finalizes the appointment. Justices are appointed now for a single term of fifteen years (Mexican Constitution, Article 96). The new rules also are designed to discourage political appointments and the use of the Supreme Court as a springboard for other offices. The Constitution prohibits candidates to the Court who have occupied high political positions—for example, secretary of state, attorney general, member of Congress—in the year preceding their appointment (Article 95, Section VI). Likewise, a justice cannot occupy any of these positions for two years after retiring from the Supreme Court (Article 101). The 1987 constitutional amendment had already addressed the terms of state and Federal District appeals judges in an attempt to grant them more stability in office. After an initial period in office, which can vary from state to state, the judges who are ratified cannot be removed from office except for serious cause (Article 116, Section III; Article 122C, Base Four, Section I). For some time, it was customary to circumvent this provision by not ratifying sitting judges. But recently the Supreme Court granted constitutional protection (amparo) to state judges who were deprived of their office after two or more terms. The Court ruled that they had been ratified implicitly and so could not be removed from office.34 The states also have adopted provisions similar to those of the federal constitution. Many are experimenting with different options for depoliticizing

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the appointment of state appeals judges (magistrados), among them the appointment by the legislature of judges from lists of candidates selected by the local Council of the Judiciary on the basis of professional merit (for example, in Jalisco, México, Morelos, and Sinaloa); alternating the selection of judges among the three branches of government (Guanajuato); and appointment by the Council of the Judiciary with the complete exclusion of the executive and legislative (Baja California). But the position of appeals judge has not been professionalized to the extent that political and discretionary considerations do not play a role in the appointment process and in the promotion of trial judges (Fix-Fierro 1999a). Certainly these provisions are a significant improvement over earlier practice; and they may well contribute to external judicial independence. But judicial independence ultimately may rest on other political developments. There are many indications that pluralism and change in government have a much greater impact on judicial independence than do any constitutional or legal provisions related to independence (Ramseyer 1994). Since 1989, fourteen of the thirty-one states in Mexico and the Federal District have experienced a change of ruling party; and many more of them are witnessing higher levels of electoral competition and more diversity in the composition of their legislatures. These changes may mean that the automatic replacement of state judges will be a thing of the past; the selection of appeals judges may now rest on professional rather than political criteria. The professionalization of the judiciary at the federal level and in a majority of the states is also an important step toward the achievement of internal judicial independence. Traditionally, federal and state judges were appointed, for varying terms of office, by the highest court in the jurisdiction—the Supreme Court at the federal level and the respective tribunal superior or supremo tribunal at the state level—which also had the power to apply disciplinary measures or to remove judges from office.35 This gave the judiciary considerable autonomy vis-à-vis the other branches of government, but it did not ensure the internal independence of judges: that is, it did not protect them from the interference of their judicial superiors. Anecdotal evidence of the problem abounds; and it does not take a great deal of imagination to see that herein lies a probable source of internal clientelism, reinforced by the fact that judges and judicial officials spend a long portion of their professional careers within the judicial institution. The introduction of examinations (concursos de oposición) for the selection and appointment of federal and state judges since 1994 has the potential to sever or at least weaken the bonds of dependence among them. Having scored well on an examination, newly appointed judges rightly feel that they “owe” their appointment to no one. Unfortunately, we do not yet have any evidence on the impact of this new recruitment method on the performance

258 Héctor Fix-Fierro of the judicial function. Our sense is that we should not attach too much importance to the examinations alone. Judicial independence can be compromised in other ways, too, especially if the appointment system does not examine candidates’ personal traits. Another important component of judicial independence in Mexico is related to the budget process and the allocation of financial resources to the judiciary. Despite constitutional provisions to the effect that the highest federal or state court (and/or the Council of the Judiciary) prepares a draft budget each year and sends it directly to the legislature, in practice each branch of the judiciary negotiates its annual budget with the executive.36 In the future, however, as the legislature acquires more independence for itself as a result of increasing pluralism, the judicial budget may not be as dependent on the executive as it traditionally has been. This is small consolation for the chief judges and justices forced to negotiate their budgets each year. Understandably, some of them are now promoting a constitutional provision that guarantees the judiciary a fixed percentage of the federal or state budget. In fact, between 2001 and 2002, three bills were introduced into Congress by members of the PRI and PRD proposing a constitutional amendment that would give the federal and state judiciaries a fixed percentage (from 2.0 percent to 2.5 percent) of the federal or state budget.37 Although this seems to be a good idea, it could turn out to have significant drawbacks. For one thing, it may promote the establishment of still more federal courts each year (see below). In addition, persistent doubts about the quality and efficiency of the system of justice make it unlikely that the bills will be passed anytime soon. Nevertheless, the federal judicial budget in Mexico has grown significantly since the early 1980s, especially in the 1990s. Since 1995, the budget (excluding the electoral court) has almost quadrupled at constant prices (Table 8.2). That growth undoubtedly has had an impact on the independence and authority of the judiciary. In recent years, the state judiciaries have seen their financial resources grow significantly too. According to data provided by Sarre and López Ugalde (2002, 145 –46), between 1997 and 2001 the judicial budgets of all the states increased by as much as 541 percent (in nominal new pesos), with an average increase of 190 percent—this during a period when the cumulative inflation rate was less than 40 percent.38 When considered as a percentage of the state’s budget, however, judicial budgets show notable variation in each state over the period; the average lies at about 1.5 percent. In all but four states, the judiciary increases its revenue from 10 percent to 30 percent through the administration of the so-called auxiliary fund, income generated through fines and money deposits made in connection with judicial proceedings (Concha Cantú and Caballero Juárez 2001, 154 ff.).39 Also, in

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ta b l e 8 . 2 Federal Judicial Budget, Mexico, 1970 –2002 Year

Nominal new pesos

1970 1975 1980 1985 1990 1995 2000 2001 2002

109,736 265,358 1,000,017 15,168,687 257,000,000 1,385,915,000 6,723,350,703 13,207,815,516 14,700,610,906

Constant new pesos (1994)

141,161,035 193,544,553 237,623,021 355,360,221 427,476,548 1,026,618,913 2,076,389,963 3,833,908,713 4,089,182,450

Percent of federal budget

Budget per capita*

0.15 0.08 0.06 0.08 0.13 0.39 0.56 0.97 1.00

2.9 3.4 3.6 4.8 5.3 11.3 21.3 38.7 † 40.6 †

s o u r c e s : Data from Cossío Díaz (1996) and the Diario Oficial de la Federación (2002). n o t e : The figures do not include the budget for the Electoral Court. *The per capita figures are expressed in constant new pesos for 1994. The exchange rate in 1994 was MXP3.85 for USD1; in 2002, MXP10.20 for USD1. † The population for 2001 and 2002 was estimated.

recent years the state judiciaries have been receiving money from the National System for Public Security. The amount is small in comparison to the resources that the system allocates to each state’s prosecutor’s office; but it allows the state judiciaries, for example, to build much-needed courthouses and to replace their computer equipment (158). Accountability. It can be argued that judicial independence is a relative concept because it cannot be separated from the idea of accountability. Thus, we would expect that a greater degree of judicial independence and power would be coupled with more developed and effective accountability mechanisms. This appears to be the case in Mexico since the 1994 judicial reform. In this section, we briefly consider existing means for ensuring the accountability of individual judges and the judiciary as a whole. Before 1995, the Supreme Court was responsible for monitoring and controlling the behavior of federal judges.40 The individual justices were charged with conducting visits (visitas) to one of the federal judicial circuits. The purpose of the visits was to inspect the operations of the courts directly, to detect irregularities; and to receive any complaints that attorneys or the judicial staff might have. The visits were conducted with varying degrees of thoroughness and rigor. Before 1989, there were no special rules governing the visits, so they depended on the particular character and ideas of the individual justices. Additionally, district and circuit judges were seldom subjected to disciplinary measures or dismissed for bad behavior. They enjoyed protection as long as they belonged to the clientele of one of the justices. Where discipline was needed, usually it consisted of reassignment to a dif-

260 Héctor Fix-Fierro ferent city or circuit.41 In the most serious cases, however, a judge might be quietly asked to resign. According to a former Supreme Court justice, this situation was decisive in the establishment of the Council of the Federal Judiciary in 1994 (Carpizo 2000, 211 ff.). The PAN’s 1994 electoral platform contains a similar diagnosis: With the argument that the Judiciary is the ultimate guarantor of the Constitution, and, therefore, that it cannot be subjected to any other branch of power, a trend toward the complete political and functional irresponsibility of its core organs has been generated. Internal controls for the moral solvency and subjective ability for the performance of the judicial role are practically nonexistent and depend directly on the plenary session [of the Supreme Court]. It is necessary to guarantee the autonomy of the federal judiciary. At the same time, provisions should be established to ensure that judges comply with their constitutional duty. (4; translated by HFF)

The 1995 Organic Law of the Federal Judiciary created a monitoring system that is much more professional.42 It established an auxiliary agency of the Council of the Federal Judiciary called Visitaduría Judicial (Articles 98 ff.). The head of the Visitaduría is appointed by the council; the individual visitadores, however, are selected by examination from circuit and district judges. Additionally, the Organic Law contains explicit and detailed rules on the procedures for visitas, including their frequency, the registers and other instruments of internal court management that should be inspected, the handling of complaints, and the elements a report should contain.43 The Organic Law also contains explicit and elaborate provisions about the disciplinary measures to which judges and judicial officials can be subjected (Articles 129 ff.). According to the Council of the Federal Judiciary’s reports, disciplinary measures—including dismissal and the nonratification of judges—seem to be applied more frequently after the law was passed in 1995.44 Over the next three years, the council refused to ratify nine district judges and two circuit judges; only two district judges were dismissed from their posts. Unfortunately, since 1999 the council has not published detailed information in its annual reports about the disciplinary measures applied to judges.45 How accountable is the judiciary as an institution vis-à-vis other public bodies? The mere idea that the other branches of government might try to meddle in their internal affairs provokes strong reactions among judges. For example, both during the campaign and after his election to the national presidency, Vicente Fox repeatedly suggested that the judiciary should be “accountable.” Most probably, he was thinking of budgetary controls and the need for more transparency in the judiciary’s operation; 46 but some judges interpreted his statements as an attempt to control their decisions, a possibility they rightly rejected as intolerable and unconstitutional.

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The new Federal Institute of Experts on Commercial Bankruptcies (Instituto Federal de Especialistas de Concursos Mercantiles), an auxiliary agency of the Council of the Federal Judiciary, provides a good example of the limits judges place on judicial accountability. According to the Law on Commercial Bankruptcies (Ley de Concursos Mercantiles 2000), the institute, which is charged with selecting expert administrators in bankruptcy proceedings, must submit reports of its activities to the Congress of the Union twice a year. In July 2000, the institute’s governing board submitted a question (consulta) to the council, asking whether the reporting obligation was compatible with judicial independence. The council’s president—who is also the president of the Supreme Court—transmitted the question to the Court, which examined it from a constitutional perspective. In less than three months, the Court concluded that the Congress does not have the power to establish such an obligation for an institute belonging to the federal judiciary. If the institute had to report at all, it would have to report to the council and to the Court; and a copy of that report could be sent to the Congress for its information.47 There are several legal problems with the Court’s decision (see Cossío Díaz 2002, 155 ff.): the Court examined and decided the reporting issue without specific legal authority, relying instead on its role as the ultimate interpreter of the Constitution and guarantor of judicial independence, and on its authority to settle controversies within the judiciary. But the Court’s opinion in this matter is also symptomatic of the judges’ sensitivity about the issue of accountability, particularly when we consider that the Court reacted swiftly and strongly to a relatively harmless (and perhaps unreflective) provision in the law. Still, the movement toward more accountability and transparency in the operation of the courts has made significant progress in recent times. The High Comptroller of the Federation (Auditoría Superior de la Federación) —the congressional agency charged with auditing public accounts—has repeatedly made observations on the federal judiciary’s financial practices (see, for example, Detectan en SCJN 2002). In April 2002, the Congress passed the Federal Law on Transparency and Access to Public Governmental Information (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental). According to Article 7 of this law, all obligated subjects— which include the federal judiciary—have to make available to the public information regarding their internal operation, for example, the responsibilities of their units, the salaries of public officials, their budget, and the like. Beyond this general requirement, the federal judiciary has the specific obligation to publish all of its final decisions, although the parties may object to the disclosure of their personal data (Article 8).48

262 Héctor Fix-Fierro Regarding what Mauro Cappelletti (1989) calls the “societal accountability” of judges, where “account is given to societal bodies or groups, and ultimately to the general public” (79), we have shown that the judiciary’s exposure to the media and public opinion has grown. Partly in response to this exposure, the judiciary itself has attempted to enhance the news of its activities by creating public relations and press offices.49 Still, judges complain that the press is more interested in scandalous cases and that reporters generally display a deep ignorance of the judiciary and its operations. They also complain about lawyers who use the media as a tool in litigation, trying to put pressure on judges to win their cases (Concha Cantú and Caballero Juárez 2001, 221). The judiciary’s new openness and the law’s mandated transparency do not mean that the content of court decisions has become more accessible, even to lawyers. The Supreme Court, for example, sometimes cultivates a judicial style that is neither reader-friendly nor careful with the consistency of its arguments (compare Cossío Díaz 2002, 139 ff.). Although the decisions are now readily available in print and electronically, their language and structure prevent them from being incorporated into the wider discussion of public issues. Perhaps this is one of the reasons that there is no systematic professional analysis of judicial decisions. However, it is also true that the traditional legal ideas that many Mexican scholars still cultivate are of little help to judges faced with new legal issues. efficiency Several developments in the Mexican judiciary in recent years speak to the courts’ efficiency. Here we consider the most significant of them: growth in the number of courts, the judicial councils, and delays and alternative dispute resolution. Growth in the Number of Courts. The most important strategy employed by both the federal and the state judiciaries to cope with their growing caseloads and with the historical problem of backlog has been the establishment of new courts. Table 8.3 gives an overview of the growth in the number of federal courts in Mexico since 1930. The table describes the growth of the three types of federal courts: the district courts ( juzgados de distrito), the collegiate circuit courts (tribunales colegiados de cicuito), and the unitary circuit courts (tribunales unitarios de circuito).50 That growth has been tremendous. Between 1990 and 2001, for example, the number of each court at least doubled. The last three columns in the table show the ratio of courts to population. So, in 2001, there was 1 district court for every 393,000 people in Mexico. The figures here show that

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ta b l e 8 . 3 Growth of Federal Courts, Mexico, 1930 –2002 Federal courts

Population (1,000)

Year

DCs

CCCs

UCCs

Population (1,000)

per DC

1930 1940 1950 1960 1970 1980 1990 1995 2000 2001 2002

46 46 46 48 55 92 148 176 217 252 264

* * 5 6 13 21 66 83 138 154 165

6 6 6 6 9 12 30 47 56 60 63

16,552 19,653 25,791 34,923 48,225 66,846 81,249 91,120 97,400 99,100 † 100,785 †

360 427 561 728 877 727 549 518 448 393 382

per CCC

* * 5,158 5,821 3,710 3,183 1,231 1,098 705 644 611

per UCC

2,759 3,276 4,299 5,821 5,358 5,571 2,708 1,939 1,739 1,652 1,600

s o u r c e s : Data from Cossío Díaz (1996) and Informe anual (1970 –2002). k e y : DC ⫽ district court; CCC ⫽ collegiate circuit court; UCC ⫽ unitary circuit court. *CCCs were not established until 1950. † The population for 2001 and 2002 was estimated.

ta b l e 8 . 4 Workload of the Federal Courts, Mexico, 1970 –2002 DCs

Year

Courts

Workload (cases)*

1970 1980 1990 1995 2000 2001 2002

55 92 148 176 217 252 264

62,849 82,040 249,589 170,947 209,930 251,621 294,261

CCCs Annual cases per court

1,143 1,302 1,686 977 966 998 1,115

UCCs

Courts

Workload (cases)

Annual cases per court

Courts

13 21 66 83 138 154 165

29,586 37,142 78,553 112,684 252,502 267,686 253,807

2,276 1,769 1,034 1,358 1,830 1,738 1,538

9 12 30 47 56 60 63

Annual Workload cases † (cases) per court

5,749 8,448 27,419 30,770 35,740 38,987 42,537

639 704 914 655 638 650 675

s o u r c e : Informe anual (1970 –2002). k e y : DC ⫽ district court; CCC ⫽ collegiate circuit court; UCC ⫽ unitary circuit court. *The workload of the district courts includes only amparos. † The workload of the unitary circuit courts includes only appeals in federal civil and criminal cases.

in recent decades, the construction of new courts has outpaced population growth. A different picture emerges from Table 8.4, a look at the number of federal courts in Mexico, their total workload, and the number of cases each type of court handles a year. One can easily see that despite significant growth in the number of new courts, the average number of cases per court in 2002 was not very different from that in 1970. Although the courts now

264 Héctor Fix-Fierro have more human, financial, and technological resources to help them deal with their growing workload, it also is true that the cases have become more complex. In effect, then, the growth strategy over the last thirty years seems to have accomplished little. Unfortunately, we do not have data on the state courts that would allow us to make a similar comparison between the number of courts and their workloads over a period of years. There are indications, however, that state judiciaries are implementing a growth strategy as well, if only to reverse decades of almost nonexistent growth (compare Concha Cantú and Caballero Juárez 2001, 123 ff.). Judicial Councils. The enormous growth of the judiciary in recent times generated new problems in the governance of the courts—the increasing complexity of administrative tasks and their interference with the adjudicative activities of the high courts, which traditionally had been charged with the administration of the lower courts. This was especially true of the federal judiciary, whose day-to-day administration was conducted by the president of the Supreme Court with the support of two justices, elected by the other justices each year (Cossío Díaz 1992, 116 ff.). Administrative tasks in a broad sense included not only the management of the judiciary’s financial and human resources, but also all activities concerning the appointment, assignment, promotion, and discipline of the lower federal judges. By the end of the 1980s, the administrative tasks of the Supreme Court had become so complex that the Court started to issue general regulations (acuerdos) on a number of issues that until that time had been the object of informal agreement among the justices (Cossío Díaz 1996, 68 ff., 97 ff.).51 The establishment after 1994 of judicial councils for the federal judiciary, the Federal District, and fourteen states offered the opportunity to make a clear distinction between adjudicative functions and administrative tasks. Judicial councils, following the European model (Fix-Zamudio and FixFierro 1996), are charged with the administration of the judicial career as a means to strengthen judicial independence. In Europe, this meant depriving the Ministry of Justice—an executive agency— of the power to control the selection and appointment of judges; in Mexico and other Latin American countries, this power was taken away from the Supreme Court. In contrast to practice in most European countries, in many Latin American countries, including Mexico, judicial councils are also responsible for managing the entire court system. Understandably, this has been another source of conflict with the high courts, which at one time exercised management powers. The role of judicial councils as guarantors of judicial independence and especially their managerial responsibilities are controversial; and judges tend

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to have mixed—and divided—feelings about the councils. For example, in a recent survey of 120 clerks, 52 percent said that members of the federal judiciary would agree with the statement that the Council of the Federal Judiciary is a “control device that impairs their autonomy”; while only 47 percent would agree that the council is a “guarantee of self-government and external independence” (González Placencia 2002, 71).52 Still, it is a fact that the separation of adjudicative functions and administrative tasks allows for more specialized and professional administration.53 Today, even states without a judicial council are attempting to separate adjudication from administration and, generally, to evaluate and account for nonadjudicative processes (Concha Cantú and Caballero Juárez 2001, 54 ff.). A by-product of administrative rationalization has been greater control of judicial work proper. Systems to compile statistical data are being developed; and the data, in turn, are being used to measure and monitor judicial performance and productivity. Another consequence of the establishment of judicial councils vested with broad administrative powers has been the emergence of more or less open conflict with the high court in each council’s jurisdiction. We have described how the conflict between the Supreme Court and the Council of the Federal Judiciary was resolved in 1999. But even where open conflict has been avoided, the fact that the court’s president also acts as the council’s head has fostered a new type of presidential dominance that is not always balanced by the president’s colleagues on the bench.54 The Duration of Proceedings and Alternative Dispute Resolution. It is interesting that judicial reform in Mexico has focused little on the mainstays of judicial reform elsewhere: the duration of proceedings and alternative dispute resolution (ADR). It is not that judicial proceedings in Mexico are speedy—in fact, according to opinion polls, they are slow and cumbersome (see Entre abogados 1996)— or that alternatives are not welcome. It is just that these issues have not been considered as high a priority as independence and money. In their own defense, judges say that often delay is the fault of the parties, not the courts. Still, some attempts are being made to improve the speed of proceedings and to introduce ADR into the courts (Concha Cantú and Caballero Juárez 2001, 196 ff., 209 ff.), and researchers are beginning to tackle these issues. So, for example, we now have some information about the duration of debt-collection cases—from sixteen to more than forty months—in the state courts (Sarre and López Ugalde 2002, 34 ff.). Another study on debt collection in the courts of the Federal District found that the mean duration of contested cases from filing to final decision was 223 days; from decision to the start of the judgment execution was another 330 days. The study also found that changes introduced in 1996 to acceler-

266 Héctor Fix-Fierro ate proceedings did not have a statistically significant impact. The most important factor in explaining delay was the appearance of the defendant to contest the plaintiff ’s action (Hammergren et al. 2001, 59 ff.). access to the courts and legal aid Access also has been a relatively neglected issue in the field of judicial reform in Mexico. The problem of access to the courts, however, is quite real for a majority of the population, which has had to turn instead to the national ombudsman for human rights or other quasi-judicial institutions.55 Although it is true that growth in the number of courts has increased access to the courts, there is no evidence that a large sector of the population has benefited from that access. The most important barrier to the courts is the cost of legal advice and other fees. In this respect, some progress has been made, at least at the federal level. Since 1922, the Office of Federal Public Defenders (Defensoría Pública Federal) has been managed by the federal judiciary. By contrast to public defenders in the states, federal public defenders were relatively well paid and were assigned manageable workloads. In 1997, the office was transformed into the Federal Institute of Public Defenders (Instituto Federal de Defensoría Pública). The new agency was given the autonomy to decide its own programs and policies, and its responsibilities were broadened to include defending suspects during the criminal-investigation phase (averiguación previa) and providing legal orientation and advice in noncriminal areas of the federal law. Through public examinations, the institute recruits lawyers to work as public defenders, representing defendants in criminal cases, and as legal advisers, giving advice in noncriminal matters. In December 2002, the institute had a total of 509 federal public defenders (up from 215 in 1998) and 114 federal legal advisers (there were none in 1998). Table 8.5 shows the rapid growth since 1998 in the demand for the institute’s services. Notice that the number of cases involving legal advice more than tripled between 1999 and 2002. But the institute’s defenders and advisers cover only a very small portion of cases. The problem of demand remains to be solved at the state level, where public defenders—most of them recent law school graduates—have to manage impossible workloads for very low compensation. Not surprisingly, lower-court judges are very critical of the quality of the service the defenders provide. Unfortunately, there is no evidence that serious efforts are being made to implement reform here (Concha Cantú and Caballero Juárez 2001, 204 ff.). human resources Are Mexico’s judges up to the task of implementing the country’s judicial reforms? This question is not only about the personal and professional

267

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ta b l e 8 . 5 Services of Federal Public Defenders and Federal Legal Advisers, Mexico, 1998 –2002 Federal public defenders Federal legal advisers

Year

Criminal investigation

Trial and appeal

Orientation*

Advice †

Representation ‡

1998 1999 2000 2001 2002

— 57,930 65,227 66,994 74,162

48,548 50,979 52,793 55,378 58,981

— 2,428 5,397 6,993 11,801

— 889 1,894 2,847 4,784

— 991 2,215 2,935 5,186

s o u r c e : Informe anual (1998 –2002). n o t e : In 1998, the defenders had yet to begin defending suspects during the criminal-investigation phase; and there were no legal advisers. *The institute has no jurisdiction over the matter; the legal adviser refers the client to a competent agency. † In this instance, the adviser assesses the possible intervention of the institute. ‡ The institute grants full service: legal advice and representation.

ta b l e 8 . 6 Supreme Court Justices with Previous Experience in the Federal Judiciary, Mexico, 1984, 1993, and 1996 Justices with previous experience in the federal judiciary

Total Clerk at Supreme Court District judge Circuit judge Average seniority (years)

1993 (N ⫽ 25)

1984 (N ⫽ 26)

1996 (N ⫽ 11)

Number

Percent

Number

Percent

Number

Percent

16 14 8 11

60 54 31 42

13 12 8 10

52 48 32 40

8 8 7 7

73 73 64 64

27

27

24

s o u r c e s : Data from Diccionario biográfico (1984) and Directorios biográficos (1993, 1996).

abilities of the judges. It is fairly clear that the society’s new expectations of the courts are forcing judges to be more accessible, more open, and more responsive. It speaks to the incentives for judicial performance given the system’s organizational constraints. Before we talk about those incentives, we should take a look at the professional background of the Supreme Court justices. Table 8.6 shows that the percentage of justices who came to the Court with judicial experience remained relatively constant between 1984 and 1993, but rose appreciably between 1993 and 1996.56 The fact that after the 1994 reform the judicial component became more, not less, accentuated is somehow at odds with the changes that have at-

268 Héctor Fix-Fierro tempted to give the Court a more clear profile as a constitutional court according to the European model (compare Cappelletti 1989, 136 ff.). Legal scholars point out several reasons—political and institutional—that in the Continental legal tradition, ordinary judges are not well suited to the exercise of judicial review. In the civil law tradition, judges are career bureaucrats who are supposed to strictly apply the laws passed by the legislature. Their role historically has been neutral, apolitical, and passive. It takes a very different type of person and court to challenge the constitutionality of executive and legislative actions. That is why so many systems of justice have established special courts to settle constitutional questions, questions that involve a strong political component. At the same time, judges sitting in constitutional courts, unlike ordinary judges, are appointed for limited terms of office by the political branches of government and from a pool of lawyers (public officials, legal scholars, practicing attorneys, and career judges) who are supposed to have both special knowledge of constitutional issues and political sensitivity (compare Cappelletti 1989, 138, 142 ff.). It is true that Mexico can look back on a tradition of more than 150 years of judicial review through the amparo suit. But despite the amparo’s effectiveness as an instrument for the protection of constitutional rights, it is a proceeding with significant limitations. Although it was designed as a quick and simple device, the amparo has become a very complex and technical mechanism that performs several functions, including reviewing all of the decisions of ordinary judges (the judicial amparo). In fact, during the greater part of the twentieth century, Mexico’s Supreme Court faced an impossible task—that is, overturning rulings that had much less to do with constitutional violations than with a judge’s misinterpretation of the law. Forced to deal with crushing workloads, the Court produced an elaborate doctrine on the jurisdictional and procedural aspects of the amparo suit. But in the process of attempting to regulate access to the amparo suit, the Court ended up producing weak and underdeveloped doctrine on other important constitutional issues. As a former circuit judge and present Supreme Court justice puts it: “As long as the role of ‘supreme interpreter and guardian of the Constitution’ remained covered and suffocated by mountains of ‘legality’ amparos . . . the serious practical flaws and limitations of our system of constitutional control were hidden, or disguised at least” (Gudiño Pelayo 1991, 265).57 The judicial reforms of 1987 and 1994 were intended in part to redirect the Supreme Court’s role toward the development of a more active constitutional doctrine. Which raises the question: Are judges trained in the narrow, technical, and formal aspects of the amparo well suited to decide very different constitutional issues? In analyzing Supreme Court decisions after 1995, one gets the impression that the justices have been more successful at claiming new power and

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independence for themselves and the federal judiciary than at developing criteria for constitutional interpretation. According to Cossío Díaz (2002, 141 ff.), the Court is using its status as a “constitutional court” as the basic, and rather hollow, justification for many of its decisions, especially the most controversial ones. It is not that those decisions are necessarily wrong: most are probably sound from a constitutional point of view. But the justices seem to reach their decisions more by intuition than by finding support in constitutional theory. The result is sometimes a disquieting flip-flop of decisions. With respect to the selection and appointment of lower-court judges, it is too early to assess the consequences of the examination system on their personal and professional profiles, partly because the new system has not been used in a consistent manner.58 After 1994, and as a consequence of the 1999 reform, the Council of the Federal Judiciary has introduced changes into the judicial selection and appointment process. In 2000, a training program was established for candidates for district and circuit judgeships. It is an intensive seven-month program, comprising more than one thousand hours of training, including a wide variety of courses and practical activities. The program has a theoretical orientation because it is assumed that the candidates already have a well-developed knowledge of the practical aspects of adjudication (Báez Silva 2001, 38). This is undoubtedly a step toward making such courses a requirement for appointment. The council has determined that the admission examination for the training program is equivalent to the first stage of the examination for appointment, provided a candidate successfully completes all courses and training practices.59 Perhaps the most worrisome development with respect to the new appointment system is the high turnover rate that has resulted from the accelerated growth of the federal judiciary. Table 8.7 shows the number of appointments made by the Council of the Federal Judiciary to the district and circuit courts from February 1995 to December 2002. Excluding the eleven justices sitting on the Supreme Court and the judges on the electoral court, at the end of 1995 there were 472 federal judgeships (176 district judges and 296 circuit judges). At the end of 2002, this number ta b l e 8 . 7 Circuit and District Court Appointments, Mexico, 1995 –2002 Judges

District court Circuit court

1995 *

1996

1997

1998

1999

2000

2001

2002

Total

28 14

62 52

60 32

0 11

97 97

85 70

80 44

78 67

490 387

s o u r c e s : Web site of the Council of the Federal Judiciary (www.cjf.gob.mx, accessed September 12, 2002) and Informe anual (2002). *From February through December.

270 Héctor Fix-Fierro had grown to 822 (264 district judges and 558 circuit judges), an increase of 74.1 percent. Over the same period, however, a total of 490 district judges (185.6 percent of the total number of district judges at the end of 2002) and 387 circuit judges (84.5 percent of their total number at the end of the same year) were selected, either by examination or by direct appointment, because of the urgent need to appoint new judges. In so-called internal examinations (concursos internos), district judges are recruited from among clerks working in the federal courts, and circuit judges are recruited from the ranks of district judges. Although clerks appointed as district judges, on average, have no less experience than they had in 1984 (see Table 8.8), the constant need for new circuit judges has resulted in the lowering of experience requirements. In one of the examinations, for example, candidates for a circuit judgeship were required to have just one year of experience as a district judge. The problem is compounded by the fact the federal judicial pyramid is inverted: that is, there are more circuit judges than district judges (about twice as many), which ultimately means that there is no real selection process for becoming a circuit judge. It also means that it has become more pressing to find a high number of qualified candidates for district judgeships. This was confirmed at the beginning of 2000, when the Council of the Federal Judiciary decided to open the first examination for the appointment of fifty district judges to candidates from outside the federal judiciary, especially those from state judiciaries. However, only three external candidates were appointed, a scholar and two attorneys (Báez Silva 2002, 97). At the end of 2002, the Council of the Federal Judiciary planned to conduct another examination for the appointment of district and circuit judges open to candidates who are not members of the federal judiciary. It is unlikely, however, that a large number of such candidates will be appointed because members of the federal judiciary, who may also participate, naturally enjoy many advantages. Certain characteristics of judges could help us identify the degree of change, or stability in the recruitment process and the attitudes of federal judges. Fortunately, we have interesting data that may be useful here. Table 8.8 presents a statistical profile of district judges in 1984 and 2002. The table shows important changes between 1984 and 2002: • The number of women increased, but their proportion in the district courts was still less than half the percentage of women in law school— 48.4 percent in 2001 (ANUIES 2001). • District judges in 2002, on average, were younger when they entered the judiciary and at the time of their appointment to the district court. • Their seniority in office was shorter than in 1984, a consequence of the pressing need to appoint circuit judges.

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ta b l e 8 . 8 Personal and Professional Profiles of District Judges, Mexico, 1984 and 2002 Characteristics

Women (percent)

1984 (N ⫽ 97)

2002 (N ⫽ 257)

6.6

23.0

Age (years) Average At entrance into the judiciary At appointment as district judge

44.8 29.4 40.4

42.3 26.8 39.8

Seniority (years) In the federal judiciary At appointment as district judge In office In present assignment

15.1 10.7 4.4 3.0

15.2 12.2 2.4 n.a.

Judicial career (percent) Judicial officer Court executor Clerk at district court Clerk at circuit court Clerk at Supreme Court

14.4 42.3 50.5 59.8 80.4

32.3 59.1 64.6 87.5 24.5

Legal training Schools (number) Graduates of public universities (percent) Graduates of National University (UNAM) (percent)

21 95.7 35.1

42 87.8 27.5

Assigned to place of birth (percent)

20.6

17.9

Father’s occupation (percent) Lawyer Professional (all) Merchant Public servant/employee Worker, artisan Peasant/farmer Entrepreneur Other

11.3 22.3 28.7 17.0 10.6 13.8 5.3 2.1

13.3* 26.0 21.8 26.0 15.2 9.0 1.2 0.6

Practice outside the judiciary (percent)

57.7

53.3

s o u r c e s : ANUIES (2001); Diccionario biográfico (1984); Directorios biográficos (1989, 1993); and the Web site of the Council of the Federal Judiciary (www.cjf.gob.mx, accessed in May and June 2002). k e y : n.a. ⫽ not available. *In this category, N ⫽ 162.

• A very significant change concerns the judicial career: a larger proportion of district judges in 2002 had occupied different judicial posts and, in contrast with 1984, a majority of them had not been clerks at the Supreme Court. For practical purposes, this may mean a reduction of the Court’s influence on the selected candidates. • The vast majority of district judges are graduates of public universities, but the percentage is falling. Given the extraordinary growth of private

272 Héctor Fix-Fierro institutions in the 1990s, we can expect a significant increase over the next ten to fifteen years in the number of judges who are graduates of those schools. Table 8.8 shows important changes between 1984 and 2002; it also shows certain remarkable similarities: • As noted above, most district judges are graduates of public universities, a large proportion of them from the National University (UNAM). • The percentage of district judges assigned to their place of birth is still relatively small, another sign of the judiciary’s high internal geographic mobility. • Judges’ social class—as indicated by father’s occupation—has not changed appreciably in almost twenty years. • A consistently large proportion of judges have had some professional experience before joining the federal judiciary. In short, the federal judiciary is becoming more pluralistic and diverse; at the same time, it preserves some of the basic features of the judicial career before the 1994 reform.60 An excellent empirical study recently conducted at the Institute of the Federal Judiciary (Instituto de la Judicatura Federal) also gives a mixed picture of change and continuity in judicial attitudes (González Placencia, 2002). Using two models of the judicial process, one defined in traditional terms (a weak, formal, or conservative judiciary) and one characterized by contemporary features (a strong, substantive, or innovative judiciary), the study attempted to identify the attitudes and opinions of federal judges through answers to a questionnaire submitted to 120 clerks of all judicial categories. The attitudes and opinions refer to four elements of the judicial process—fairness, independence, the unity of the judiciary, and accountability—in both internal and external dimensions (63 ff.). The main finding was that among members of the federal judiciary, there is a higher degree of identification with the formal, weak, or conservative pole (53.3 percent of the sample). Interestingly, no significant statistical correlation could be identified between these attitudes and gender, marital status, seniority, training, and other variables. This could mean that those variables would not stand in the way of a change in judicial attitudes. However, the study’s author concluded that if no account is taken of the obstacles that may be generated by a legalist attitude towards the judicial process, by a judge dependent both on her “morals” and on her capacity as a subordinated official, and by non-controlled discretion, then the professionalization model that has been implemented in the last few years may produce rather limited results. (80)

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With respect to the state judiciaries, all but four have established their own training institutes and centers (Concha Cantú and Caballero Juárez 2001, 10, 277). In some states, courses at the training institute are required for appointment, and the institute itself prepares and applies the respective examinations. Many states have signed cooperation agreements with the local law schools. One cooperation modality involves the participation of judges and judicial officials in master’s and similar programs organized by local universities and other institutions of higher education. The judicial career signals the use of new criteria in the selection and appointment of judges. It makes the judiciary more open, better qualified, more independent, and more accountable. At the same time, it is less prone to clientelism, cronyism, and political manipulation. But it is doubtful that the training programs that are being implemented as a requirement for appointment to the bench can succeed alone in fostering new thinking among judges about the role of adjudication in society. For one thing, these training programs are still in their infancy; they are just beginning to incorporate new ideas and methods specifically tailored to the needs of the judicial process (compare Concha Cantú and Caballero Juárez 2001, 278). Training programs that merely reproduce the traditional methods of legal education can hardly contribute to the emergence of a different judicial mentality. Finally, adequate salaries are a factor in attracting young, well-trained, and ambitious lawyers to the judiciary.61 For a long time, judicial salaries in Mexico were among the lowest for public officials performing high-level duties. However, the increase in judicial budgets has brought about a significant increase in the level of compensation for both federal and state judges. At the end of 2001, for example, the monthly after-tax salary of federal district judges ranged from USD7,700 to USD9,300; and the monthly compensation for federal circuit judges ranged from USD9,300 to USD12,600 (Báez Silva 2002, 115). These are good salaries, especially in a country like Mexico, where public officials traditionally receive very low pay and where per capita income is about USD6,000 a year.62 Beyond judicial training and salaries, however, there is little evidence of change in the existing incentives judges have for settling disputes without solving them. Still to be addressed are several key factors, including workloads, internal work routines, and attorney behavior.

Judicial Reform in Mexico: Challenges and Perspectives It should be fairly evident from the previous sections that judicial reform in Mexico is not primarily the result of foreign pressures or of the intervention of international development agencies: neither has played a significant role

274 Héctor Fix-Fierro so far. Its roots run much deeper, and that is a source of both weakness and strength in the reform process. It is a source of weakness insofar as the reform process has never proceeded on the basis of empirical analysis nor benefited from a systematic approach. In a sense, it has been a random process resulting from other changes. Therefore, it has lacked the definition of reform strategists and stakeholders. But the central idea behind Zedillo’s December 1994 bill was and is essentially correct: political and economic change required a second wave of reforms aimed at the system of justice (see CIDAC 1994, chap. 1). This is why the rule of law appeared so prominently in the National Plan for Development 1995 –2000 (Secretaría de Hacienda y Crédito Público 1995, chap. 2). The 1994 judicial reform was supposed to be a first step toward strengthening the rule of law, but the financial crisis of 1995 redirected the government’s reform impulses in view of more-pressing goals. Still, the 1994 reform started things rolling in the states. And in the long term, its impact will be more profound than appeared at first. If it is true that judicial reform in Mexico has been a response to social demands and expectations—not only to the interests of academic, political, and legal elites—then we can be fairly confident that the reform process will continue, albeit at its own pace and following its own logic. What remains to be done? How likely is it to be done? Answering the first question is not difficult. It simply involves drafting a list of areas for reform: • • • • • •

Access to the courts and the institutions of justice Accountability and transparency Procedural reform, including ADR The relationship between federal and state courts (amparo judicial ) Legal education, including schools for judicial training The legal profession

The relationship between the federal and state courts merits a brief comment because it may become a prominent issue in the near future. As already mentioned, through the amparo suit the federal courts can review all decisions of state courts, and a high but unknown number of those decisions are actually reviewed. However, the present situation is perceived as unsatisfactory by both federal and state judges. The former complain about evergrowing caseloads and say that by correcting errors made in local judicial decisions, they are forced to do the job of state judges. The latter also have a number of complaints, ranging from the small percentage of amparos that are granted to the declining quality and growing inconsistency of federal judicial decisions (Concha Cantú and Caballero Juárez 2001, 164 ff.; Fix-Fierro

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2001). Therefore, they argue that the time has come for reclaiming the autonomy they lost to the federal courts at the end of the nineteenth century. Unfortunately, discussion to date on this topic has not been based on solid empirical evidence and a systematic analysis of viable solutions. Clearly, both federal and state judges are speaking out from their narrow interests, but there are other relevant interests involved, among them those of attorneys, litigants, and society at large. So, for example, a recent survey conducted by the newspaper Reforma among attorneys, law firms, and bar associations in twenty-three states shows that an overwhelming majority of respondents (86 percent) favors the status quo, and that only a small minority would like to see the amparo as a means for challenging state judicial decisions restricted or completely suppressed (Serna de la Garza 2003, 275). If no radical solutions are possible or wanted, perhaps Mexico should aspire to a judicial organization like that of the United States, in which the bulk of cases are handled efficiently and fairly by the state judiciaries, while the federal courts, in addition to hearing federal cases, exert only selective control over state judicial decisions. For this to happen, of course, state judiciaries—and the legal profession—must be perceived as trustworthy and effective by society at large (Fix-Fierro 2001). Also, judicial reform of this sort requires much more communication and cooperation between federal and state judiciaries. Legal education and the legal profession also merit discussion here because they are not usually a part of the discourse on judicial reform. But it can be easily argued that both have significant consequences for that reform. In Mexico, legal education is very traditional. It is stagnant, still focusing on legal-theoretical models of the nineteenth century. Many professors have not stayed current with knowledge in the field; and the older ones are barely familiar with modern teaching techniques. Yet by many accounts, legal education in Mexico was satisfactory until the late 1960s and early 1970s, when enrollment in public law schools began to grow dramatically, resulting in a marked decline in quality (López Ayllón and Fix-Fierro forthcoming). How much do the failings of legal education affect the performance of the judiciary? We do not know for sure, but we can safely assume that a weak education does not contribute to building a more open and responsive judiciary. Although the system can use internal training to replace the outdated legal models students absorb during their stay in law school, that is at best a stopgap measure. Consequently, there are strong reasons to believe that judicial reform—and, more generally, the modern rule of law—has much to gain from reform of legal education. But this is easier said than done. Consider, for example, that law is the most popular area of study among Mexican students: about 190,000 students in 2001, well above the numbers in accounting and business administration.63 The number of law schools, especially small private schools, exploded during the 1990s (López Ayllón and

276 Héctor Fix-Fierro Fix-Fierro forthcoming). Although they require some sort of official recognition to issue law degrees, in truth there is no real control over the content and the quality of the education they provide. There is nothing equivalent to a bar examination in Mexico, so a university degree (and in certain cases, not even that) is all it takes to become a practicing lawyer. It is easier to make the case for reform of the legal profession because lawyers’ behavior has a direct impact on the judiciary’s performance. Mexican judges complain that attorneys can be the most significant external obstacle to the operations of the courts. They refer to the attorneys’ lack of professional knowledge and to questionable practices, like using the press to apply pressure on the courts. A majority of civil and criminal judges interviewed for the Concha Cantú and Caballero Juárez study (2001) thought that attorney training and performance were “poor” or “bad” (188, 215 ff.). Mandatory bar affiliation has been proposed as a means of controlling lawyers’ behavior and performance. Since the 1930s, the Barra Mexicana Colegio de Abogados, the most prestigious of Mexican bar associations, has debated the issue on several occasions. No conclusion has been reached yet, and even the considerable number of lawyers who favor mandatory affiliation concede that it will not be a panacea for the profession’s ills (Barra Mexicana, Colegio de Abogados 2002, 61 ff., 78). If, for whatever reason, mandatory affiliation was to become a prominent topic on the public agenda, it probably would not provoke too much resistance: lawyers’ professional organization is not strong, and good lawyers may be ready to see their profession regulated somewhat. Why have legal education and the legal profession been left out of the sweeping changes introduced in the Mexican legal and judicial systems over the past two decades? Why are reforms in these two areas absent from the public agenda? One possible answer lies in the autonomy and privacy accorded both institutions. Again, public and private law schools have to satisfy certain requirements to obtain recognition from the government and the right to grant law degrees. But those requirements are not very demanding, and, beyond them, the schools enjoy a large degree of autonomy to decide the type and quality of education they provide. And the legal profession— or at least practicing attorneys—is not highly regulated by the government or by professional associations. Furthermore, lawyers seem able to deflect attention from their professional performance. If a case is lost and the “criminal” set free, or if an “innocent” is sent to prison, the public blames the judge, not the attorney. Finally, the fragmentary and unsystematic character of many reforms has effectively placed legal education and the legal profession well beyond their immediate objectives. We asked above about the likelihood of additional reform of the judicial system. Certainly the failings of legal education and the legal profession in

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Mexico, as well as the trajectory of past reform, have an impact on the possibility of further reform. The new political stage, on which no party holds a majority in Congress (and that may not change in the near future), and the important role the judiciary has claimed for itself on that stage make it unlikely that sweeping changes of the sort passed in 1994 will be carried out again. Therefore, we are more likely to see smaller, incremental changes. In the end, what is at stake is less the success of judicial reform, narrowly defined, than a new definition of the role of the courts in Mexican society. It is society that ultimately will determine how far judicial reform should go and where investment in judicial reform yields the highest returns.64 We can hardly doubt that in the long run, society will get more or less what it expects. It is just the present situation that seems so ambiguous and contradictory. Despite society’s demands for more-substantive justice, as opposed to formal justice, the incentives for judges and lawyers to provide that justice have not been fundamentally altered so far. The people also demand and expect the courts to distinguish right from wrong, to be the “guardians of (democratic) promises” (Garapon 1996); but at the same time, according to opinion polls, they deny the courts their trust and confidence. Is this a motive for pessimism? Certainly not. We recently have lived through other changes, like the peaceful end of the PRI regime, that seemed impossible just ten or twenty years ago; and in a short time we have come to take them for granted. Why should judicial reform be different?

Notes This is a revised and enlarged version of a paper prepared for the Rule of Law Workshop: Legal and Judicial Reform in Developing Countries, Stanford Law School, February 26, 2001. I am indebted to Erik Jensen for his valuable questions and comments, but most particularly for his patience. 1. In his book on the exercise of presidential powers, former president Miguel de la Madrid (1998) dryly states: “Respect of the integrity and independence of the judiciary was a norm of my administration. In the first days of my term of office, I visited the Supreme Court of Justice to inform that branch of power about my intentions to contribute to make it stronger. I made it a custom to attend the annual report of activities of the President of the Supreme Court, in correspondence to his habitual attendance of the President’s annual report before the Congress of the Union. . . . During my administration I respected the budgetary powers of the Federal Judiciary. Their salaries and the resources for the improvement of their facilities were substantially increased” (24 –25; translated by HFF). From this account, one might be tempted to think that the president’s personal convictions or whims were

278 Héctor Fix-Fierro the main reason behind the increase in funding to the judiciary. However, it is a fact that the de la Madrid administration (1982 –1988) not only started Mexico’s economic liberalization policies, but also pursued a systematic policy of legal and judicial reform. See also Sáenz Arroyo (1988, 137–296). 2. One example among many is the 1998 decision of the Supreme Court that upheld, with some qualifications, the legality of interest capitalization in credit contracts with banks. Technically, the Court was just deciding which of the contradictory interpretations by the circuit courts should prevail; its decision would not affect cases already decided. However, the case was presented to the public as an epic battle that would decide the fate of 10 million impoverished debtors versus that of a couple of rich bankers. See Semanario Judicial (1998, 5, 6, 335, 365 – 84). Three justices wrote a dissenting opinion, citing equitable considerations. 3. In 1995, Ernesto Zedillo, the president of the Republic, announced that he would submit to Congress a new law of amparo; he never did. 4. He went on: “Furthermore, it is a political scandal that in a State that is increasingly developed, even a member of the OECD, its courts of justice remain at the bottom of public budgets and, as a consequence, are not very different from those at the beginning of the century. . . . This is the time to demand generous action from the Chamber of Deputies that stays away from partisan interests in order to achieve solutions that take into account the general interest” (21). 5. This is slowly changing. For a first evaluation of the agrarian courts established in 1992, see Zepeda Lecuona (1999). Concha Cantú and Caballero Juárez (2001) published the first comprehensive study of the state judiciaries. See also Sarre and López Ugalde (2002), who evaluate the state judiciaries’ effectiveness in the collection of money debts. A similar study by the same sponsoring organizations was conducted in 1999. 6. On July 14, 1994, Zedillo, then presidential candidate of the ruling Partido Revolucionario Institucional, made an important campaign speech in Guadalajara, in the Mexican state of Jalisco. The speech delineated “ten proposals for a new security and justice system.” Six of the ten proposals addressed crime control and other issues of criminal justice (see Zedillo 1994). 7. See the press reports in La Jornada, Reforma, and Excélsior in December 1994, especially A. L. Magaloni (1994) and Arteaga Nava (1994). 8. Without explicitly saying so, both the PAN and the PRD were reacting to an increasing perception of corruption in the federal judiciary. Cossío Díaz (1996, 72) reports a considerable increase in the number of complaints for improper behavior against federal judges between 1991 and 1992 (58 –165). 9. This was confirmed by Díaz Romero (1997, 32 ff.), a justice of the old Supreme Court who was reappointed in 1995, and by Cossío Díaz (2002, 63), at the time an adviser to the Court’s president. In February 1994, one of the justices had circulated a document (a copy is on file with the author) containing his opinion on the reform proposals by the Governance and Administration Committee of the Supreme Court. The document found two major flaws in the proposals: first, they were very general and lacked supporting data; second, they were limited to procedural changes in amparo matters, disregarding the need for “substantial transformations”

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that the community had expressed. The working group set up by Zedillo to examine the issue adopted some of the justices’ proposals and rejected others, notably those concerning the governance and administration of the federal judiciary. 10. The first Supreme Court, established after independence in 1821, was composed of eleven justices. The number was increased to sixteen in 1900 and then reduced to eleven in 1917. Additional justices were added to the Court in 1928, 1934, and 1950 as a means of dealing with backlog (see Fix-Zamudio and Cossío Díaz 1996, 132 ff., 155 ff.). The contention that backlog was almost “nonexistent” admits of some qualification. On December 1, 1994, the Court still had 2,366 cases pending on its docket (Informe anual 1995, anexo, 429). Of course this is a far cry from the backlog of almost 38,000 cases that had accumulated on the Court’s docket in the 1950s (FixZamudio and Cossío Díaz 1996, 583). 11. That the federal judiciary and the Supreme Court were not immune to corruption was shown by a notorious case in the late 1980s, in which two circuit judges were dismissed and prosecuted because they had accepted money for an acquittal in a murder case. Criminal charges also were brought against a Supreme Court justice, who resigned and fled the country. He recently was arrested in Texas and is awaiting extradition to Mexico. 12. Granados Chapa added that it was preferable to impeach individual justices. 13. On the contrary, the legal abilities of at least seven of the justices were questioned because they had made “political” rather than “legal” careers (see Evitar el uso 1994). One former justice, Salvador Rocha Díaz, who had resigned his post to become a senator, was quoted as saying that “political appointments” were not a significant problem. But because in the eyes of some people those appointments might distort the Court’s performance, he believed the proposed changes were “healthy” (Niegan excesos 1994). 14. In Mexico, affiliation with a bar association is not mandatory for practicing lawyers. Therefore, the existing bar associations (barras or colegios de abogados) are relatively weak organizations, and their commitment to the advancement of the profession and the rule of law is shaky at best. According to Concha Cantú and Caballero Juárez (2001, 217), many state chief judges believe that bar associations are rather organizations with political goals. They argue that the barras do not perform any significant role with respect to the administration of justice and the legal system of the states. 15. Of course, the Supreme Court had tried to make a virtue out of its public invisibility: “Judicial work cannot lend itself to grandiloquence or to protagonistic eagerness” wrote the president of the Court in the 1992 annual report (translated by HFF). 16. See, by contrast, A. L. Magaloni (1994); and Arteaga Nava (1994). 17. As of 1994, only one Mexican scholar (Héctor Fix-Zamudio) had been insisting on the need to establish judicial councils and had published several essays on this institution. See for example Fix-Zamudio (1992). 18. Some of the most distinguished constitutional scholars have criticized this amendment. See, for example, Carpizo (2000); and Cossío Díaz (2001).

280 Héctor Fix-Fierro 19. The justices seem more willing today to give lectures and to hold press conferences, and to express their views in academic and other nonjudicial publications. The Supreme Court regularly publishes reports on the discussions—public and private—that led to their decisions in major cases; it also publishes a bimonthly magazine (originally Legis Verba, now Compromiso), which provides general information on the federal judiciary, and maintains a Web page (www.scjn.gob.mx). It even has published a comic book for the general public, explaining in a simple way what the federal judiciary is and what it does. 20. In addition to the courts of the Judicial Power of the Federation (Poder Judicial de la Federación), there are federal tribunals that are judicial in nature and enjoy autonomy in rendering their decisions, but that formally are a part of the executive branch: The Federal Board for Conciliation and Arbitration ( Junta Federal de Conciliación y Arbitraje) was established in 1931 to resolve employment and labor disputes in the industries that are subject to federal jurisdiction—for example, the textile, mining, and oil industries. The Federal Tribunal for Conciliation and Arbitration (Tribunal Federal de Conciliación y Arbitraje), established in 1963, settles labor disputes between the federal and Federal District governments and their employees. The Federal Tribunal for Fiscal and Administrative Justice (Tribunal Federal de Justicia Fiscal y Administrativa) was created in 1937 to settle tax disputes between taxpayers and federal authorities; today it enjoys a much broader jurisdiction in administrative matters. The Agrarian Tribunals (Tribunales Agrarios) were established in 1992 to resolve all kinds of disputes related to land and property. Finally, there are also the military courts, which are formally a part of the armed forces. Recently there has been discussion about the possibility of incorporating these tribunals, with the exception of the military courts, into the federal judiciary. 21. A brief summary of the electoral reforms implemented between 1963 and 1996 can be found in González Oropeza (1999, 47 ff.). 22. The PRI eventually lost control of the Chamber of Deputies in 1997. 23. Ramseyer (1994) contends that politicians favor judicial independence only when there is a likelihood of their losing power. 24. This type of judicial review of legislation is called abstract because it does not originate in an actual controversy (compare the cases and controversies requirement in Article III of the U.S. Constitution). In an abstract proceeding, the plaintiff (usually a congressional minority or a political party) does not have to show an injury to its interests to have standing, just a possible contradiction between a general rule and the Constitution (see the Mexican Constitution, Article 105, Section II). 25. There is in Mexico a tradition of “settling disputes without solving them,” to borrow the title of an essay by A. L. Magaloni and Layda Negrete (2000). That is, the formal interpretation of procedural requirements results in the dismissal of a great proportion of complaints without any decision on their merits. For example, the dismissal rate of amparo suits before Federal District courts in the early 1990s was almost 80 percent (Centro de Investigación para el Desarrollo, A.C., CIDAC, 1994, chap. 2). CIDAC’s study showed a clear correlation between the dismissal rate of complaints and the courts’ workload and backlog. Thus, dismissal (sobreseimiento) was used as an escape valve for growing workloads in the face of financial restrictions on

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the establishment of new courts and the hiring of more staff. But it is not always the judges who are responsible for this development. Litigants and attorneys start amparo proceedings with the aim of delaying other decisions and imposing greater costs on the other party. They do not seek a final decision, just a suspensión, a provisional measure that paralyzes the challenged government action. This is, for example, the case with cars that have been illegally imported into the country. A suspensión allows the car’s owner to circulate for a few months more. A favorable decision on the merits is simply out of the question. If we look at the Supreme Court, we may find that since 1995, a significant portion of actions against legislation (around 20 percent) and of controversies between levels of government (more than 40 percent) have been dismissed by the Court for procedural reasons. Although in some cases, the court is exercising a deliberate policy; in others, the complaining party has been careless. 26. This applies mutatis mutandis to the electoral court. 27. For example, the Court ruled against the administration’s decree establishing daylight saving time (the plaintiff was the government of the Federal District). It also ruled against the temporary suspension of the taxes on products using fructose instead of sugar (the plaintiff here was the Congress). It was even reported in the press that the government was forced to cancel the construction of the new Mexico City airport because, among other reasons, some of the Court’s draft decisions (which are no longer published) were contrary to the government’s interests. Finally, although it is not clear that the Court’s latest decision on the so-called Indigenous Amendment to the Constitution passed in 2001 (the Court denied itself the power to review a constitutional amendment, even on formal and procedural grounds) is directed against the government, it certainly could cause considerable political trouble. 28. Controversia constitucional 22/2001, decided on April 25, 2002. The full opinion, together with concurring and dissenting votes, was published in the Diario Oficial de la Federación on June 3, 2002. See the critical essay on this decision by Cossío Díaz and Cortés Campos (2002). The regulations had defined, on the basis of existing legislation, the amount of power that could be generated by private utilities and the conditions for its sale to the Comisión Federal de Electricidad. 29. This was a departure for the Court: as many as 90 percent of the Court’s cases are decided by unanimous vote. Also, it should be noted that the Constitution (Article 105, Section I) requires the vote of at least eight justices to invalidate a law. 30. The Senate, which had challenged the regulations, cited the electrical energy law. Cossío Díaz and Cortés Campos (2002, 31) criticized the decision, contending that the Court unduly redefined the controversy in order to introduce its interpretation of Articles 25, 27, and 28. 31. To add another twist to this twisted story: In 1999, President Zedillo sent a bill to the Congress proposing that the energy sector be opened to private investment, in terms very similar to those being proposed now by the Fox administration. The bill received the support (albeit the reluctant support) of his party, the PRI, but was opposed by PAN and PRD and so did not pass. 32. The reform also granted the Supreme Court more powers for the governance and administration of the federal judiciary, particularly the power to establish new lower federal courts—a growth policy.

282 Héctor Fix-Fierro 33. According to an unwritten rule, the president of the Republic made about half the appointments to the Supreme Court among the members with a judicial career. 34. Among similar decisions, see Amparo en revisión 2021/99. Some states now follow the federal model, allowing a single nonrenewable period in office for state appeals judges. 35. Until 1994, an informal judicial career existed in the federal judiciary: Young recruits would ascend an internal hierarchy of judicial posts up to the position of clerk (secretario) of the Supreme Court. From there, they could be appointed district or, occasionally, circuit judges by the Court, at the proposal of one of the justices. For an excellent description of the merits and flaws of this system, see Cossío Díaz (1996). In the states a similar system was in use, although it was much less stable. 36. Interestingly, about 14 percent of judges interviewed by Concha Cantú and Caballero Juárez (2001, 147) believed that the judiciary had no role in deciding the judicial budget. 37. At least two states have made some progress in this regard. The constitution of Baja California allocates the state judiciary at least 2 percent of the budget assigned to the government. However, this percentage can be reduced by the legislature with justification (Article 57). According to the constitution of Jalisco, the judicial budget cannot be lower than that of the previous year adjusted for inflation (Article 57). 38. Despite this increase in state judicial budgets, in 2001 the budget of all the states together amounted to about 50 percent of the budget allocated to the federal judiciary. 39. The auxiliary fund is used for many purposes, ranging from additional compensation for judicial officials to the construction of new buildings. 40. The Supreme Court justices themselves can be impeached only by a majority vote of the Congress of the Union; since 1917, that provision has never been used. 41. Unlike federal judges in the United States, who usually are appointed and assigned to a court in their home state, changes in the assignment of federal judges in Mexico have been, and still are, quite frequent. However, before 1995 there were no explicit rules governing the assignment process and judges could not challenge a decision. That meant that reassignment could be used to harass independent-minded judges. It is reported that one of the Supreme Court justices appointed in 1995 was a former judge who had been harassed in this way because he refused to decide a case in the way he was told to decide it. After several changes in assignment, he resigned his post (Dezalay and Garth 1995, 31, 74). Today the Organic Law of the Federal Judiciary (Articles 118 ff.) contains explicit rules governing judges’ initial assignment and any changes. And any assignment decision by the council can be appealed to the Supreme Court. 42. Many states have followed suit. 43. “Ordinary” visits are to be conducted at least twice a year (Organic Law of the Federal Judiciary, Article 101). At present, at least one on-site visit (presence visit) is conducted; the second can be replaced by a detailed report from the judges. The council also orders special visits when the ratification of a judge is scheduled.

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44. According to Article 97 of the Mexican Constitution, district and circuit judges are appointed for a term of six years, at the end of which, if they are ratified or promoted to higher office, they can be removed from office only through impeachment. 45. In his report on a mission conducted in Mexico in 2001, Dato’Param Cumaraswamy, the special UN rapporteur for the independence of judges and attorneys, points out that, according to estimates he received, corruption is a problem for between 50 percent and 70 percent of federal judges; in paragraph 63 he notes that the Council of the Federal Judiciary has never punished a judge for corruption. In its public response, the Supreme Court rightly observed that the report was vague and lacked consistency (see the report and the Court’s response in SCJN 2002). But the Court also missed the opportunity to give detailed information on disciplinary sanctions applied to federal judges in recent years. 46. In fact, the use of the judicial budget is presently monitored and controlled by the Auditoria Superior de la Federación, an auxiliary agency of the Chamber of Deputies. 47. Varios 698/2000-PL. 48. In August 2002, three senators from different parties submitted to the Congress a bill for an amendment to the law that would require the federal judiciary to publish all of its decisions, not only final judgments. 49. The Supreme Court’s public relations efforts notwithstanding, the Court still ranks low in public esteem and confidence, perhaps because of its former invisibility. In a recent (2001) opinion poll, commissioned by the Secretariat of the Interior, the Supreme Court occupies twelfth place in a list of eighteen institutions in terms of public confidence. Only 10.2 percent of respondents said they had “much” confidence in the Court; 25.8 percent had “some” confidence in it (see Secretaría de Gobernación 2002). 50. District courts hear both ordinary federal cases and amparos. Collegiate circuit courts have jurisdiction only in amparo cases and have the final say where the interpretation of ordinary state and federal laws is concerned. Unitary circuit courts hear appeals in ordinary federal cases. 51. Cossío Díaz believes that a conflict between two groups of justices led the Court to issue written regulations. 52. The survey also is discussed on page 272. 53. At least state trial judges whom I have interviewed acknowledge that their needs and problems get more attention from the state council now than before. 54. Concha Cantú and Caballero Juárez (2001, 69 ff.) make just the opposite claim: they say that “judicial presidentialism” is disappearing because high-court presidents cannot exercise unrestrained discretionary power anymore. My impression is that judicial presidentialism has found new life in the role of president of a judicial council. 55. For example, in 2000, the average amount claimed by citizens through the federal ombudsman for consumer affairs was about MXP5,000 (around USD450), which means that smaller claims may not be worth filing (Fix-Fierro and López Ayllón 2001a).

284 Héctor Fix-Fierro 56. Between 1984 and 1996, the justices on the Supreme Court were completely replaced almost twice due to retirement and resignation. President de la Madrid (1982 –1988) made nineteen appointments to the Court (73 percent of the Court’s 26 justices), and President Carlos Salinas (1988 –1994) made eleven appointments (42 percent). Only two of the sitting justices in December 1994 were reappointed in 1995. 57. Cossío Díaz (2002, 114 ff.) describes the constitutional theory developed by the Supreme Court between 1940 and 1994 as “minimalistic,” meaning that the Court willingly narrowed its own capacity for carrying out effective constitutional control. 58. Citing the “urgent need” to appoint judges, the Council of the Federal Judiciary has made a few appointments based only on the candidates’ “merits.” 59. See, for example, two regulations, issued by the council, defining the requirements and conditions for the appointment of circuit and district judges: Acuerdo general 24/2001 and Acuerdo general 25/2001 (accessed April 25, 2001, on the Council of the Federal Judiciary Web site [www.cjf.gob.mx]). 60. Important changes already can be detected among the district judges who took the first internal examination, in 1996, for appointment to the district courts. First, the examination gave many clerks (secretarios), especially from the provinces, an opportunity that they might never have had under the old system, either because they did not work at the Supreme Court or because they lacked connections to the justices. Still, of the sixty-two judges appointed on that occasion, only ten (16 percent) had been clerks at the Supreme Court at the time of their appointment. The examination also favored clerks who were working at courts of general jurisdiction vis-à-vis candidates from specialized courts. These data are taken from an internal statistical report of the Institute of the Federal Judiciary (a copy is on file with author). 61. Adequate compensation, in combination with strict disciplinary controls, can also discourage corruption. 62. The level of compensation for state judges varies greatly across states. Although state judges are not as well paid as federal judges, they also have benefited from budget increases. 63. See ANUIES (2001). 64. For example, it is fairly obvious that 1 peso invested in the improvement of state judiciaries may yield a higher return than the same peso invested in the federal courts. Of course the decision to invest in one or the other is far from being a purely economic one.

References Arteaga Nava, Elisur. 1994. Una nueva reforma judicial. Reforma, December 11. Asociación Nacional de Universidades e Instituciones de Educación Superior (ANUIES). 2001. Anuarios estadísticos. México. Báez Silva, Carlos. 2001. El entrenamiento práctico en el Instituto de la Judicatura

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Federal–Escuela Judicial: El caso de las prácticas de elaboración de proyectos y de dación de cuenta. Revista del Instituto de la Judicatura Federal 9: 27–57. ———. 2002. La carrera judicial federal en México. Juez. Cuadernos de Investigación del Instituto de la Judicatura Federal 1, no. 1 (autumn): 84 –120. Banamex-Accival. México social. Indicadores seleccionados. 1992 –1998. México. Barra Mexicana, Colegio de Abogados. 1994. La reforma al poder judicial. Excélsior, December 15. ———. 2002. 80 años en la defensa de los valores del derecho (1922 –2002). México. Burgoa Orihuela, Ignacio. 1994. Reforma judicial. Excélsior, December 11, 1-A, 26-A. Cappelletti, Mauro. 1989. The judicial process in comparative perspective. Oxford, England: Clarendon Press. Carothers, Thomas. 1998. The rule of law revival. Foreign Affairs 77, no. 2 (March– April): 95 –106. Carpizo, Jorge. 2000. Otra reforma constitucional: la subordinación del Consejo de la Judicatura Federal. Cuestiones Constitucionales 2: 209 –18. Centro de Investigación para el Desarrollo, A.C. (CIDAC). 1994. A la puerta de la ley. El Estado de derecho en México, edited by Héctor Fix-Fierro. México: CIDAC– Cal y arena. Concha Cantú, Hugo Alejandro, and José Antonio Caballero Juárez. 2001. Diagnóstico sobre la administración de justicia en las entidades federativas. Un estudio institucional sobre la justicia local en México. México: UNAM–National Center for State Courts. Cossío Díaz, José Ramón. 1992. Las atribuciones no jurisdiccionales de la Suprema Corte de Justicia de la Nación. México: UNAM–Porrúa. ———. 1996. Jurisdicción federal y carrera judicial en México. México: UNAM. ———. 2001. La Suprema Corte y la teoría constitucional. Política y Gobierno 8, no. 1: 61–115. ———. 2002. La teoría constitucional de la Suprema Corte de Justicia. México: Distribuciones Fontamara. Cossío Díaz, José Ramón, and Josefina Cortés Campos. 2002. La inconstitucionalidad del reglamento de energía eléctrica (y las inconsistencias de la sentencia que la declara). Este País 136 ( July): 28 –36. De la Madrid Hurtado, Miguel. 1998. El ejercicio de las facultades presidenciales. México: UNAM–Porrúa. Detectan en SCJN pagos irregulares. 2002. Reforma, September 11, 1A. Dezalay, Yves, and Bryant Garth. 1995. Building the law and putting the state into play: International strategies among Mexico’s divided elite. ABF Working Paper 9509. Chicago: ABF. Diario Oficial de la Federación. 2002. June 3. Díaz Romero, Juan. 1997. Después de la reforma constitucional. In La toga y la palabra (31–40). México, SCJN–Miguel Ángel Porrúa. Diccionario biográfico del gobierno mexicano. 1984. México: Presidencia de la República– Diana. Directorios biográficos del Poder Judicial de la Federación. 1989, 1993, 1996. México. Divide a ministros reforma judicial. 1994. Reforma, December 8, 1A, 6A.

286 Héctor Fix-Fierro División entre magistrados ante la iniciativa de reforma. 1994. La Jornada, December 14, 9. Eisenstadt, Todd. 1999. La justicia electoral en México: De contradicción en sí, a norma jurídica en una década. Un análisis de casos de la evolución de los tribunales federales electorales de México (1988 –1997). In Justicia electoral en el umbral del siglo XXI. Memoria del III Congreso Internacional de Derecho Electoral (983 – 1050), edited by J. de Jesús Orozco Henríquez. México: UNAM–IFE–TEPJF– UQRoo–PNUD. Entre abogados te veas. 1996. Voz y Voto 41 ( July): 23 –27. Evitar el uso político de la Corte, fin de la iniciativa presidencial. 1994. La Jornada, December 14, 14. Ferrer MacGregor, Eduardo. 2003. La nueva sala constitucional en el Estado de Veracruz. In Justicia constitucional local (195 –204), edited by Eduardo Ferrer MacGregor and Rodolfo Vega Hernández. Querétaro: FUNDAp–Gobierno del Estado de Coahuila. Finkel, Jodi. 1997. The politics of Mexico’s 1994 judicial reform. Paper presented at the LASA Conference, April 16 –19, in Guadalajara, Mexico. Fix-Fierro, Héctor. 1998. Judicial reform and the Supreme Court of Mexico: The trajectory of three years. United States–Mexico Law Journal 6 (spring): 1–21. ———. 1999a. El Consejo de la Judicatura en las entidades federativas. Una evaluación de su marco normativo y diseño institucional. Diálogo y Debate de Cultura Política 2, no. 7 ( January–March): 123 – 61. ———. 1999b. Poder judicial. In Transiciones y diseños institucionales (167–221), edited by María del Refugio González and Sergio López Ayllón. México: UNAM. ———. 2001. El futuro del amparo judicial. Bien Común y Gobierno 7, no. 81 (September): 5 –16. Fix-Fierro, Héctor, and Sergio López Ayllón. 2001a. El acceso a la justicia en México. Una reflexión multidisciplinaria. In Justicia. Memoria del IV Congreso Nacional de Derecho Constitucional I (111–42), edited by Diego Valadés and Rodrigo Gutiérrez Rivas. México: UNAM. ———. 2001b. Legitimidad contra legalidad. Los dilemas de la transición jurídica y el Estado de derecho en México. Política y Gobierno 8, no. 2: 347–93. Fix-Zamudio, Héctor. 1992. Órganos de dirección y administración de los tribunales en los ordenamientos latinoamericanos. In Memoria de El Colegio Nacional. México: El Colegio Nacional, 43 –75. Fix-Zamudio, Héctor, and Héctor Fix-Fierro. 1996. El Consejo de la Judicatura. México: UNAM. Fix-Zamudio, Héctor, and José Ramón Cossío Díaz. 1996. El poder judicial en el ordenamiento mexicano. México: FCE. Garapon, Antoine. 1996. Le gardien des promesses. Justice et démocratie. Paris: Éditions Odile Jacob. González Oropeza, Manuel. 1999. La zaga de los derechos políticos en México. In Derecho y legislación electoral. 30 años después de 1968 (35 –53), edited by Gonzalo Moctezuma Barragán. México: UNAM–Porrúa.

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González Placencia, Luis. 2002. La judicatura federal mexicana frente al Estado constitucional de derecho. Juez. Cuadernos de investigación 1 (primer semestre): 51– 83. Granados Chapa, Miguel Ángel. 1994. Reforma (per)judicial. Reforma, December 12, 9-A. Gudiño Pelayo, José de Jesús. 1991. Problemas fundamentales del amparo mexicano. Guadalajara: ITESO. Hammergren, Linn. 1998. The politics of justice and justice reform in Latin America. The Peruvian case in comparative perspective. Boulder, Colo.: Westview Press. Hammergren, Linn, et al. 2001. Estudio sobre el juicio ejecutivo mercantil en el Distrito Federal. México. Duplicated. Informe anual de labores de la Suprema Corte de Justicia de la Nación. 1970 –2002. México. Kessel, Georgina. 1995. Liberalización comercial y crecimiento económico. In México a la hora del cambio (163 –91), edited by Luis Rubio and Arturo Fernández. México: CIDAC–Cal y arena. López Ayllón, Sergio. 1995. Notes on Mexican legal culture. Social & Legal Studies 4, no. 4: 477–92. ———. 1997. Las transformaciones del sistema jurídico y los significados sociales del derecho en México. La encrucijada entre tradición y modernidad. México: UNAM. López Ayllón, Sergio, and Héctor Fix-Fierro. Forthcoming. “Faraway, so close!” The rule of law and legal change in Mexico (1970 –2000). In Legal culture in the age of globalization: Latin Europe and Latin America, edited by Lawrence M. Friedman and Rogelio Pérez Perdomo. Stanford, Calif.: Stanford University Press. Madrazo, Jorge. 1993. Derechos humanos: El nuevo enfoque mexicano. México: FCE. Magaloni, Ana Laura. 1994. La reforma al poder judicial. ¿Qué pretende lograr? Excélsior, December 13, 5-A, 27-A, 33-A. Magaloni, Ana Laura, and Layda Negrete. 2000. Desafueros del poder. La política de decidir sin resolver. Trayectorias. Revista de Ciencias Sociales de la Universidad Autónoma de Nuevo León 2, no. 2 ( January–April): 54 – 68. Magaloni, Beatriz, and Arianna Sánchez Galindo. 2001. Empowering courts as constitutional veto players: Presidential delegation and the new Mexican Supreme Court. Paper presented at the annual meeting of the American Political Science Association, August 30 –September 2, in San Francisco. Molinar Horcasitas, Juan. 1991. El tiempo de la legitimidad. Elecciones, autoritarismo y democracia en México. México: Cal y arena. Niegan excesos en nombramiento de ministros. 1994. Reforma, December 14. Note: Liberalismo contra democracia: Recent judicial reform in Mexico. 1995. Harvard Law Review 108: 1919. Oportuna y positiva, iniciativa para reformar el sistema judicial. 1994. La Jornada, December 7, 5. Partido Acción Nacional (PAN). 1994. La fuerza de la democracia. Plataforma política 1994 –2000. México. Partido de la Revolución Democrática (PRD). 1994. Plataforma electoral. México: Instituto de Estudios de la Revolución Democrática.

288 Héctor Fix-Fierro Partido Revolucionario Institucional (PRI). 1994. Plataforma electoral 1994 –2000. Certidumbre, responsabilidad y cambio para México. México: Fundación Cambio XXI. Preocupan despidos en la Suprema Corte. 1994. Reforma, December 9. Prillaman, William C. 2000. The judiciary and democratic decay in Latin America. Declining confidence in the rule of law. Westport, Conn.: Praeger. Ramseyer, J. Mark. 1994. The puzzling (in)dependence of courts: A comparative approach. Journal of Legal Studies 23 ( June): 721–47. Rivapalacio, Raymundo. 1994. El Fujimori Azteca. Reforma, December 12. Sáenz Arroyo, José, ed. 1988. La renovación nacional a través del derecho. La obra legislativa de Miguel de la Madrid. México: Porrúa. Saldierna, Georgina. 1994. La reforma judicial debe extenderse a la microjusticia: García Ramírez. La Jornada, December 15, 11. Sales Sarrapy, Carlos. 1995. La reforma económica. In México a la hora del cambio (87–133), edited by Luis Rubio and Arturo Fernández. México: CIDAC–Cal y arena. Sarre, Miguel, and Antonio López Ugalde. 2002. Administración de justicia en México. Indicadores en materia mercantil e hipotecaria. México: ITAM–Gaxiola Moraila. Schatz, Sara. 1998. A Neo-Weberian approach to constitutional courts in the transition from authoritarian rule: The Mexican case (1994 –1997). International Journal of the Sociology of Law 26: 217–44. Schwarz, Carl. 1973. Judges under the shadow: Judicial independence in the United States and Mexico. California Western International Law Journal 3: 260. Secretaría de Gobernación. 2002. Conociendo a los ciudadanos mexicanos. Principales resultados de la encuesta nacional sobre cultura política y prácticas ciudadanas 2001 de la Segob. Este País 137, August (special supplement). Secretaría de Hacienda y Crédito Público. 1995. Plan Nacional de Desarrollo 1995 – 2000. México. Semanario Judicial de la Federación y su Gaceta. 1998. 9a epoca. Vol. 8 (October). México. Serna de la Garza, José María. 2003. Apuntes sobre el debate relativo al amparo casación en México. Reforma Judicial. Revista Mexicana de Justicia 1 ( January–June): 263 –78. Suprema Corte de Justicia de la Nación (SCJN). 2001. Proyecto de la Suprema Corte de Justicia de la Nación de la Ley de Amparo Reglamentaria de los Artículos 103 y 107 de la Constitución Política de los Estados Unidos Mexicanos. México. ———. 2002. Respuesta al informe del relator de la ONU para la independencia de jueces y abogados. México: Poder Judicial de la Federación. Taylor, Michael C. 1997. Why no rule of law in Mexico? Explaining the weakness of Mexico’s judicial branch. New Mexico Law Review 27 (winter): 141– 66. Vargas, Jorge A. 1995. The rebirth of the Supreme Court of Mexico: An appraisal of President Zedillo’s judicial reform of 1995. American University Journal of International Law and Policy 11: 295. Venegas, Juan Manuel, Ciro Pérez Silva, and Jesús Aranda. 1994. Perfectible la reforma judicial de Zedillo: Foro en la UNAM. La Jornada, December 14, 14.

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Zamora, Stephen. 1993. The Americanization of Mexican law: Non-trade issues in the North American Free Trade Agreement. Law and Policy in International Business 24, no. 2: 391–459. Zedillo, Ernesto. 1994. Las políticas del bienestar. México: PRI (Documentos). Zepeda Lecuona, Guillermo. 1999. La disputa por la tierra: Los tribunales agrarios en México. Estudios Agrarios 11: 9 –49.

ch apter

International Assistance to Latin American Justice Programs: Toward an Agenda for Reforming the Reformers

9

linn hammergren

since the early 1980s, international assistance agencies have been increas-

ingly involved in promoting judicial (or justice) reform throughout the Third World.1 Although there had been earlier—and in some cases, continuing—forays into the area, the post-1980 efforts constitute a different kind of program and so deserve separate treatment.2 Unlike the earlier law and development movement, most external funding has gone directly to governments and has focused on strengthening formal public institutions.3 Although they retain an interest in advancing human and citizens’ rights, programs have added such objectives as promoting stable democratic government and equitable market-based development. Other distinguishing characteristics include the far larger amounts of money invested, the greater number of external and internal actors involved, and the greater attention accorded the efforts both domestically and internationally. Much of this attention has been critical. External observers have questioned the wisdom and sincerity of the entire effort, the results claimed, the value of the objectives pursued, and the soundness of the strategies and tactics utilized. Many insiders would agree that there is much to reexamine; but most also would argue that doing so effectively requires a far better understanding of their work. This is not impossible for an outsider to achieve, but it requires first recognizing the need and then knowing where to look. With this in mind, the present paper has two purposes: to provide general information to help orient external observers, and to offer one insider’s vision of the nature and origins of and possible solutions for the most significant problems.

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The arguments here are developed in three steps: a brief overview of the agencies’ programs; a discussion of the institutional dynamics behind them; and, in the final section, speculation on the actual and potential impact of their efforts and the feasibility of attempts to improve them. Because the new movement began in Latin America (and my own experience is largely in that region), the present paper focuses on activities there. Because my insider’s view is only of the World Bank and the U.S. Agency for International Development (USAID), most of my examples and case studies relate to those agencies. The lesser emphasis on other donor programs is thus symptomatic only of this experiential bias. It in no way reflects on their importance.

What Donors Have Done I include this section because of an impression that outside the donor community—and to some extent within it as regards work by other agencies— knowledge of donor operations is relatively limited and often erroneous. To a large extent, the donors themselves are to blame. The information they provide to the public serves a number of purposes other than conveying exactly what they are doing. Much of it— often with an emphasis on dramatic anecdotes and stories as opposed to “just the facts”— counts as public relations. Donors differ considerably about how much additional material can be accessed; but invariably, if not always intentionally, what is in the public sphere is hard to locate and equally hard to place in context. USAID arguably has produced the greatest number of assessments, studies, and evaluations, but it has done a poor job of organizing and disseminating the results, even for internal consumption.4 For various reasons, the multilateral banks are still more reluctant to make such documents public.5 They have published isolated studies, discussion papers, and conference proceedings, but their relationship to actual projects is somewhat tenuous.6 In general, all of the easily accessed materials are reasonable representations of the themes assistance agencies believe are important but are not necessarily good indicators of where the agencies put their resources. The rest of the blame lies with the outside readers. Their primary failing may be an inability to distinguish between PR and reality, a tendency to read official publications as gospel rather than the always partial and often propagandized view they represent. This guilelessness does not always work to the donors’ advantage. More than one critic has used a project’s official mission— often as much wishful thinking as concrete plan—as a means of demonstrating inconsistencies, incompetence, or a hidden agenda. What insiders perceive as the truth of the matter may be equally disturbing, but usually for different reasons. As we discuss below, bureaucratic politics, perverse

292 Linn Hammergren incentive systems, and conflicting but not necessarily hidden agendas are more likely to figure in our explanations. some general concepts Before reviewing individual donors’ programs, a few general explanations are in order. First, I use the term donor to refer to the entire community of agencies engaged in international assistance—the bilateral assistance agencies (USAID, DFID, GTZ, CIDA, and others); 7 the multilateral development banks (MDBs), among them the World Bank and the various regional banks; the United Nations (principally the United Nations Development Program but occasionally other specialized agencies); and various international and national foundations, universities, and institutes (including the German stiftungen— development foundations sponsored by political parties—and nongovernmental organizations (NGOs) with international programs.8 Second, despite their characterization as donors, these entities operate through both grants and loans— or what the banks call nonreimbursable and reimbursable credits. Almost all of the MDBs’ assistance funds, and the majority of their activities, are in the form of loans, which means they work predominately with national governments. Even their grants generally are channeled through national governments. Efforts to work directly with NGOs, state or local governments, or regional organizations are recent and still face bureaucratic impediments. Many of these entities are not suitable candidates for loans, and grant resources are both scarce and often conditioned by the countries providing the funds to the banks.9 Bilateral agencies and the UN now work entirely with grants and have considerably more flexibility in placing them. If a national government does not seem like a suitable recipient, they can work with local or international NGOs, professional associations, single court districts, or even offices within those districts. Third, although we commonly speak of development projects, not all loans or even grants are “projectized”—that is, explicitly programmed into a series of inputs and outputs linked to some larger objective. In concrete terms, a project to reduce court delays would budget available funds to predetermined activities, or inputs —for example, preliminary studies, training, computer hardware and software, technical assistance in designing the systems and in making necessary adaptations to court procedures, and associated administrative expenses—intended to produce specific outputs—new systems and procedures for tracking cases and their compliance with processing deadlines—that, once in place, should lessen the time to resolution of cases. Projects usually have timetables and sequences for achieving their intermediate and final goals. And they are evaluated, not only in terms of their ul-

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timate results but also in terms of their progress through a planned series of events. The MDBs’ principal work with judicial reform has been done through smaller investment or technical assistance loans. Smaller here is relative. It often means $20 million to $40 million for a five-year project, the maximum amount for a bilateral-grant project. Larger loans have been used to promote judicial reform, but under a different, nonprojectized format. These structural adjustment, sector adjustment, or program loans may specify intended outcomes but not the means by which those outcomes will be produced. Fast-disbursing structural adjustment or sector adjustment loans, ranging from several hundred million to more than a billion dollars, commonly are disbursed in tranches with conditions that must be met before each tranche is released. A loan that is intended to disburse all funds within eighteen to twenty-four months obviously cannot set very complicated conditions. So, for example, the loan could not realistically require that the average time to disposition of a civil case be reduced by 25 percent—there wouldn’t be enough time to meet that objective. A more reasonable condition might be that a study of delays be conducted or that a plan to reduce delays be designed. Usually these loans are intended for general budgetary support, and any conditionality relating to the judiciary shares the stage with numerous requirements addressed to other policy areas. In contrast, program loans normally last for longer periods and aim to leverage more-complex reform processes, like those in project loans. However, they emphasize results and conditions, not the means for achieving them. A program loan for judicial reform might include a series of conditions to be met over a period of five to ten years, moving from a preliminary study to documented impact on delay or other critical values. The use of the funds would not be tracked, but staggered disbursements (tranches) would be contingent on each set of conditions being met. For various reasons—among them the lower costs of design and supervision, and fewer reporting requirements for recipients—the World Bank and possibly the other MDBs seem to be moving away from projectized loans toward these various forms of “budgetized” lending.10 What this means for institutional development programs is a good question, but one reserved for a later section. Other donors, essentially those that give grants, also may be moving out of the project mode.11 USAID now works within a results framework: specifying products but not the means by which they will be achieved. However, when it lets technical-assistance contracts, the terms of reference look a lot like those in the old project designs. Donors also give grants, usually in small amounts, to local NGOs for general support. These grants are disappearing, though, a function of problems

294 Linn Hammergren with accountability and the fear of creating permanent dependencies on external aid. Other nonproject grants include small amounts for technical assistance, travel, equipment, or one-time events. In theory, donors do not provide funds for government operating expenses, including salaries or salary supplements. But exceptions have been made, and, in practice, there are a number of ways to work around the rule.12 A further point is the considerable difference in the level of control donors maintain over the use of assistance funds. The MDBs commonly apply the same method for both grant and loan funds. The recipient—most often a government entity—manages the funds and executes the program. MDB supervision is based on occasional visits, the recipient’s progress reports, financial accounting, and tracking conditionality. USAID and other donors with a large field staff usually manage the execution of their own grants. Those with a small or no field presence rely on the recipient for execution. Finally, because even donors with field managers do not have many judicial reform experts, all agencies rely heavily on contracted consultants and consulting firms. The critical difference is simply who, the agency or the beneficiary, does the contracting and oversees the work. The distinction is important. In the one case, the donor is involved in the day-to-day decisions about program activities; in the other, those decisions are worked out between the beneficiary and the consulting firm. The field for big contracts tends to be dominated by a few firms, but an increasing number of NGOs, universities, and research institutes are appearing as subcontractors. Bilateral donors often have special arrangements with some of them. They also use seconded experts from their domestic government agencies or, as is the case in the United States, hand off parts of projects to the agencies themselves. For example, work with police and prosecutors in U.S. programs frequently is done through agreements with two U.S. Department of Justice offices, the International Criminal Investigative Training Assistance Program (ICITAP) for police work and Overseas Prosecutorial Development Assistance and Training (OPDAT) for prosecutors. The following summary focuses on classical reform projects, but it is well to keep in mind that assistance takes other forms. Amounts cited are the donor’s contributions to the project. Most donors require counterpart contributions from the recipient, often as much as 25 percent of the total value. Counterpart funding is another reason recipients prefer nonprojectized loans: budgetized loans usually do not require recipients to make an additional contribution. The justification for counterpart contributions is that they indicate a beneficiary’s commitment to and ownership of a project. But for recipients with severe financial problems, even a grant may look less attractive under these conditions. It also should be remembered that these are multiyear projects, and that the quantities are those authorized. Actual ex-

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penditures often lag far behind, and in some cases never match the initial amounts. the u.s. agency for international development USAID is currently the donor with the longest and most diversified history in judicial reform programs, both in Latin America and worldwide.13 It has programs in most of the countries of Latin America and the Caribbean. Most are bilateral, government-to-government grants. USAID also has worked through regional organizations, funded activities solely with NGOs, or used NGOs to implement programs with government entities. Over its almost twenty years’ experience in the region, project size has varied from a few hundred thousand dollars for start-up or pilot work (especially in “nonpresence countries,” countries where USAID does not have a field mission) to comprehensive-change programs involving as much as $30 million for two Salvadoran bilaterals (from 1983 to 1998) and $36 million for a program in Colombia (from 1991 to 1998). Funding for USAID’s Latin American programs totaled roughly $200 million between 1983 and 1993.14 Between 1994 and 1998, another $196 million was obligated in the region.15 USAID programs in Latin America began with a focus on human rights and criminal justice that, for the most part, continues to this day.16 The programs’ purpose was to advance democratic development. Their immediate objectives were to reduce human rights violations and impunity (especially for political and other elites), to expand access to justice to all social groups, and to increase the justice sector’s efficacy and efficiency in the detection and prosecution of crimes. A by-product of those goals was attention to strengthening the sector’s institutions: clearly better criminal justice cannot be delivered by courts, police, prosecutors, and defenders who are beholden to political actors, corrupt, poorly organized, or inadequately funded. Over the years, USAID has adopted a code-driven reform model, organized around the drafting and implementation of new criminal procedural laws.17 In the most successful projects—that is, those that have produced the most change in internal operations and external outputs— code revision became the pretext for introducing many traditional development activities. Those activities include capacity building (for example, better investigative methods and the introduction of modern management and planning techniques) and the reorientation of the institutions’ mission, culture, and values (for example, the design and implementation of crime prevention and deterrence policies). The changes might have been attempted without revising the codes, but the new laws created a special impetus and real deadlines: once the laws went into effect, things had to change. Projects also necessarily have focused on expanding internal and external support for reforms and on public education in the new rules and procedures.

296 Linn Hammergren USAID’s projects found allies in an indigenous reform movement that already was calling for some of these changes (see Llobet Rodríguez 1993; and Maier et al. 1993). In return, USAID backed its additional demands—for new forms of judicial governance and appointments, higher budgets, and an expansion of judicial review powers—through its policy dialogue and with technical and financial support. The movement, composed of a network of academics and jurists, was never very strong. With the benefit of donor resources, it was able to overcome an equally disorganized and weak opposition. Initial changes—new laws, altered organization, higher budgets, and new powers— often succeeded because the sector’s former irrelevance made the innovations appear inconsequential. By the time anyone noticed the broader significance of the reforms, it was too late to retreat. Of course today, the opportunity for “stealth reforms” has passed in most of Latin America. The future proposals of donors and local groups will be examined closely and debated.18 USAID funding was fairly equally divided among training, technical assistance, and equipment; 19 infrastructure was rarely financed. Until the recent shift to results frameworks, each project had to have a logical framework (“logframe”), linking purpose, objectives, critical assumptions, inputs, outputs, and anticipated impact.20 Most projects were executed through consulting firms contracted and supervised directly by USAID, which assigned specialized mission personnel to this purpose. Projects were designed, consulting firms and advisers were selected, and yearly work plans were devised in collaboration with the recipient institution. The institution’s actual input varied greatly, depending on local circumstances and experience with project planning. Specialized short-term consultants and trainers were used extensively. Projects also relied on resident consultants and advisers to work closely with sector organizations over periods of several years. In addition to their specific assignments, long-term advisers were expected to provide general suggestions, help detect problems or areas for attention, and recommend modifications in program design. This sort of “accompaniment,” as it has come to be called, produced some of the most innovative approaches to organizational and procedural redesign, things that could be identified only by experiencing problems firsthand.21 Most of these innovations were context-specific; they don’t travel well. The benefits of accompaniment are now recognized, although the costs and difficulties of finding the right candidate limit its wider use. Many of USAID’s successes in Latin America cannot be attributed solely to the agency’s efforts. They also benefited from a series of simultaneous developments and, most important, from the entrance into the region of other donors engaged in similar or complementary programs. Judicial reform has consequently become a concern regionwide, and many of the once contro-

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versial measures promoted by USAID—the need to increase spending on the legal system, the importance of judicial independence, the need for greater access and more equitable treatment of users, the utility of fundamental changes in organization and procedures—are now widely accepted. Code reform has become wildly popular; and most countries in the region, having adopted new criminal codes, are now rewriting codes in other areas (see Correa Sutil 1999; and articles in Maier et al. 1993; and Vargas 1996). Innovations promoted by USAID programs—judicial training, court administration, public-defender services, judicial statistics, and planning systems—also have become standard reform components.22 Conceivably the enthusiasm for some of these new elements is exaggerated, producing its share of unreliable silver bullets. Still, compared with the situation twenty years ago, the attitudinal and policy changes have to be considered predominately positive. Looking at system outputs and impact—the larger objectives of these innovations—achievements are harder to pinpoint and vary from country to country. Significant declines in certain human rights abuses (for example, extrajudicial killings, police brutality, irregular detentions, and the failure to provide counsel to criminal defendants) can be documented in El Salvador (see Popkin 2000; Prillaman 2000: Spence and Vickers 1994; and Spence, Vickers, and Dye 1995), Guatemala (Lawyers Committee 2002; Hendrix 2002; United Nations 1999), and other countries where they were particular problems and where reform programs emphasized this goal. However, changes in this area also can be attributed to the end of periods of civil war, external political pressures, and funds spent by other donors on monitoring systems. Other targets—a reduction in the percentage of prisoners awaiting trial, faster processing of and higher closure rates for criminal cases, “better” criminal investigation, and the “satisfactory” resolution of cases 23 —are either difficult to document because of unreliable measurement systems or show indeterminate results. Indicators like user satisfaction and public image of the judiciary often have shown little or no improvement. USAID provides two answers to complaints about the lack of progress: First, systemwide impact requires more time. Second, the agency insists the programs are on the right track because pilot efforts often have shown positive results.24 It also has argued that several factors slow the introduction of fundamental structural change: political or institutional opposition; a judicial culture that resists certain critical elements, especially those having to do with planning, gathering statistics, simplifying procedures, and reorganizing structure; and the continuing low quality of the sector’s human resource base. These obstacles affect all donors, and so far none have developed plans for overcoming them. One quick fix—relying on a “champion” (an enlightened political or judicial leader)—has been disappointing. Champions

298 Linn Hammergren often disappear or prove to have their own conflicting agenda. Longer-term remedies, ranging from building reform constituencies to improving the curriculum in law schools, are difficult to sustain, face their own political constraints, and, in the case of legal education, are too slow and too costly to attract donor investment or much demand.25 the world bank The World Bank began its Latin American programs on a very small scale in the mid-1980s.26 Most of its work and its major projects date from the early 1990s. It recently completed two projects in Venezuela and one in Bolivia; and it currently has four projects in the region— one each in Argentina, Ecuador, Guatemala, and Colombia. In addition, an ongoing provincial development project in Argentina includes assistance to provincial courts. A project in Peru was canceled just short of implementation when the parties disagreed over policies on judicial independence (see Lawyers Committee 2000). New programs are under design in Argentina, El Salvador, Mexico, and Peru. The World Bank’s assistance is primarily in the form of medium-sized investment loans (that is, projectized lending). Grant funding is used for preparation and some support for experimental activities; some of it goes to NGOs. Even here, the host country counterpart usually implements directly subject to periodic monitoring by the project officer. In addition, some structural readjustment and other nonprojectized loans have set conditionality relating to judicial reform. Because of restrictions on its political involvement, the World Bank has avoided criminal justice reforms and work with entities like the police, prosecutors, and defenders, focusing instead on commercial and civil law reform and general strengthening of court systems.27 The restrictions appear to be undergoing reinterpretation; but because of the small number of projects under way and the time required for start-up, the impact on project content remains minimal. Project size ranges from just under $5 million for a pilot court project in Argentina to $33 million for a multiobjective judicial-strengthening effort in Guatemala. Following criticisms of the initial Venezuelan proposal,28 projects have tended to allocate infrastructure costs to the local counterparts and to insist that computer and equipment purchases be linked to some larger objective. There is a continued emphasis on training, automated case tracking and information systems, code reform (commercial, administrative, and civil), improved courtroom administration, alternative dispute resolution (ADR), and strengthening of judicial administrative and governance systems. The last element has been a particular problem in that many of the countries where the World Bank has projects are shifting from supreme court governance to judicial councils.29 This sometimes has caught projects

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in midstream, so that an agreement with a supreme court remains posited on the latter’s exercise of powers that subsequently were transferred to a judicial council.30 World Bank agreements with ministries of justice in Argentina and Bolivia have faced comparable difficulties, caught in an institutional turf war between the executive and judicial branches of government. This problem is not unique to the bank. It may have been slower to recognize and deal with it because of its resolve to avoid political issues and a supervisory system that keeps project managers in Washington, where the significance of these conflicts may not be fully appreciated. Although the World Bank works almost exclusively with government partners, it is increasingly attempting to include civil society organizations in its projects as a means of ensuring that interests other than those of the judges are recognized. Under the Ecuador loan program, a special fund was set up to finance proposals by such groups. Ecuador’s project also provided some support for general legal education. Other innovations are support to provincial courts in Argentina, a series of research initiatives on court users, and the incorporation of civil society representatives in project oversight groups in Venezuela and Guatemala. Most judicial reform projects funded with World Bank loans have been in place for too short a time to evaluate potential or real change. The outcomes to date have been fairly uneven. In Bolivia’s recently completed project, a $13 million loan was divided between the Ministry of Justice and the Supreme Court (later replaced by the Judicial Council as the judicial governing body and thus the project counterpart). The ministry was very active in drafting and securing the passage of new laws, including those creating the council and the new Constitutional Tribunal. On the judicial side, the most progress was made in training civil court judges in a new abbreviated procedure (another law drafted and enacted through ministry of justice efforts) and in the introduction of a manual system for monitoring their handling of civil cases. A pilot automated case-tracking system was installed just before the project was completed; it has not been evaluated by the bank. Similar systems have been developed in Ecuador and Venezuela, but they too have not been evaluated.31 Conflicts between Bolivia’s Supreme Court and justice ministry, the Court and the council, and within the council impeded progress on institutionalizing the training program and on introducing a judicial career. Although not affected by overt conflict, Ecuador’s shift from court to council governance impeded progress there. The Supreme Court remains the official counterpart in the project, but it has been so slow to act that even the project’s construction program has lagged. In both Bolivia and Ecuador, the implementation units created for the World Bank project were too weak and too dependent to push the government bodies to action. Despite needed redesign and renegotiation in Venezuela and the very re-

300 Linn Hammergren cent start in Guatemala, there are signs that these projects have advanced more rapidly. In both cases, the task managers focused on forging a reform alliance among judges, other judicial officials, and certain civil society groups. The processes also involved extensive consultations within the judiciary and the formulation of a reform plan by consensus. It appears that those practices generate an impetus to get things done; and by sharing information and decision making, they also eliminate resistance originating in a lack of understanding of and agreement with a project’s objectives and rationale. An earlier exercise undertaken in Bolivia was less successful. It was conducted by an external consulting firm with insufficient backing from the high court. In short order, the initial enthusiasm and consensus were undermined by interinstitutional battles. Without in-depth evaluations, and in Guatemala more time, it is difficult to assess the merits of the consensus-building strategy. We do know that it addresses several common criticisms of World Bank projects: that they work from inadequate knowledge of existing problems; that they rely on agreements with a very narrow leadership group, many of whose members appear to have a vested interest in the status quo; and that they lack both a strategy and clearly defined objectives. Most of the bank’s judicial reform projects in Latin America have a general aim of strengthening the institutions of justice; but their specific objectives often are defined by activities—setting up a training program, introducing new laws and procedures, and introducing modern technologies and management techniques. Measurable outcomes usually are limited to increasing caseload capacity and reducing delay and overall backlog. Although these are credible goals, it’s fair to ask whether they are the highest-priority problems posed by judicial services, especially if one considers the nature of the cases usually taken to the courts.32 Latin American and foreign experts have begun to question the value of current use patterns (see, for example, Correa Sutil, Peña, and Vargas 1999; and Zuckerman 1999). They argue that before we begin to improve the processing of existing cases, we might want to consider how that improvement will affect overall demand, who will benefit, and how judicial services might be redistributed among different clients and types of disputes. Project documents do mention goals like increased access, greater judicial independence and professionalization, and the elimination of obstacles to investment and economic growth. The linkages between these goals and proposed activities often are not clear, and that makes an evaluation of progress and effectiveness almost impossible. The World Bank’s emphasis on civil justice and general institutional strengthening explains part of the problem: in civil justice, unlike criminal justice, there is little agreement on what concrete improvements should look like. The situation is not helped by the

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initial analysis that informs the design of each project. The fact that preliminary assessments often are carried out with or by the local counterparts means that fundamental institutional problems may be glossed over or not mentioned at all. There is a decided tendency to blame poor judicial performance on inadequate funding, antiquated laws and procedures, a lack of modern equipment, and a shortage of training opportunities. Not surprisingly, these are the areas on which reform focuses. Corruption, judicial biases, perverse incentive systems, and ties with political actors are almost never mentioned as problems and so do not figure in the project strategy. The consensus-building approach, whatever its other merits, is unlikely to remedy this failing. Fundamental criticisms of how a system works rarely emerge from this sort of exercise. What does emerge are lower-level details, statements about the need for higher salaries and more training opportunities, and concern about the adequacy of resources. Also, whether a project’s design is formulated with a small leadership group or backed by broader consultations, the process draws heavily on conventional wisdom—including that circulating in the bank—about the nature of judicial problems and their solutions. It is assumed that poor judicial performance impedes economic growth, so that any improvement in the former will have a positive effect on the latter; just as it is argued that institutional modernization enhances judicial independence and that reducing delays increases access. Given doubts raised in other quarters about the validity of these claims, it may be time to reexamine them, logically and on the basis of project experience. Finally, although the World Bank’s program is new, the near absence of rigorous, systematic evaluations is disturbing. To the extent it has evaluated these projects, the bank has relied on self-assessments by project staff and counterparts, desk exercises, and extremely short term field reviews. The periodic visits of the task manager (called supervisions), sometimes accompanied by a few short-term consultants, tend to be firefighting exercises, aimed at detecting bottlenecks. They are not a substitute for comprehensive monitoring and evaluation. Also conspicuous by their absence are cross-cutting reviews of all projects, common activities, and methodologies. Although no donor has done enough of these, both USAID and the Inter-American Development Bank (IDB), another important donor, have made some effort using internal and external evaluators.33 The World Bank certainly could use in-house staff to conduct reviews, so long as the staff members are not directly connected with the project under review. This would address another weakness at the World Bank, the absence of a shared strategic vision and common knowledge base. It is especially perplexing that the individual task managers actively involved in its Latin American projects—a group of only about a dozen members—have so little understanding of what the others are

302 Linn Hammergren doing and with what results. As we discuss below, there is an underlying structural explanation for this phenomenon, but it is a serious impediment to improving project quality. the inter-american development bank The IDB is the other major donor in the region.34 Its entrance was even more recent than that of the World Bank: it was formally staged with a regional conference in 1993 and the announcement of its judicial reform “product lines”: institutional strengthening, access, criminal justice reform, law reform, consensus building, and research (IDB 1993).35 Like the World Bank, the IDB emphasizes comprehensive projects, but its focus is more varied. By its own count, it has initiated nearly twice as many projects as the World Bank (thirteen versus seven) for more than twice the amount ($201 million versus $99 million).36 Currently the IDB has four projects that are well along or recently completed: • The focus in El Salvador is on juvenile justice and the development of complementary services for the new juvenile courts (including a large component for infrastructure). • A project in Costa Rica continues work started by USAID to update court administration and technology. • In Honduras, the reform mainly involves infrastructure, with limited attention to drafting codes and strengthening administrative processes. • In Peru, the IDB is financing the construction of courtrooms in rural communities. A fifth project, in Panama, is somewhat newer. Its focus is conventional: court administration, infrastructure, technology, training, and case management for the courts, the Attorney General’s Office (Procuraduría General de la Nación), and the Solicitor General’s Office (Procuraduría de la Administración). All of these are medium to large loan projects. If any of them has been evaluated, the results are not publicly available. It appears, however, that three of the programs (in El Salvador, Costa Rica, and Peru) suffered implementation slowdowns. In El Salvador and Costa Rica, the problem had to do with disagreements over contracting; the setbacks in Peru stemmed from the counterparts’ financial difficulties and consequent inability to staff the structures funded by the IDB. The IDB has placed particular emphasis on alternative dispute resolution, using many of its grant programs to support chambers of commerce in developing ADR services. It also has taken a lead in decentralizing its justice programs by working with state and local government units. For example,

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until recently it had a loan program with the provincial courts in Argentina.37 In Colombia it has signed loan agreements with the cities of Bogotá, Medelín, and Cali. The projects focus on “citizen security,” and so mix traditional judicial reform with municipal programs and activities designed to draw in civil society groups. The IDB already has a national-level program with the Colombian Public Prosecutor’s Office (Fiscalía General) that it intends to coordinate with the municipal projects. Only the Cali project has moved into full implementation, so it is still too early to assess the results. The approach is interesting for two reasons. First, in federal systems (Argentina, Brazil, and Mexico), a national program is unlikely to deal effectively with the problems of state or provincial courts, even though those courts handle most of the judicial workload. Second, two common complaints about both unitary and federally organized judiciaries are excessive central control and a tendency to devote new resources to upper-level courts. The World Bank also has been moving, albeit slowly, to address these issues. Both banks remain constrained by the necessity of reaching initial agreements with their natural counterparts: first, the central governments of their partner countries, and, second, the uppermost leadership of the institutions with which they ultimately work. Like the World Bank, the IDB faces the problem of how to develop and manage justice programs in Latin America when its substantive experts for the most part are located in Washington. Its solution is novel, although not necessarily more effective. Projects are developed by the IDB’s central staff but then are turned over to in-country managers. Those managers usually are not legal experts, and often they oversee a large portfolio of projects. This may account for some of the implementation setbacks as well as for a tendency to channel money toward buildings and equipment, easier activities for a nonexpert to monitor. On the plus side, the IDB does more preliminary assessments than the World Bank; 38 it also favors team development of projects. Its use of locally staffed implementation units is also distinctive. Although the World Bank—as well as the UN and some bilaterals—also use these units, the IDB seems to place far more emphasis on the experience and knowledge of their members. In El Salvador, for example, when offered the implementation unit created but never used by USAID, the IDB insisted on creating an internal office to execute its own project, having noted, as did USAID, the existing unit’s weaknesses. In 2001 the IDB commissioned an external evaluation of its entire justice portfolio. At the time of this writing (early 2003), the results still had not been released publicly. The evaluation apparently is quite critical, and there already are discussions about a major shift in emphasis. No one is predicting that the IDB will abandon judicial reform, but insiders speak of redefining its comparative advantage. One likely outcome is a shift from conventional

304 Linn Hammergren institution-strengthening efforts to a more concentrated focus on juvenile justice or ADR, areas where the IDB has invested more resources than have other donors. This kind of shift also would tighten the connection between the IDB’s justice work and its antiviolence programs.39 However, given the large number of loan projects still in the early stages of implementation, any change should be very gradual. the united nations Although it has been active in Latin America for some time, the UN only recently has extended its efforts to global reform projects, to date only in postconflict countries—El Salvador, Haiti, and Guatemala—where it has an observer mission (ONUSAL, MICIVIH, and MINUGUA, respectively).40 Funding constraints often limit the UN to providing technical assistance, including instructors for training programs, unless other donors specifically allocate funds for equipment and infrastructure. In 1996, the Spanish government provided the UN with a $30 million fiduciary fund to finance projects in Latin America. With the exception of an $11.0 million project in Nicaragua and a $5.5 million effort in Peru, most of the projects have been relatively small. A typical use is a $1.1 million grant to Panama’s Ministry of Justice to reduce the pretrial-detention population and improve the treatment of prisoners. The grant paid the salary of a public defender, who attended to prisoners’ complaints; financed computers and software for an information system on detainees; and trained the administrative officials who rule on small crimes and misdemeanors in the use of alternatives to prison sentences. Although the Spanish fund is depleted, the United Nations Development Program (UNDP) has created a second fund, with $75 million from a variety of donors, to duplicate these efforts worldwide. The UNDP has also become involved in MDB projects through its role in administering in-country funds. It charges a small portion (3 to 4 percent) of the total amount, in return for which it ensures compliance with accounting, reporting, and contracting rules. The UNDP’s role here is purely administrative; it does not participate in policy decisions. It also has performed this service for nationally financed programs, as it did in Peru in the 1990s.41 In its own projects, the UN uses a variety of implementation styles. Those managed by observer missions have large resident staffs to implement projects directly. Most are international experts contracted directly by the mission. In some cases, contributing donors also send police experts or other specialized personnel. The UNDP’s projects usually are designed and negotiated by the central unit in New York, executed by the local partner, and administered through the local resident mission.

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other donors Other assistance agencies generally support more-focused activities, by working either with a single organization or on a single component of reform (for example, legal defense, code reform). Many of them provide funds for training, and for equipment and related technical assistance. The European Union managed two funds for human rights projects in Central and South America. Among the activities were regional and national meetings on issues like code reform, law school curriculum, and media laws; the development of pilot NGO programs in the treatment of juveniles and other areas; and the implementation of specific courses in judicial schools. It recently has moved into larger programs, including a substantial contribution for judicial training in Guatemala. Spain, in addition to its support of the UNDP, also has directly funded regional conferences and publications on aspects of code and judicial reform; instructors and some operating costs for courses taught in law schools; observation and educational trips to Spain; and pilot projects, like one in Panama that set up a system for training and overseeing administrative officials who adjudicate cases at the community level. Canada, Great Britain, Sweden, Norway, Denmark, France, and Germany, through their national assistance agency and political foundations, have funded similar programs. Most focus more on NGOs, conferences, and training than on other activities with the public sector. Finally, several private organizations—most notably the Ford and Tinker foundations—have funded meetings, legal defense programs, and local NGOs that actively monitor human rights. More recently, the foundations have paid for technical studies on the problems of justice reform. quasi-donors and other actors In addition to the conventional donors—the agencies that provide funds for judicial reform projects and activities—support also comes from a growing group of less conventional participants wearing several hats. Among the members of that group are national and international NGOs, universities, professional organizations, research institutes, and quasi-foundations.42 Working with their own resources, these organizations often start out as observers—and critics— of donor-sponsored programs and then begin to sponsor small projects of their own. More recently, they have been acting as both the recipients of funding and as project implementers. This phenomenon seems most developed in the United States, but it is visible elsewhere.43 For example, several Spanish universities have become involved in Spain’s assistance programs. They, like their U.S. counterparts, started with selffunded exchanges with Latin American universities; but eventually they be-

306 Linn Hammergren gan implementing activities funded by the Spanish government or other donors. Some of these nonconventional participants have evolved as the international arms of domestically focused institutions. For example, the National Center for State Courts, the Federal Judicial Conference and Center, the American Bar Association, and several U.S. universities have developed special units for implementing international assistance projects. They took on that work, never part of their basic mandate, because members were interested in it, it complemented their fundamental work (for example, research opportunities for university staff and students), or major donors invited their participation.44 These additional actors have become a constituency for judicial reform assistance, but they are also a constituency with a desire for direct involvement.

The Political Economy of Donor Assistance: The Emergence and Evolution of Judicial Reform Programs From this quick review of two decades of donor-assisted judicial reform, a few trends are apparent. First, the amount of activity and the number of ongoing programs have increased over time and show no signs of abating. Combined with simultaneous increases in local expenditures on the judicial sector, those activities and programs have led to changes in the organization of the sector (for example, the introduction of public defenders’ services and public prosecutors’ offices), greater productivity (more cases handled), and increased accessibility (more courts, police stations, and other service units located in more areas of the country). Not only has the number of cases processed per official increased; the types of cases and methods of resolution often have changed as well in response to new kinds of clients with different demands and expectations. Critics tend to overlook these developments, yet they constitute a dramatic transformation. Still, the critics may be correct when they point to the lack of basic structural modifications or the minimal impact of judicial reforms on extrasector socioeconomic and political goals. Second, allowing for the evident differences in the size of programs, there is considerable similarity in the kinds of activities being sponsored. Everyone funds training, trips, law drafting, short-term consultants, and conferences; those that can afford them provide long-term advisers, infrastructure, and equipment. Large donors have tended to move into comprehensive, integrated, or “holistic” programs, but this often means little more than the pursuit of multiple objectives by combining an equal or greater number of project components. The strategic linkages among goals, components, and activities remain weak.

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Third, despite the tendency to categorize projects by major purpose— for example, human rights, democracy, or market development—there has been considerable convergence and mission creep, especially among the larger donors. Moreover, except for the types of law reform they support, and some restrictions on the organizations with which they can work, differences in donors’ formal justification for their work do not produce corresponding variations in what they actually do. They also have not discouraged the subsequent enumeration of longer lists of additional objectives often attached to the same activities.45 Fourth, differences in how programs are organized and conducted are for the most part a function of the agencies’ general operating rules, organization, and resources. Donors often find virtue in necessity. The fact that the World Bank works long-distance while USAID, DFID, and GTZ use incountry managers and advisers is not because the agencies decided this was the best way to conduct judicial reform programs. It is simply how they implement all projects. Fifth, the number of external actors engaged in judicial reform programs, either by financing them directly or by implementing the programs of others, has increased considerably since the early 1980s. The community of donors has grown, but there has been a still-greater proliferation of institutes, foundations, and universities that wear multiple hats: critics, funders, and implementers of programs financed by the larger donors. Finally, the number and variety of local actors involved in domestic or donor-sponsored reforms also have increased. Donor programs have played a large role here. Their resources attract new entrants; they actively seek out new partners and, in some cases, create them—witness the new public defenders’ and public prosecutors’ offices; and the changes they have helped leverage have made some latent stakeholders aware of the need to protect or the possibility of advancing their own interests. Understanding the significance of these trends, especially in terms of future developments, requires a close examination of the forces shaping them. To that end, this section looks at several aspects of international assistance: its origins, the internal politics of the agencies, and the interactions among donors. the beginnings The reform movement was not always as popular or as populated as it is today. In the early 1980s, when USAID introduced the initiative in Central America, local interest and demand were limited; the agency itself had little idea of what it intended to do; and other donor activity was minimal. Although a few organizations, like the Ford Foundation and the German

308 Linn Hammergren stiftungen,46 had sponsored small projects for years, most entered later, on the coattails of the demand created by USAID among local judiciaries, and the assistance community’s new interest in democracy and markets and in institution building to advance both. Moreover, entry in this area was relatively cheap: compared with health, agriculture, education, and other democracy programs (for example, electoral support), judicial reform seemed to offer an endless opportunity for financing courses, conferences, publications, and small pilot projects. That the sector had no development agenda of its own also encouraged this kind of work. Unused to receiving international assistance, and unclear about their needs or how donors might fill them, judicial leaders usually were pleased to take whatever was offered. In fact donors often were frustrated by the tendency of local leaders to make travel, conferences, and publications—things that seemed peripheral to reform—their priorities. Project design often became a composite of offerings, a negotiated wish list. Although the process met the requirement of local ownership, it created an immediate problem: the parties owned different parts. Contrary to stalking-horse explanations of donor involvement—that the programs were mounted to advance some hidden agenda (the U.S. war on drugs, the interests of local political allies, global capitalism)—supporters of grants and loans for judicial reform had to fight an uphill battle in the primary donor agencies. For example, despite initial high-level support, judicial reform lacked a significant constituency within USAID. It continued to be seen by those making resource allocations as a less-worthy competitor for scarce funding. In an agency dominated by experts in agriculture, health, and education, and with a scattering of recycled engineers left over from the days of large infrastructure projects, the idea that working with courts and legal frameworks would advance development goals was not readily accepted. It might never have flourished had the agency not been moving out of many of its traditional areas. In addition, Congress had earmarked funding for this and other less-conventional work in Central America as part of a fairly overt agenda of stabilizing the political situation in the region.47 In the World Bank, similar problems arose. The bank’s lawyers, in particular, fought the initiative, arguing that it breached the traditional prohibition on political intervention. It was only after a somewhat Solomonic decision to allow work in civil justice (nonpolitical) but not criminal justice (political) that projects were able to go forward. There was also the problem—shared with other agencies— of staffing the programs. Few agency insiders were interested in or had experience with judicial reform. In the World Bank, the early projects came out of a new department, the Public Sector Unit, and relied for the most part on contracted personnel. USAID created its Democracy Office for the same purpose. In both offices, most of

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the funding went, not to judicial reform, but to public-sector and electoral activities. In time, as justice reform became established in the World Bank, conflicts emerged and continue to this day between the bank’s legal department and the Public Sector Unit over program ownership. The same thing happened at the IDB. Why this affected the MDBs and not the bilaterals or the UNDP remains unexplained; but it has been a real obstacle to internal coordination. Acceptance also was gradual among the recipient nations. The initial problem was less a rejection of the idea than a failure to comprehend the possibilities. Jurists promoting code reform—the only immediate local constituency—principally were interested in drafting new laws. The donors, in a sense, created and directed the demand for their programs with their own suggestions for other activities that might be financed. Over time, the principal counterparts— courts, ministries of justice, public ministries, other sector organizations, and local NGOs, universities, and research institutes— mastered the menu and began adding items. However, in the case of both loan and grant projects, donors provided the strategic elements and justifications required for their own approval processes. That gave them considerable ability to determine the content of programs. Their willingness to act on that ability is another story. Because the executive, not the judiciary, repays any loans and often provides the counterpart funding, beneficiary institutions rarely reject a donor’s proposal. Still, donors, especially those working with loans, have to be careful. A completely uninterested partner would be of no help in getting an agreement through a reluctant finance ministry; and, even assuming that obstacle was surmounted, it might never expend the funds or complete the implementation.48 For the banks in particular, the essential dilemma is between shaping the strategic justification to what local counterparts want and trying to sell them on what bank experts think they need. Of course the more fundamental—and still unresolved— question is whether bank experts should have an opinion, or whether their role is simply to match the supply of loans to whatever countries are demanding for their courts. As judicial reform programs became more common, excluded countries or players began to request them, sometimes presenting donors with an initial proposal. This created tensions when a request came from a lowerpriority agency—a ministry of justice, for example 49— or involved activities a donor for one reason or another was reluctant to finance. Donors could finesse these requests by insisting on a sector assessment as a prelude to project design. The results of the assessment (an analysis of problem areas ranked by importance), combined with the donor’s rules, helped channel activities into more acceptable areas. Another device, used by donors with small-grant programs, was to stage a competition for proposals. Once word

310 Linn Hammergren got around, there were usually more proposals than could be financed and so an opportunity to choose those in line with the donor’s own priorities. But donors working with national-level programs often were confronted with a few large organizations so in need of reform that they couldn’t plan or execute a program and with leadership that can only be described as part of the problem. In this situation, the response of the bilateral donors and the MDBs has been quite different, a consequence, as discussed below, less of the reform environment than of the peculiar set of constraints shaping the operations of each. bureaucratic politics in the shaping of bilateral programs: the case of usaid Until the early 1990s, USAID exercised a near monopoly on judicial reform projects in Latin America and so was able to develop its approach much as it pleased. An early decision to channel much of its initial work through a UN-associated organization, the United Nations Latin American Institute for Crime Prevention and Treatment of the Delinquent (ILANUD, its Spanish acronym) proved a decided advantage for reasons no one had anticipated. USAID’s decision was based on the fear that national judiciaries would resist working directly with the United States. As it developed, that was hardly a problem. ILANUD’s more important role was to take the reform message on the road, recruiting local allies and so opening the way for the creation of bilateral projects throughout most of Central America and parts of South America. To this day, most of USAID’s projects are designed in the field; but in the early years a major role was played by the Regional Administration of Justice Office (located, like ILANUD, in Costa Rica), the ILANUD staff and advisers, and a small group of consultants and consulting firms contracted to work with them. This explains the considerable degree of similarity among the bilateral projects that eventually emerged. Even projects in Peru and El Salvador that developed in greater isolation made use of similar activities—a reflection perhaps of shared concerns throughout Latin America and of certain U.S. and USAID biases—for example, an emphasis on training and on administrative rationalization and modernization. USAID’s early monopoly on judicial reform extended to other U.S. agencies, a situation that soon would change. From the beginning, police work had been earmarked for the Department of Justice’s ICITAP. In addition, the U.S. Information Agency (USIA), now a part of the State Department, began to sponsor educational travel for judges; the Drug Enforcement Administration (DEA) held courses on money laundering and drug legislation; and the Fulbright Program and other educational-grant programs began to include judges and lawyers. By the mid-1990s, the Department of Justice, having formed a new entity for prosecutorial training (OPDAT), was

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making a case for the transfer of much of the intellectual control to its own offices. Although sharing the general concern with criminal justice, the department’s interests are necessarily shaped by its broader mandate and the opportunities for creating a regional network of like-minded professionals. The State Department’s Bureau for International Narcotics and Law Enforcement Affairs (INL) had by now entered the fray as well, providing funds to USAID projects in Colombia and Mexico with the stipulation that they be used to control drug trafficking. Although that stipulation was interpreted liberally, it did impose constraints on new programs with a high component of INL funding. In high-priority countries—Haiti and Colombia, for example—the National Security Council also was involved in setting program levels and direction. Efforts to coordinate the activities of an everincreasing number of U.S. government agencies with a stake in the matter would lead to the creation of oversight committees in individual embassies and in Washington. Here, USAID was only one of perhaps a dozen actors. To retain its projects and funding, USAID had to shape or shade its priorities to recognize the demands of other agencies; and it had to subsidize partners whose accountability for program content and expenditures was minimal. The domestic NGO lobby was another source of influence on USAID programs and of competition for assistance funds. Under the Clinton administration, there was an increasing emphasis on working with civil society partners, a trend accompanied by the recruitment of former NGO staff to policymaking positions in USAID. These partners often had better congressional contacts and so could help lobby for funds and programs. It was not a great leap from lobbying to requesting a role in program design and implementation. The request was accommodated in several ways. Some organizations began to compete for the large contracts formerly monopolized by private consulting firms; in other cases, USAID changed bidding requirements to encourage private firms to form partnerships with NGOs or created special categories for not-for-profit organizations. The process was facilitated by the elimination of the Regional Administration of Justice Office in Costa Rica and the transfer of control to Washington, much closer to the NGO constituency. In the end, the relationship had as much influence on the NGOs’ behavior as on the content of USAID programs. Participation by NGOs did encourage USAID to expand its involvement in human rights and legal assistance and advocacy, and to pay more attention to local civil society organizations. It also sharply curtailed a traditional source of criticism, as the NGOs came to understand the economic and logistical realities of managing reform assistance. If NGO participation did not dramatically alter program content, it did hamper efforts to refine methodologies and develop more-coherent strategies. NGOs, much like the collaborating government agencies, were noto-

312 Linn Hammergren rious for resisting monitoring and evaluation. USAID, lacking its partners’ political connections, often found it easier to accept the argument that the others knew better and so should be allowed to follow their instincts, rather than having to defend their methods and document their progress. USAID’s purported lack of institutional memory may be partly to blame, but the constant entry of new, well-connected government and nongovernment actors is a better explanation of the tendency for programs to reproduce old mistakes. In 1999, when the Departments of State and Justice backed the new Justice Studies Center of the Americas as a part of the Summit of the Americas, the center’s similarity to the now-discredited ILANUD was never noted publicly. Instead, those who remembered ILANUD’s fall and the highly critical GAO report (1993) issued only a few years earlier worked behind the scenes to modify the proposal so as to lessen the risk of another expensive disaster.50 Less pricey but equally predictable failures are likely because the costs of combating them are simply too high. For example, one Southeast Asian nation now has two law schools, neither of which it can afford to maintain, because a U.S. university bent the ear of the congressman from its district. USAID may represent one extreme of the bilaterals’ experience, but highly visible assistance programs always become a target of domestic political actors. When they do, strategic planning gives way to the normal tug and pull of domestic politics. Assistance agencies, lacking a well-defined domestic constituency with interests paralleling their own, are caught in a difficult bind. When, like USAID, they recruit outside support, the price is a series of compromises and trade-offs. Viewed from this perspective, the resulting programs make perfect sense, but they lose much of their strategic focus or their ability to learn from past mistakes. All new actors, and their numbers have been legion, usually identify the same simplistic solutions. By the time they have learned what doesn’t work, someone else is attempting to reintroduce the same idea. But the agency must take the blame for giving political logrolling greater importance than developing a consistent internal point of view. It is hard to negotiate in the absence of a position, and often that appears to be the best characterization of USAID’s situation. From the standpoint of the agency’s survival, that makes a certain sense; the consequences for its reform strategy are far from positive. organizational politics and the mdb programs: the world bank USAID’s development of coherent reform strategies has been hampered by its relationship with other domestic actors. The MDBs have been spared this problem. Instead, they have been affected more by their internal processes. Two aspects of internal conflict already have been mentioned: the

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early resistance to the initiative itself and the subsequent battles over ownership. More important factors are a product of the banks’ standard operating procedures—specifically the emphasis on loans as opposed to grants, on host-country implementation, and on long-distance planning and supervision. All of these reduce the MDBs’ influence both on a project’s content and, more important, on its progress once the loan agreement has been signed. The fact that the judiciary does not repay the loan makes it a lessexigent debtor; still, the knowledge that they are negotiating a loan, and that the other party could refuse it—less likely with a grant—may discourage the banks’ staff members from pushing difficult details. This is especially important because in the World Bank’s structure, it is the country directors who ultimately decide which staff member manages a project. The directors know little about justice, but they do keep track of the size of their portfolios. Even potential managers with the enviable advantage of being on-site (and so having an automatic first chance) are well aware that their value in the end rests on producing loans. In any case, a project agreement can only include so much. Efforts by World Bank task managers to start with detailed implementation plans generally are not reflected in the agreement itself, which lists only the major components and the inputs and outputs associated with each of them. There is a fine balance between specifying enough steps and sequences to shape the implementation process, and painting oneself into a corner because of the ultimate unpredictability of how events will work out in practice. After a decade of experience, bank staffers can anticipate some of the likely problems and setbacks; they also have learned the futility of trying to apply a blueprint design. Some obstacles simply cannot be predicted. As events unfold, there also are likely to be unforeseen opportunities. But an open-ended agreement gives the bank and its task managers very little leverage for influencing implementation. Because most of its judicial reform projects in Latin America are investment or technical assistance loans, the World Bank does supervise the contracting process to ensure compliance with its rules on fair and open competition. It also monitors disbursements, the physical progress of the various components, and compliance with conditionality. Although task managers make periodic visits to recipient countries, the standard few days to a week every six months make it extremely difficult for them to assess the quality of performance. Where funds are available—and increasingly they are not—a task manager may hire specialized consultants to oversee progress and provide on-site advice; where a locally financed unit is responsible for implementation, the task manager may make suggestions about the need to hire consultants to improve the unit’s work.51 But if a project’s local counterparts refuse the advice or resist the suggestions, the task manager has few options.

314 Linn Hammergren The most obvious one, stopping disbursements, is tantamount to an admission of failure. Moreover, in the absence of evaluations or knowledgeable in-country staff to provide additional information, disbursements are the primary indicator of a project’s progress. The task manager’s main concern, then, is to keep the money flowing. This incentive system also discourages the task manager from conferring or sharing information with other inhouse staff members. To do so runs the risk of creating knowledgeable critics, some of whom may be competing for control of the project. The loan format, the organization’s tendency to associate importance with funding amounts, and the inherent difficulty of controlling or evaluating the quality of outputs, all have biased World Bank projects toward commodities and other expensive and visible products—for example, training programs, new laws, diagnostic studies, and the production of training and informational materials. To be fair, one cannot evaluate programs only in terms of where they place their resources. Some necessary but lowerpriority items are inherently more expensive; while others, more vital to real reform, cost little or nothing (specifying appointment criteria, prohibiting the employment of relatives or the holding of multiple jobs, publicizing the results of disciplinary proceedings) or are not suitable for donor funding (raising salaries or redeploying staff to outlying areas). Even if a new law is more important than a new courthouse, it should hardly receive more funding. And because these are loans to governments, naturally those governments are going to spend all or the lion’s share on government institutions. Ultimately, of course, judicial reform programs depend on the government’s cooperation. The real question, then, is not whether the World Bank or the MDBs as a whole are spending their money on the right things, but rather whether they are using their money to leverage the right developments. Despite certain obvious advantages in what they can fund and in how they manage programs, the same question could be asked of the bilaterals, the United Nations, and the various foundations and other nongovernmental organizations. For better or worse, traditional investment loans may be on their way out. The MDBs’ work in judicial reform, if it continues, may be carried out through conditionality, structural adjustment and budgetized sector loans, or long-term program loans. In any of these forms, the question of what is being financed becomes far less relevant, and that of leveraging much more so. There are two considerations here: the banks’ ability to select the most relevant conditionality, and the recipients’ ability to comply with it absent the more-structured setting of an investment loan. In terms of the first, at the very least the banks will have to develop a better handle on sector operations and the kinds of developmental obstacles they pose. To date, the only

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objective indicator they have devised is some variation on delay reduction (time to resolution, backlog reduction, clearance rate, or cost per case resolved). In many countries, it would take years to develop reliable statistics to measure progress in this area. Then there is the additional question of whether that indicator really reflects the most significant problems. Delay is important, but in many countries it takes a back seat to corruption, incompetence, limited access, politicization, and bias. Creating indicators of progress in these areas will not be easy; but without them, conditionality is skewed toward efficiency alone. The second problem, which extends to the World Bank’s efforts as currently structured, is the question of how countries with truly backward sectors will find a way to meet conditionality. The new modalities suggest that the only obstacle to improved justice in Latin America is insufficient funding. Of course, today, no one believes that. Setting countries loose with $20 million or $30 million and instructions to increase access, speed up decisions, or decrease corruption within five years is an extremely long shot. Assuming the bank has an idea of how the goals should be achieved, staggered conditionality —which essentially traces the steps of the process by establishing baseline statistics, diagnosing and evaluating the types and causes of limited access to judicial institutions or of delay or of corruption, and finally designing and implementing remedies—might work. From a technical standpoint, the method is no improvement over an ordinary project and offers less opportunity for midcourse corrections if the initial projections do not hold up. In short, the new nonproject programs might advance institutional reforms in those few countries that know what they want to do and how they want to do it, and lack only the funding to carry out their plans. For the rest, it appears to be an invitation to run up large debts for very few real improvements. donor cooperation As the preceding discussion hints, donor cooperation comes close to being an oxymoron. It is not inevitable that donors facing internal conflicts and inconsistencies in their individual programs should carry them over into their interactions with other assistance agencies; but unfortunately, that appears to be the case. The result is still more redundancy and conflict. Despite highlevel meetings where cooperation and coordination are promised, with a few notable exceptions, in-country donor cooperation at its best means staying out of one another’s way.52 At its worst, it begins to look like the dark side of political campaigns, high-stakes sports matches, and industrial races for a larger market share. Most of this is petty stuff, the tactics of overly aggressive or ambitious staff.53 The worst cases are natural outgrowths of the

316 Linn Hammergren organizations’ incentive systems, occurring with neither the direct encouragement nor the knowledge of higher-ups. However, some agencies do discourage their staff members and consultants from sharing information with others, and certain of them do seem to emphasize getting there first with the largest project. National counterparts usually are aware of the competition among donors. Sometimes they complain about it; but they also use that competition to negotiate better deals with individual donors. Unfortunately, all the behind-the-scenes dealings have not produced one potentially beneficial consequence. Donors do not openly comment on or criticize the programs of others, no matter how inappropriate they think the content or objectives of those programs or how poor they believe the choice of national counterparts. This unspoken rule, part diplomacy, part fireman’s syndrome (“don’t step on the hose or you will cut off all the water”), means that the donor community does not police its own actions, and that the prevailing technical and ethical standards are what each member decides to honor.

By Way of Conclusion: A Balance Sheet on the Reforms and How They Might Be Improved It is always easier to explain why something has fallen short of expectations than to devise suggestions for improvement. Fallen short is the key phrase here. It would be an enormous injustice to argue that donor programs have accomplished nothing. Even had their achievements been limited to furnishing courts with new infrastructure and equipment, they would have filled a real need and given the judiciary the means and incentives to work on future improvements in the services they provide. The amounts spent on travel, training, conferences, and publications have at least exposed participants to new views about the potential for change and their own roles, and motivated some of them to act. They also have supported a small community of Latin American practitioners and scholars whose innovative ideas about the direction of reforms frequently go far beyond those of the donors.54 And then there is the whole middle range of reorganizations, new procedural codes, and updated management techniques and technologies that have directed and accelerated the sector’s passage into something approximating modernity, focused attention on its performance, and introduced sector officials to the concept of planning institutional change. This could have been done more economically; but, with a few exceptions, the effects of judicial reform in the region seem stable, relatively irreversible, and generally beneficial.55 This said, a hard look at donor-assisted justice reform in Latin America raises several obvious questions:

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• In the scheme of things, was judicial reform the best use of funds? Or would more important results have been derived if some or all of the hundreds of millions of dollars spent on justice programs had been used for health, education, or some other sector? • Were the diseconomies unusually high? And, if so, are there ways to reduce them significantly? • Assuming that donors are going to continue to work on justice reform, are they addressing the right objectives in the right way? what are the opportunity costs of justice reform? Despite its centrality to the entire undertaking, the first question still cannot be answered. Today, one can present the effort as a response to local demands, but these were demands the donors helped created and they stem from only a portion of the potential stakeholders. The reforms also can be justified as a means of improving a service the state would provide and pay for anyway, possibly freeing up state funds for other uses. However, most programs have looked beyond these arguments to the broader impact of reforms— on democracy, on equity, on markets. To date the connections are tenuous at best. Consider democracy. Most arguments that judicial reform strengthens democracy rest on the legitimacy a well-regarded justice system confers on other political institutions. Given the negligible progress the programs have made in improving the image of the judiciary, even if the relationship holds we are lacking the first element. The effect on equity would seem to rest on the content of reform. When that content has been designed with a promarket thrust, observers raise questions about the impact on equity (Thome 2000; Tshuma 2000): reforms that focus on economic efficiency might in fact “favor . . . those who already have wealth” (Tshuma, 23). Earlier warnings about an antipoor bias in criminal justice reforms are now less pronounced—given indications that the poor themselves want more effective criminal justice systems—but they are hardly gone.56 These are theoretical arguments; there has been little effort to test the hypotheses. Various studies have attempted to establish the costs of an inefficient or ineffective justice system in terms of economic growth and investment (see Burki and Perry 1998, chap. 4; Castelar Pinheiro 1998; Lynch 2000; and Sherwood, Shepherd, and de Souza 1994), but we are far from being able to define the relative impact of a dollar spent on justice versus some other area. Our inability to clarify these issues complicates the answers to the other two questions. Still, so long as donors continue to determine the areas in which they work in accord with their own ideological agendas and preferences, as well as those of their institutional constituents, then any room for immediate improvement remains at the other levels, defining the objectives

318 Linn Hammergren of that work and devising the most effective and efficient means of achieving them. has there been waste, and could it have been avoided? The answer to both parts of this second question is yes, but less emphatically so than in a number of more-traditional areas of donor work. The difference is essentially one of total costs. Even the largest judicial reform project is dwarfed by grant and loan programs in other sectors, and the latter are not famous for their efficiency either. Also, because judicial reform is a relatively new area of assistance, there were bound to be missteps and waste at the start. There is more reason for concern with recent trends that suggest certain structural biases against increased efficiency at all levels of assistance programming. These phenomena are not unique to judicial reform programs; but they may be more difficult to contain because of persistent disagreements over program objectives and their means of attainment. The fact that donors compete for program ownership, as do national stakeholders, tends to drive up costs, encourage redundancy, and discourage coordinated programming. For the banks, bigger is always better. Although bilateral donors face upward limits on their grants, they have yet to forgo placing one solely because another donor was already there. Moreover, the bilaterals’ politics of organizational survival frequently dictate internal allocations that are anything but economical. Despite periodic complaints about the amounts paid to for-profit contractors, USAID usually can hold those costs down.57 The real problems occur in trying to manage the budget it has passed through to another U.S. agency or a well-connected NGO, divert their activities into more useful areas, or eliminate unsound proposals. Considering the potential repercussions—an angry message from a member of Congress, or from the higher reaches of the Justice Department or of USAID itself—most project managers would decide that a superfluous consultant, course, or trip, or an excessive payment for any of them, is not worth fighting. Aside from these perennial problems, the new turn to results indicators (USAID) or conditionality (the World Bank) does not bode well for efficiency; although it might, if we had better measures and a better handle on reasonable costs.58 Because we do not, by the time the results are in, the mistakes already have been made and most probably will never be noticed. are these the best objectives and the best means of pursuing them? Given the origins of the inefficiencies in the programs, it seems unlikely they can be combated without a serious attempt at answering the third question. Twenty years into the process, it is time to reconsider some of the initial assumptions, if not as to the downstream effects than at least as regards

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what improving system performance means, how much can reasonably be done, and by what mechanisms. There may never be complete agreement as to which objectives are most important, either in individual countries or worldwide. Within each of the broad categories—access, efficiency, integrity, essential fairness, and civil and human rights—we can now come much closer to defining the range of realistic targets, identifying the broader costs and benefits of meeting them, and specifying the mix of elements needed to advance them. We also can begin to consider the intrinsic contradictions in the various objectives and the kinds of trade-offs real reforms inevitably will include. Until now, virtually all donor reforms have been justified in terms, not only of the hypothesized long-range impact, but also of their assumed ability to advance all the short-term improvements simultaneously. In this second area, it is fairly clear now that the expectations are false. Basic performance variables like access, timeliness, predictability, and costs at some point come into conflict with one another.59 As programs increase access—by building more courtrooms or by making legal aid available, for example—the number of cases entering the judicial system is going to increase, and that can erode the impact of programs working to reduce delays. Or, a logical way to reduce caseloads and so delay is to impose fees or place restrictions on the actions of litigating parties. Although measures like these would curb demand and probably increase predictability, they obviously would limit people’s access to justice. Access and timeliness—but not predictability— can be advanced simultaneously, but only with substantial and continuing investment of public funds. For the most part, participants in Latin American reforms have chosen to ignore these interactions and their implications for reform planning.60 As a decade-long tendency to increase court financing comes to an end, the participants may be forced to take a second look. Asking donors or national planners to resolve the trade-offs may be premature. A more-immediate priority is forging a consensus on the technical parameters of judicial reform: What is possible? Under what conditions? And what has proved not to work at all? Only with a consensus on these issues can the process of rationalizing a program, of linking specific inputs to specific outputs, rise above mere ideological bias and wishful thinking. By now, judicial reform programs have sponsored enough training, code reform, modernization of court administration, computerization, public education campaigns, and legal assistance to allow a comparison of the outcomes within and among different categories of activities. Cumulative experience is a basis for identifying the best practices within each category, the extent of change they can leverage, and the necessary complementarities with other kinds of actions. To go further without attempting to consolidate these lessons is an invitation for continued waste. Until there is explicit recognition

320 Linn Hammergren that teaching courses on ethics will not end corruption, that new laws do not automatically change behavior, that building courthouses will of itself not enhance access, or that access cannot be increased indefinitely because there is a physical and financial limit to what the courts can bear, proposals based on the counterarguments will continue to flourish. some final thoughts: why the questions still have no answers and how we might reach them For all their disagreements, there seem to be common understandings among those working on assistance programs in health, education, and agriculture as to reasonable goals, the means most likely to achieve them, and the kinds of trade-offs most often encountered. Why hasn’t a similar consensus been reached in judicial reform? One obvious answer is that it is not in the interest of certain stakeholders because it might seriously undercut their ability to control the distribution of resources or even to hold off fundamental reform. Yet there are vested interests in health, education, and road building. Although they can be very effective in blocking the approval and implementation of programs, they have been less successful in discouraging broad-based debate over what needs doing. Participants in these programs still have their disagreements, but at least they know what they are arguing about. Perhaps in the case of judicial reform it is simply too early. We may still be at the stage of building hundreds of health posts only to discover they will never be staffed or equipped, or investing in curative medicine when primary and preventive health care makes more sense. Nonetheless, certain characteristics of the judicial sector may draw out the learning curve to unusual extremes. One is the failure to develop a complementary economic discipline focused on the internal dynamics of the sector.61 If nothing else, this type of economic analysis forces advocates to be more specific about the absolute levels and distribution of costs and benefits. Absent this attention to the microeconomics of their proposals, the more-is-better approach of many justice reform advocates— even those critical of existing projects— reduces reform programming to a question of relative political clout. Another characteristic unique to the area of judicial reform arises in what one critic calls the antiscientific bias in the legal culture. Writing about the situation in the United States, Gawande (2000) argued that “the legal system takes its methodology for granted. . . . [It] is in thrall to a culture of precedent and convention, not of experiment and change” (53). In a similar vein, a Latin American lawyer (Sáez 1998) notes that law is essentially a backwardlooking discipline, finding its truths in doctrines developed decades if not centuries before. Finally, law is also a culture of advocacy, where the point is less to test a position than to overcome the opposing arguments through a

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combination of logic, rhetoric, and a collection of supporting “facts.” 62 These three characteristics—the absence of microeconomic diagnostics, the rejection of experimental methods, and a reliance on advocacy—may well explain the lack of progress in using experience to build and improve common strategies objectively. Charges fly back and forth about the impact of reforms, but what passes for evidence is short on rigor and long on anecdotes, illustrative statistics, and speculation. And although one might blame the lawyers for transferring their courtroom style to the social science arena, other disciplines drawn into the fray seem to have adopted it quite readily. As many newcomers sooner or later note with some shock, the judicial reform community seems unusually beset by internal conflicts and relatively incapable of dispassionate reflection on its member’s individual and collective successes and failures. What needs to be done is obvious. Both donors and national counterparts have to become more serious about articulating their strategies, specifying their working hypotheses, and evaluating program results. How this can be accomplished is the puzzle. There are members of both groups who recognize the importance of moving in this direction, and there are even a few signs that they may be doing so. Throughout the region, networks of scholars and judicial professionals are beginning to discuss the need to construct reform on more than opinion and received wisdom, to reexamine the traditional understandings of judicial functions and problems, and to suggest radically different means of resolving them.63 But for those directly engaged in reforms, the disincentives and risks are high. This is a true prisoner’s dilemma, in which a unilateral cooperative strategy could be fatal for the donor, project manager, or court official choosing it. Admitting that one’s own project is not succeeding, questioning standard processes and assumptions, or suggesting that a court president’s pet idea is based on a flawed analysis is tantamount to professional suicide for anyone wanting to remain in the game. Until all of the participants decide otherwise, the initiative may best lie with outsiders, with academics and advocacy groups more interested in developing policy than being paid to execute it. But to assume the role of constructive critic, they will have to learn more about what the projects actually are doing (which means penetrating the secrecy that surrounds many of them), ignore any bias they may have for or against the players, increase their substantive command of programmatic details, and develop an understanding of the process of institutional change. The tack usually taken by such outsiders is an unsolicited evaluation of one project or one donor’s work. It arguably is not the most productive method for getting access and funding or for producing useful results. Although certain donors tolerate external studies, they tend not to take the results seriously or to respond defensively.64 A more practical approach might

322 Linn Hammergren be to focus instead on a comparison of a single set of objectives or activities across different projects and different donors. Even if a study initially was limited to interviewing project designers about their activity-specific strategies, reported accomplishments, and measures of success, it would represent a significant advance in establishing a framework for further evaluative research. Because this kind of partial evaluation—not the entire project but one component, and not one project but a larger sample—is less threatening to individual donors, if backed by convincing expertise, it actually might attract donor funding for additional fieldwork. It also is a sound basis for building an applied science of judicial reform. However, its successful implementation would demand a change in the academic culture. For their work to be credible, the researchers would have to remove, temporarily at least, their other hats, those of sponsors and funded implementers; they cannot be involved in carrying out their own reforms while simultaneously examining the shortcomings of others. The material and allies for this kind of endeavor are there; the challenge is to make a serious start at utilizing them. Expecting concerned academics or academic practitioners to come to the programs’ rescue may be the height of irrationality. Possibly there are other, more practical ways to forge a consensus on past errors, the need to rectify them, and the new approaches worth exploring. Still, judging by trends in other areas, having an applied discipline would help. The immediate obstacles to better programming are political, organizational, and institutional; and they are embodied in donors and cooperating governments alike. The crux of the problem lies in recognizing what we know and acting on it. This would appear to place the advantage with the academics and research institutes. So it is a consolation, albeit a small one, that at least one Latin American university now has a chair in judicial reform, held by an academicpractitioner.65 Academics can make egregious errors; and they certainly have their own internal disagreements and biases. Yet a quasi-independent disciplinary home, dedicated to collecting, analyzing, and disseminating a common knowledge base, might at least challenge the worst of the slogan-based programming or the reluctance to examine an assumption because it is critical to “everything the . . . [organization] has been saying.” 66

Notes The opinions expressed here are those of the author and in no way reflect the official position of the World Bank or any of the other agencies covered. 1. Technically, judicial reform should refer to the work of the judiciary alone.

International Assistance to Latin American Justice Programs 323 What most donors now do is more appropriately called justice reform, because it includes other institutions. Here we use the two terms interchangeably. 2. Some agencies, like the Asia and Ford foundations, cut back on their support after the heyday of law and development, but never withdrew it entirely. 3. See Gardner (1980) for a critical discussion of the law and development program. 4. A sampling of USAID reports would include Checchi and Company Consulting (1991); Chemonics (1996); Development Associates (1996); Espinosa (1997); ILANUD (1991); Leeth et al. (1997); Mudge (1997); Mudge et al. (1988, 1996); Crohn and Davis (1996); Rico, Salas, Gutiérrez, and Cruz (1993); Salas and Rico (1989a, 1989b); Solís and Wilson (1991); and Thome (1992). Most are assessments and evaluations. The works by Rico et al., Salas and Rico, and Solís and Wilson are privately published versions of USAID-financed studies. 5. Criticism of the banks’ lack of transparency is altering this practice. The World Bank, for example, now makes more project documentation available on the Internet. 6. See, for example, works by Buscaglia and Dakolias (1996); Buscaglia, Dakolias, and Ratliff (1995); Dakolias (1995); Messick (1999); Shihata (1997); Webb (1996); and articles in IDB (1993) and Rowat, Malik, and Dakolias (1995). 7. DFID is Britain’s Department for International Development; GTZ is Deutsche Gessellschaft für Technische Zusammenarbeit (German Technical Cooperation); and CIDA is the Canadian International Development Agency. 8. Members of this third group wear several hats: they may fund or conduct their own studies and evaluations of reform programs, finance small action projects, and compete for funding from the larger donors. They are increasingly involved in implementing parts of projects financed by the latter. 9. Outsiders often ignore the fact that the MDBs are banks, that they obtain their working capital by issuing bonds backed by member countries, and so cannot simply give this money away. Their ability to make some loans at below-market rates (to the poorest nations) and to fund their internal costs derives from the split between the interest on their own bonds and the returns from their normal lending and trading operations. Member nations also provide some grant funds, but they usually earmark it for specific purposes, most often technical assistance to be used in preparing loans. For the MDBs to change to a grant format, contributing members would have to increase their grant contributions substantially, something that most do not appear inclined to do. 10. Budgetized loans are incorporated into the recipient’s ordinary budget, to be used as the country or government entity deems best. In addition to savings in supervisory and reporting costs—no one tracks the use of the funds—the argument in favor of these loans is their flexibility: the country or entity does not have to follow a blueprint for spending. The argument against the loans, of course, is that the recipient could spend the funds on irrelevant items without ever producing the agreed-on results. Although that outcome precludes a second or third tranche (because the conditions are not met), the initial investment is lost.

324 Linn Hammergren 11. Some of them never really made project loans, unless one counts the financing of a trip, training, or a conference. 12. These include the much-criticized practice of hiring local experts as consultants when, in fact, they are doing ordinary government work. The usual justification is that salary ceilings impede the recruitment of well-qualified individuals through normal channels. Donors have begun to recognize the conflict inherent in encouraging public-sector rationalization (or more efficient use of resources) through programs that rely on contracting local “consultants” at unusually high salary levels. Fortunately, justice reforms were never good candidates for this practice because no government wants to have donors pay its judges and other court staff. 13. The following discussion draws on the author’s own experience with agency projects, supplemented by extensive discussions with other participants, formal interviews, and a multitude of internal and external studies and evaluations. These programs have been called administration of justice, rule of law, legal, legalinstitutional, or justice reforms. The content of the programs has been more stable than the changing titles imply. For overviews, see Alvarez (1992); Blair and Hansen (1994); Carothers (1998); articles in Domingo and Sieder (2001); Hammergren (1998a, 1998b, 1998c, 1998d); and WOLA (1990). 14. The agency’s justice reform work often is complemented with police assistance provided by ICITAP (and other government offices). This total-cost figure includes some but not all of the ICITAP work. 15. More-recent figures are not available. Although USAID continues to develop and fund projects in Latin America, annual commitments have decreased in recent years, in part because resources are being channeled to other regions, most notably Eastern Europe and the former Soviet Union. 16. By contrast, in regions like Eastern Europe and the former Soviet Union, market development, and so commercial law, is of equal importance to human rights and criminal law. 17. For a detailed discussion, see Hammergren (1998a). Readers suggest that I may be giving USAID too much credit for a conscious strategy and that the purported model may not be recognized by most participants. 18. One ominous sign is the recent emergence of “opportunistic” reforms promoted by governments with little interest in judicial independence, institutional development, or improved procedures in the conventional sense. The Fujimori reforms in Peru are widely interpreted in this light (see Hammergren 1998e). Observers have commented in a similar vein in the case of Mexico (Domingo 1997; Finkel 1997; González Oropeza 1996), Argentina (Verbitsky 1993), and Colombia (Gómez Albarello 1996), arguing that traditional reform mechanisms (appointment and career systems, judicial councils, and constitutional courts, for example) are being used to divide the judiciary and to entrench judges presumed to be loyal to the current regime. 19. This was largely office equipment, computers, some vehicles, and published materials. In the Colombian project, a large amount went to protective gear for judges. 20. As noted above, the results framework focuses on outcomes; it does not re-

International Assistance to Latin American Justice Programs 325 quire an explanation of how they will be achieved. However, unlike pure nonprojectized lending, all funds are spent in furtherance of the objectives, and their use is tracked. The mechanisms for achieving the results simply are not considered in evaluating the success of the programs or determining their feasibility. 21. For example, a long-term consultant in El Salvador, working with the Procuraduría General, a legal-aid agency, designed and implemented a new intake system to help women claim child support. It was not part of his work plan, but day-to-day contact with the institution both convinced him of the need and gave him the opportunity to do something about it. 22. See articles in Crohn and Davis (1996) for examples of program content. Correa Sutil (1999); Costa Rica Supreme Court (n.d.); Gregorio (1995); Guatemala Supreme Court (1994); and Haeussler (1993) give examples of the nationalization of these issues, especially in the area of training. 23. What constitutes a better criminal investigation is a matter for debate and, even where agreement exists, is difficult to measure. Usually emphasis is placed on the type of evidence collected, its handling, respect for due process rights, and the level of coordination between the police investigator and the investigative judge or prosecutor. USAID’s program in Panama attempted to introduce such indicators; one problem is that reviewing staff in Washington, far removed from the problems, had some difficulties understanding their significance. See Development Associates (1996) for a brief discussion of the indicators. Satisfactory usually is defined in terms of selected contextual problems. Among the definitions are verdicts “based on evidence” (in many countries, they commonly were not); verdicts in accord with standardized legal interpretations (determined either by an expert review of selected verdicts or by rate of reversals on appeal); and verdicts demonstrating an internal logic (again based on a review of judges’ decisions, which have been criticized in many countries for defying rules of logic). Tim Cornish (former chief of party for the USAID Guatemala project), Luis Pásara (MINUGUA, the UN Verification Mission in Guatemala), and Carmen Blanco (consultant to the World Bank’s Bolivia project) helped inform this discussion. 24. See U.S. GAO (1992, 1993) for criticisms and lengthy USAID responses. 25. The legacy of the law and development movement discouraged attention to law schools for years. Today the attention is there, but few donors are willing to finance a program that might take twenty years to have a visible impact. Moreover, few cooperating countries have any interest in the area. 26. This section draws on World Bank documents, my own observations, and discussions with participants. For overviews from World Bank members, see Dakolias (1995), Webb (1996), and articles in Rowat, Malik, and Dakolias (1995). The World Bank’s first judicial reform project was a small loan to Argentina for the government’s rather ambitious plans for restructuring the federal judiciary. Both the loan program and the restructuring suffered considerable delays; and it was only in the early 1990s that the bank began a larger project in that country. 27. Facing internal conflicts over whether the World Bank could do judicial work, the bank’s legal department issued this interpretation of the restrictions in its articles of agreement. (The arguments are too complicated to go into here.) Also,

326 Linn Hammergren civil and commercial law seemed more in line with the bank’s mandate to promote economic development. 28. The project subsequently was redesigned (see Lawyers Committee and Venezuelan Program 1996). 29. Councils are external bodies, often composed of representatives from all branches of government and some professional associations. Their usual function is to help select judges; but in a few countries they also perform administrative and governance functions. See Hammergren (2002); and Rico (1993). 30. After several years of enthusiastic adoption of judicial councils, many Latin American countries are reexamining the presumed superiority of this form of judicial governance. Venezuela recently eliminated its council (which created the reverse problem—power moving from the council to the high court—in terms of a project there). Colombia apparently will follow suit. The World Bank has no position on the matter and no institutional policy to deal with these power struggles. Specific responses vary from a real or threatened termination when a conflict between institutions gets out of hand, to letting the parties work it out, to supporting whomever seems most inclined to push the project forward. For a discussion of the Latin American debates over the council model, see Hammergren (2002). 31. The World Bank is not alone in its failure to evaluate pilot case-tracking systems. This is surprising given the importance those systems are accorded, the initial investment in the pilots, and the amounts that will be required to replicate them systemwide. USAID (2001) recently financed a review of systems developed in several countries; the analysis suggests that none of them merits replication elsewhere, although each may serve its purpose in the country where it was developed. Given the speed at which technology is evolving, it is not surprising that a system designed several years ago is no longer state of the art. The most important lessons from this comparative evaluation are procedural ones—how to go about designing and implementing a case-tracking system. 32. There is a high incidence of debt collection cases, including debts owed to or by the state, and frivolous or bad-faith litigation in the courts. There also are very permissive policies on appeals. In many countries, a lack of any binding precedent means that the courts are flooded with cases that essentially are litigating the same issue, often a government policy. Even when judges rule against the government, other parties attempting to access their rights must still go to court. This has clear advantages for the government and other defendants who can postpone or avoid payments to all potential plaintiffs. It also wastes court resources. The more general argument is that the failure to manage caseloads aggressively increases congestion, undermines delay reduction programs, reduces juridical security, and may drive out cases of more intrinsic social interest. See Shavell (1997) for a discussion of differences in the public and private objectives of litigation and the costs of recognizing only the latter. 33. USAID’s Global Democracy Center has issued two external contracts to review the agency’s experience in improving court administration and increasing judicial independence. It also financed an in-house exercise to compile lessons from the Latin American projects (see Hammergren 1998a, 1998b, 1998c, 1998d).

International Assistance to Latin American Justice Programs 327 The IDB’s work is less systematic and, generally, not public. But the bank has carried out at least one internal review and contracted one external evaluation of its programs. 34. This sections draws on my observations and discussions and formal interviews with participants, and a limited amount of written documentation. I am particularly indebted to Christina Biebesheimer and Stefano Tinari of the IDB; Aura Feraud, local manager for the IDB project in Panama; and Gabriela Fernández, a former consultant to the IDB project in El Salvador. 35. That the IDB works in criminal justice and the World Bank does not can be explained only by the wording of their articles of agreement and the interpretations developed by their own lawyers, probably more the latter than the former. It also should be remembered that the World Bank has more country members and thus more perspectives to consider and more interests to satisfy. 36. Biebesheimer (2001) is a good source for details on the IDB. She lists thirteen loan projects and seventeen smaller grant-funded programs. However, several of the former are elements in larger public-sector efforts, and progress on others appears minimal, suggesting that the IDB’s actual level of effort may be closer to that of the World Bank. 37. Along with Brazil and Mexico, Argentina is one of the three Latin American nations with fully independent subnational (provincial or state) court systems. The early termination of the IDB effort appears to be the result of the Argentine government’s shifting priorities. 38. Unlike the World Bank, the IDB often does multiple assessments with a wide range of external consultants. As demonstrated by Montes (1996), the assessments can be quite critical—although, again, they are not available to the public. 39. This is an area the IDB stresses, with a particular focus on violence in urban areas and involving juveniles. The municipal projects in Colombia are examples of its work. 40. This section draws on my observations, discussions, and formal interviews with participants, and written documentation. I am particularly indebted to Jorge Obando of the UNDP. In their English translations, ONUSAL is the UN Observer Mission to El Salvador; MICIVIH is the International Civilian Mission in Haiti; and MINUGUA is the UN Verification Mission in Guatemala. 41. This role, in both aspects, recently has provoked controversy over the UNDP’s apparent willingness to follow whatever instructions are given by the sources of financing. For example, its management of funds provided by the Fujimori government during the 1990 reforms has been criticized for allowing irregular contracting procedures and excessive payments and salaries. The irregularities were ordered by the government but were in violation of its own rules. 42. In the United States, for example, quasi-foundations would include the National Endowment for Democracy, the National Democratic Institute, the International Republican Institute, Freedom House, the Carter Center, and a variety of other organizations with an interest in human rights, legal issues, or civic affairs. 43. Discussions with members of CIDA, the Canadian assistance agency, suggest

328 Linn Hammergren that their own “partnership activities” are largely the result of lobbying by Canadian NGOs. The NGOs receive funding to work overseas, often in partnership with local NGOs. 44. USAID actively campaigned to involve the National Center for State Courts and the Federal Judicial Center in its programs. 45. The most dramatic example of this phenomenon is USAID’s presentation of its due process criminal justice codes as vehicles for enforcing law and order. The codes remained the same, but regional concerns about escalating levels of crime required that they also figure as solutions for that problem. 46. The most famous of the stiftungen efforts is a ten-year program in Peru to train lay justices of the peace, sponsored by Germany’s Naumann Foundation (Brandt 1990). 47. See Alvarez (1992) for a discussion of early justifications and developments. 48. This problem extends even to grant funding. As a first-time project manager in Peru in the mid-1980s, I left a good deal of execution to the three partner agencies (the Supreme Court, the Ministry of Justice, and the Public Ministry). The Court, through a mixture of noncomprehension and lack of interest, never drew down some of its funds or, when it did, failed to spend them. 49. In Latin America, ministries of justice, when they are at all active, commonly are used to exert executive control over the courts. Unfortunately, ministry heads often are quicker to perceive the advantages of foreign assistance than are the members of the judicial branch. By the same token, the ministries can be useful shortterm allies of reform programs. The challenge is to get them out once they have leveraged the initial changes but before they assert or reassert too much control over the courts. 50. In brief, USAID had attempted to shift ILANUD’s function to project implementation, a role for which it had not been prepared. Ultimately, the United States withdrew its support for the institute. The GAO, which became involved toward the end of the process, failed to acknowledge the positive work ILANUD had carried out earlier and so was unduly critical of the entire experience. Two further lessons of immediate relevance to the 1999 proposal are that regional agencies rarely graduate from a dependence on donor funding; and that when they try to operate on the basis of contracts for project implementation, their role as objective promoters of reform is quickly undermined by the need to market their services. 51. Ironically, in some cases it is easier to send a consultant than a bank staff member because some member countries make available what are called “consultant trust funds,” usually earmarked for contracting their own nationals. These funds cover labor and travel expenses, but only for outside consultants. The funds are a useful supplement to supervisory budgets, but having to identify a suitable expert from a specific country is one more burden for task managers. It is also an obstacle to knowledge sharing within the World Bank because it encourages task managers to work with teams of external consultants rather than their own colleagues. 52. One outstanding example is the cooperation between USAID and GTZ in promoting the implementation of Bolivia’s new criminal procedures code (inter-

International Assistance to Latin American Justice Programs 329 views with Joseph Caldwell, USAID consultant, and Horst Schonbohm, GTZ, La Paz, Bolivia, 1998 and 2001). 53. Except for the broader consequences, some of these tactics have comic value— courting potential counterparts with trips and similar incentives, spreading rumors about the motives of others, trying to convince national officials to give one agency control over all assistance funds, playing on colonial ties or national animosities, even stealing another donor’s design work. 54. For examples, see the works by Colombia Comisión de Racionalización (1996); Correa Sutil (1999); Correa Sutil, Peña, and Vargas (1999); FIEL (1996); and Pásara (2000a). 55. One exception is Haiti. Although it pulled its punches, the GAO evaluation (2000) of U.S. and other donors’ police and judicial reforms in Haiti suggests that a good deal of the vast amounts expended was wasted, given the Haitian government’s lack of interest in or capacity for supporting and sustaining the intended improvements. There are also any number of minor examples, ranging from unreplicated pilot projects to abandoned computer systems, where for one reason or another the initial investment appears to have reached a dead end. There are some dissenters here. One Peruvian expert, long associated with Latin American reforms, now maintains that the entire effort to introduce new criminal procedures was misguided, that it produced no real improvements and possibly aggravated some problems (Pásara 2000b). 56. For a recent variation on the theme, see Méndez, O’Donnell, and Pinheiro (1999). 57. See Brody (1999); and, generally, Méndez, O’Donnell, and Pinheiro (1999) for examples of these complaints. 58. While USAID and other bilaterals seem to err on the side of drastically underestimating costs, the banks often go in the other direction. More important, the estimates are based on an initial set of inputs—which themselves may be far from sufficient to deliver whatever results are being pursued. Whether they are contemplating new courthouses, public education materials, or grants to NGOs, donors usually choose their initial targets arbitrarily, with no visible consideration for what might be a critical number required to leverage some higher-order change. 59. Recent discussions in the United States, Europe, and other developed countries focus on these trade-offs. See Zuckerman (1999) for a brief discussion in the context of civil justice. 60. The closest they have come is the use of fees to finance court budgets and/or to hold down litigation. Examples include Argentina, Paraguay, Peru, and Ecuador. The impact on access, especially for the poor, has been tactfully ignored. Because most Latin American court systems could substantially improve the efficiency of their operations before beginning to have an impact on the other variables, it has not been difficult to date to avoid the trade-offs. 61. To date, most economic analysis directed at the judiciary has a macro focus and shows little concern for or knowledge of its internal workings. Although it has served to justify the programs’ existence, it is of little or no help in designing them and, in fact, is often used to support the more-is-better argument.

330 Linn Hammergren 62. For a discussion of the poor quality of empirical research attempted by legal scholars, see Epstein and King (2001). As they conclude, “readers learn considerably less accurate information about the empirical world than the studies’ stridently stated, but overly confident, conclusions suggest” (1). 63. One positive sign is a greater insistence on collecting and analyzing judicial statistics as a means of understanding what is really happening in the courts and testing such traditional explanations as overwhelming caseloads and inadequate numbers of judges to handle them. Work done by European scholars on their own systems has been especially influential as both a methodological guide and a basis of comparison (see Pastor Prieto 1993). 64. USAID, the donor that has enjoyed (or suffered) the most external evaluations cannot be said to have incorporated many of them in its subsequent planning. One important exception to the general rule was the World Bank’s response to a Lawyers Committee (1996) report on a project in Venezuela. As described above, the report led to a substantial redesign of the project. A 2000 report by the committee assessing a project in Peru was published after the project had been canceled. 65. This is the law school of the Universidad de los Andes in Bogotá. 66. The source will remain anonymous. The quotation is real, and it is hardly the only example. I remember one USAID official telling me that although it would be nice to test the hypothesis in question, we didn’t have the time and so we should just act on it.

References Alvarez, José E. 1992. Promoting the “rule of law” in Latin America: Problems and prospects. George Washington Journal of International Law and Economics 25, no. 2: 281–331. Biebesheimer, Christina. 2001. Justice reform in Latin America and the Caribbean: The IDB perspective. In Rule of law in Latin America: The international promotion of judicial reform (99 –141), edited by Pilar Domingo and Rachel Sieder. London: Institute of Latin American Studies, University of London. Blair, Harry, and Gary Hansen. 1994. Weighing in on the scales of justice. Washington, D.C.: USAID/CDIE. Brandt, Hans-Jurgen. 1990. En nombre de la Paz comunal: Un análisis de la justicia de paz en el Perú. Lima: Friedrich Naumann Foundation. Brody, Reed. 1999. International aspects of current efforts at judicial reform: Undermining justice in Haiti. In The (un)rule of law and the underprivileged in Latin America (227–42), edited by Juan E. Méndez, Guillermo O’Donnell, and Paulo Sérgio Pinheiro. South Bend, Ind.: Notre Dame University Press. Burki, Shahid Javed, and Guillermo E. Perry. 1998. Beyond the Washington consensus: Institutions matter. Washington, D.C.: World Bank Latin American and Caribbean Studies. Buscaglia, Edgardo, and Maria Dakolias. 1996. Judicial reform in Latin American courts: The experience in Argentina and Ecuador. World Bank Technical Papers, no. 350. Washington, D.C.

International Assistance to Latin American Justice Programs 331 Buscaglia, Edgardo, Maria Dakolias, and William Ratliff. 1995. Judicial reform in Latin America: A framework for national development. Hoover Institution Essays in Public Policy. Stanford, Calif.: Stanford University. Monograph. Carothers, Thomas. 1998. The rule of law revival. Foreign Affairs 77 (March/April): 95 –106. Castelar Pinheiro, Armando, coord. 1998. The economic costs of judicial inefficiency in Brazil: Final report. Federal University of Rio de Janeiro. On file with the author. Duplicated. Checchi and Company Consulting. 1991. Final implementation unit report: Improved administration of justice project. USAID/Guatemala and the Judicial Branch of Guatemala, September. Draft report on file with the author. Chemonics. 1996. Proyecto de reformas judiciales: Informe del diagnóstico institucional y su entorno. Unpublished assessment prepared under the World Bank judicial reform project in Bolivia. On file with the author. Colombia Comisión de Racionalización del Gasto y de las Finanzas Públicas. 1996. El sistema judicial y el gasto público. Santafé de Bogotá. Correa Sutil, Jorge. 1999. Judicial reform in Latin America: Good news for the underprivileged? In The (un)rule of law and the underprivileged in Latin America (255 – 77), edited by Juan E. Méndez, Guillermo O’Donnell, and Paulo Sérgio Pinheiro. South Bend, Ind.: Notre Dame University Press. Correa Sutil, Jorge, Carlos Peña G(onzález), and Juan Enrique Vargas. 1999. Poder Judicial y Mercado: Quién debe pagar por la Justicia? Draft paper, Centro de Investigación, Facultad de Derecho, Universidad Diego Portales, Santiago, Chile. On file with the author. Costa Rica Supreme Court, Escuela Judicial. n.d. La escuela judicial de futuro. San Jose, Costa Rica. On file with the author. Crohn, Madeleine, and William E. Davis, eds. 1996. Lessons learned. Proceedings of the Second Judicial Roundtable, May 19 –22. Williamsburg, Va.: National Center for State Courts, USAID, and IDB. Dakolias, Maria. 1995. A strategy for judicial reform: The experience in Latin America. Virginia Journal of International Law 36, no. 1: 167–231. Development Associates. 1996. Final report: Panama Administration of Justice Project. Unpublished report for USAID/Panama. On file with the author. Domingo, Pilar. 1997. Judicial independence: The politics of Supreme Court judges in Mexico. Paper presented at the meetings of the Latin American Studies Association, April 17–19, in Guadalajara, Mexico, April 17-19. Domingo, Pilar, and Rachel Sieder, eds. 2001. Rule of law in Latin America: The international promotion of judicial reform. London: Institute of Latin American Studies, University of London. Epstein, Leo, and Gary King. 2001. The rules of inference. University of Chicago Law Review 30, no. 1: 1–92. Espinosa, Aldo. 1997. Diseño de un proyecto piloto para la modernización judicial en Santo Domingo. Preliminary study for USAID/Santo Domingo prepared by the National Center for State Courts. On file with the author. Finkel, Jodi. 1997. The politics of Mexico’s 1994 judicial reform. Paper presented at

332 Linn Hammergren the meetings of the Latin American Studies Association, April 17–19, Guadalajara, Mexico. Fundación de Investigaciones Económicas Latinoamericanas (FIEL). 1996. La reforma del poder judicial en la Argentina. Buenos Aires. Gardner, James. 1980. Legal imperialism: American lawyers and foreign aid in Latin America. Madison: University of Wisconsin. Gawande, Atul. 2000. Under suspicion. New Yorker, January 8, 50 –53. Gómez Albarello, Juan Gabriel. 1996. Justicia y democracia en Colombia: En entredicho? Análisis Político 28: 42 – 64. González Oropeza, Manuel. 1996. The administration of justice and the rule of law in Mexico. In Rebuilding the state: Mexico after Salinas (59 –78), edited by Monica Serrano and Victor Bulmer-Thomas. London: Institute of Latin American Studies, University of London. Gregorio, Carlos G. 1995. Investigación sobre demora en el proceso judicial. Buenos Aires: CEJURA. Guatemala Supreme Court. 1994. Seminario selección de los jueces, carrera e independencia judicial. Guatemala City. Haeussler, Maria Josefina. 1993. Experiencias comparadas de formación judicial. Santiago, Chile: Corporación de Promoción Universitaria. Hammergren, Linn. 1998a. Code reform and law revision. Washington, D.C.: USAID/ G/DG. ———. 1998b. Institutional strengthening. Washington, D.C.: USAID/G/DG. ———. 1998c. Judicial training and judicial reform. Washington, D.C.: USAID/ G/DG. ———. 1998d. Political will, constituency building, and public support in justice reform. Washington, D.C.: USAID/G/DG. ———. 1998e. The politics of justice and justice reform in Latin America. San Francisco: Westview. ———. 2002. Do judicial councils further judicial reform? Lessons from Latin America. Washington, D.C.: Carnegie Endowment for International Peace. Hendrix, Steven E. 2002. Guatemala. In Legal systems of the world, vol. 2 (613 –23), edited by Herbert M. Kritzer. Santa Barbara, Calif.: ABC–CLIO. ILANUD (United Nations Latin American Institute for Crime Prevention and Treatment of the Delinquent). 1991. Necesidades de capacitación de los jueces penales en Ecuador. San Jose, Costa Rica. Inter-American Development Bank (IDB). 1993. Justicia y desarrollo e América y el Caribe. Washington, D.C. Lawyers Committee for Human Rights. 2000. Building on quicksand: The collapse of the World Bank’s judicial reform project in Peru. New York. ———. 2002. Justice constrained: The Myrna Mack murder trial. Executive summary. Available at www.lchr.org/defenders/hrd_guatemala/hrd_mack/justice_ constrained.pdf. Lawyers Committee for Human Rights and the Venezuelan Program for Human Rights Education and Action. 1996. Halfway to reform: The World Bank and the Venezuelan justice system. New York. Leeth, Jon, and Ana María Linares, Zenía de Moscote, and Robert Murphy. 1997.

International Assistance to Latin American Justice Programs 333 Improved Administration of Justice Project evaluation. Unpublished report for USAID/Panama. On file with the author. Llobet Rodríguez, Javier. 1993. La reforma procesal penal. San Jose, Costa Rica: Corte Suprema de Justicia, Escuela Judicial. Lynch, Horacio. 2000. El impacto de la justicia sobre la economía Argentina. Paper presented at the Jornadas Sobre Reforma Judicial y Crecimiento Económico, Fundación ICO, October 18 –20, in Madrid. Maier, Julio, Luis Torello, Raul Tavolari, William Davis, Cristián Riego, Alberto Binder, and Olman Arguedas. 1993. Reformas procesales en América Latina. Santiago, Chile: Corporación de Promoción Universitaria. Méndez, Juan E., Guillermo O’Donnell, and Paulo Sérgio Pinheiro, eds. 1999. The (un)rule of law and the underprivileged in Latin America. South Bend, Ind.: Notre Dame University Press. Messick, Richard. 1999. Judicial reform and economic development: A survey of the issues. World Bank Research Observer 14, no. 1: 117–36. Montes, Ana. 1996. Diagnóstico sobre el sector justicia en Guatemala. Unpublished report prepared for the IDB. On file with the author. Mudge, Arthur. 1997. Justice Sector Reform Support Project midterm evaluation. Draft report prepared for USAID/Guatemala. On file with the author. Mudge, Arthur, Steve Flanders, Miguel Sanchez, Adolfo Suarez, and Gilberto Trujillo. 1988. Evaluation of the Judicial Reform Project No. 519-0296. Unpublished study for USAID/El Salvador. On file with the author. Mudge, Arthur, Ricardo Córdoba, Luis Alonso Reyes, Tirsa Rivera, and Mary Said. 1996. Judicial reform II evaluation. Final draft of a study prepared for USAID/El Salvador, Management Sciences International. On file with the author. Pásara, Luis. 2000a. Justicia y ciudadanía realmente existentes. Unpublished draft, Kellogg Institute for International Studies, University of Notre Dame, South Bend, Ind. On file with the author. ———. 2000b. Reforma procesal y reforma judicial. Paper presented at the Jornadas Sobre Reforma Judicial y Crecimiento Económico, Fundación ICO, October 18 –20, in Madrid. Pastor Prieto, Santos. 1993. Ah de la justicia! Política judicial y economía. Madrid: Editorial Cívitas. Popkin, Margaret. 2000. Peace without justice: Obstacles to building the rule of law in El Salvador. University Park: Pennsylvania State University Press. Prillaman, William C. 2000. The judiciary and democratic decay in Latin America. Westport, Conn.: Praeger. Rico, José María. 1993. Los consejos de la magistratura: Análisis crítico y perspectivas para América Latina. Miami: Center for Administration of Justice, Florida International University. Rico, José María, Luis Salas, Enrique Gutiérrez, and Carlos Cruz. 1993. La justicia penal en Costa Rica. San Jose, Costa Rica: EDUCA. Rowat, Malcolm, Waleed H. Malik, and Maria Dakolias. 1995. Judicial reform in Latin America and the Caribbean: Proceedings of a World Bank conference. World Bank Technical Paper no. 280. Washington, D.C.

334 Linn Hammergren Sáez García, Felipe. 1998. The nature of judicial reform in Latin America and some strategic considerations. American University International Law Review 13, no. 5: 1267–1325. Salas, Luis, and José María Rico. 1989a. La justicia penal en Guatemala. San Jose, Costa Rica: EDUCA. ———. 1989b. La justicia penal en Honduras. San Jose, Costa Rica: EDUCA. Shavell, Steven. 1997. The fundamental divergence between the private and the social motive to use the legal system. Journal of Legal Studies 26, no. 2: 575 – 61. Sherwood, Robert M., Geoffrey Shepherd, and Celso Marcos de Souza. 1994. Judicial systems and economic performance. Quarterly Review of Economics and Finance 34 (summer): 101–116. Special issue. Shihata, Ibrahim F. I. 1997. Complementary reform: Essays on legal, judicial, and other institutional reforms supported by the World Bank. Washington D.C: World Bank. Solís, Luis G., and Richard Wilson. 1991. Political transition and the administration of justice in Nicaragua. Miami: Center for the Administration of Justice, Florida International University. Spence, Jack, and George Vickers. 1994. A negotiated revolution? A two-year progress report on the Salvadoran peace accords. Cambridge, Mass.: Hemispheric Initiatives. Spence, Jack, George Vickers, and David Dye. 1995. The Salvadoran peace accords and democratization: A three-year progress report and recommendations. Cambridge, Mass: Hemispheric Initiatives. Thome, Joseph. 1992. Administration of justice in Latin America: A survey of AID-funded programs in Argentina and Uruguay. Arlington, Va.: Development Associates. ———. 2000. Heading south but looking north: Globalization and law reform in Latin America. In Governance, development, and globalization (49 – 68), edited by Julio Faúndez, Mary E. Footer, and Joseph J. Norton. London: Blackstone Press. Tshuma, Lawrence. 2000. The political economy of the World Bank’s legal framework. In Governance, development, and globalization (7–27), edited by Julio Faúndez, Mary E. Footer, and Joseph J. Norton. London: Blackstone Press. United Nations, 1999. Ninth report on human rights of the United Nations Verification Mission in Guatemala (MINUGUA). Available at www.worldpolicy.org/ globalrights/guatemala/report9.html. U.S. Agency for International Development (USAID). 2001. Case tracking and management guide. Technical Publication Series. Washington, D.C.: USAID, Center for Democracy and Governance. U.S. General Accounting Office (GAO). 1992. Foreign assistance: Police training and assistance. GAO/NSIAD-92-118. Washington, D.C. ———. 1993. Foreign assistance: Promoting judicial reform to strengthen democracies. GAO/NSAID-93-194. Washington, D.C. ———. 2000. Foreign assistance: Any further aid to Haitian justice system should be linked to performance-related conditions. GA0-01-24. Washington, D.C. Vargas, Juan Enrique. 1996. Oral process. In Lessons learned (55 –72), edited by Madeleine Crohn and William E. Davis. Proceedings of the Second Judicial Roundtable, May 19 –22. Williamsburg, Va.: National Center for State Courts, USAID, and IDB.

International Assistance to Latin American Justice Programs 335 Verbitsky, Horacio. 1993. Hacer la corte: La construcción de un poder absoluto sin justicia ni control. Buenos Aires: Planeta. Washington Office on Latin America (WOLA). 1990. The administration of justice program in Latin America. Washington, D.C. Webb, Douglas. 1996. Legal system reform and private sector development in developing countries. In Economic development, foreign investment, and the law (45 – 65), edited by Robert Pritchard Boston: Kluwer Law International. Zuckerman, Adrian, ed. 1999. Civil justice in crisis: Comparative perspectives of civil procedure. Oxford: Oxford University Press.

ch apter

10

The Rule of Law and Judicial Reform: The Political Economy of Diverse Institutional Patterns and Reformers’ Responses

erik g. jensen

an intensive search is on for the rule of law, the holy grail of good gov-

ernance and sustainable development around the world. Centripetal forces pull that search, and the vast majority of resources in rule-of-law programs, to the courts, expecting them to strengthen their operations and, presumably, the rule of law itself. Is it wrong to privilege the courts? Not necessarily. It depends on our expectations. Challenges of court-centric strategies to strengthen the rule of law in country after country begin with a basket of constraints familiar to scholars of comparative law—namely, that judiciaries are the product of localized evolution and persistent differentiation, notwithstanding globalizing forces for convergence (see, for example, Merryman 2000b). A special focus on the courts may be suitable in some places, but we should not assume that it is suitable in every place. Moreover, efforts to propagate the rule of law through court-centric programs founder for several reasons: • Judicial leadership, if it exists at all, often transfers to other posts, retires, or is voted out of office. • Implementation capacities, especially among subordinate court staff, are extremely limited. • Broader political and economic goals—for example, judicial independence and macroeconomic growth—remain largely out of reach of a court-centered approach. • Reform strategies are developed with minimal if any empirical research. • And above all, donors face incentives to spend money with insufficient regard for the economic and political changes that spending may engender.

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Keeping these constraints in mind, two related arguments are central to this chapter. One is that even if the rule of law is an important goal, how the rule of law is conceived—with particular attention to the institutional configurations that further this goal—may differ considerably across countries. Accordingly, this chapter urges reformers to begin with a detailed empirical approach, paying special attention to restrictive as well as expansive definitions of the rule of law. They should focus in particular on what courts actually do, noting that in many cases noncourt institutions perform specific functions as well as or better than the courts themselves. The second argument flows from the first: efforts to promote the rule of law on the part of international agencies tend to be impeded by a rigid conceptualization of the relevant policymaking domain and, ultimately, by the highly formalized incentive structures of the international development agencies themselves. Like all of the papers in this volume, this chapter tells a story about the evolution of legal and judicial reform both in theory and in practice.1 Ultimately, the hope is that a more nuanced understanding of international donor assistance will contribute to an understanding of why, when, where, and how reform interventions can make a difference. The first section examines the recent history of legal and judicial reform, and poses the following questions: What is the rule of law? Why has momentum for rule-of-law programs gathered such strength in recent years? What are the challenges we face when it comes to strengthening reform programs? How does the rapid growth of the rule-of-law sector translate into increased demands on the courts? The second section describes the standard package, the components that generally go into legal and judicial reform programs. The section begins with a history of the rule-of-law movement, which puts the standard package in context. Then it examines different levels of intervention. Finally, it takes a disheartening look at the impact of loan structures on the assistance process. The standard package is the product of a consensus. The third section looks at the constituencies that are a part of that consensus and those that are not. And it asks why broader, well-organized, dissenting constituencies are absent. This section begins to address the underlying political economy of institutional reform, focusing on the problems associated with reform constituencies and the perverse incentives they face. The next section examines the record of successes and failures in legal and judicial reform as a whole, paying special attention to resource-intensive investments like courthouses, computer systems, court management, and training. Finally, the last section suggests an agenda for improving judicial reform that relies on empirical analysis. After setting out the case for such analysis,

338 Erik G. Jensen it focuses on the critical components of the empirical-research agenda— of dispute resolution forums, and monitoring and evaluation that could positively influence the evolution of the standard package in the future. The research suggested will help set baselines, target incentives and interventions for measuring progress and success against baselines, and reduce the risk of allegations of lack of due diligence.

Defining the Rule of Law Every donor organization has an internal structure by which it sorts and classifies its development assistance programs. The assignment of judicial reform within that structure can vary. Some donors link judicial reform to the promotion of democracy and human rights. Others place it within governance or public-sector management programs. Many situate it within economic reform programs and, increasingly, attempt to link it to larger poverty-reduction programs as well. In every case, however, assistance for judicial reform remains the chief operating vehicle for strengthening the rule of law around the world. If we want to understand the gathering momentum in this “sector,” especially among prominent donor agencies, we must begin with an effort to define rule of law and legal system. What are the specific challenges associated with this objective? How does increased demand for the rule of law translate into increased demands on the courts? what is the rule of law? definitions thick and thin While legal and judicial reform efforts proliferate, important questions remain concerning the definition of rule of law, the nature of judicial independence, and the boundary between the judiciary and the bureaucracy in the local context. The definition debate is heated (see Radin 1989). Some define rule of law as a stage at which laws have become widely known and understood,2 and where they are applied equally to everyone (Carothers 1998). In practice, it is hard to imagine even a single jurisdiction where this standard actually is met. Others attach special importance to constitutional limitations on the scope of legitimate state action, or on a clear demarcation of powers between central and peripheral governments. In Western liberal democratic discourse, rule of law connotes a commitment to democracy, an emphasis on law and order, limitations on the power of state actors (particularly police and prosecutors), respect for legal authority, individual rights, and an effort to hold state actors up to the same rules and standards as everyone else.3 Casper (2002) observed that “calls for the rule of law . . . are quite undifferentiated and rarely specify what conditions have to be met in order to justify the conclusion that, in a given context, the rule of law is actually being

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furthered.” Indeed, the goals and expectations articulated in rule-of-law projects often diverge dramatically from their activities and accomplishments. Expectations tend to be bloated. One of the most important reasons for this disjunction between goals and accomplishments is that project designs embrace “thick,” expansive definitions of rule of law. In other words, they aim at broad substantive goals like strengthening individual rights and political institutions, and stabilizing the economy. To the extent that these reform programs succeed, however, that success is often at the “thin” level of the rule of law: improvements in the procedures and the efficiency of legal processes.4 In his very useful effort to organize the debate about competing definitions of rule of law, Peerenboom (2002) suggests that there is significant agreement on the essential elements of a thin (procedural) definition but no agreement at all when it comes to a thick (substantive) definition. This is particularly true when we begin to ask about the extent to which our definition should incorporate particular notions of morality related to economic governance (market economies versus command economies), regime type (democratic regimes versus single-party socialist regimes versus neoauthoritarian regimes), and human rights (individual rights versus communitarian rights versus collectivist rights).5 In economic relations, thick descriptions tend to emphasize the importance of law (versus the trust developed through repeat transactions) to the relationship between individuals and businesses. Many want the playing field leveled through competitive market structures (competition law) and appropriate incentives for private actors (free-trade regimes). Others point to the need for intervention in macroeconomic policy to ensure monetary stability. A few even go so far as to stress the need for internalizing social costs and benefits not reflected in market prices and, ultimately, for redistributing wealth. Those who argue for a thick, substantive definition of the rule of law in economic governance further argue that the application of a purely procedural approach leads to perverse results. For instance, a country might adopt a rule that every decision corporate managers make can be challenged by shareholders in court and that judges are empowered to make de novo decisions about the wisdom of each corporate judgment (this is the opposite of the business judgment rule). Procedurally, this rule may be flawless—after all, judges are being petitioned to review business decisions, and they are reviewing them honestly. But as the critics of a purely procedural approach are quick to point out, the law itself may weaken certain goals pertaining to the rule of law, especially if economic growth and development are frustrated by the substantive terms of the law itself.6 Actual reform experience demonstrates the urgent need to strike a more

340 Erik G. Jensen effective balance between universal ideas about the rule of law in a purely procedural sense and exceptional ideas about specific substantive concerns embedded in local contexts. In striking this balance, however, the most urgent need is for more thick descriptions of local context regarding the role, functions, and substance of formal and informal legal institutions.7 Within the formal legal system, for example, differentiated analyses are needed to parse out prescriptions for high courts and low courts. At the same time, we need a differentiated approach to the bureaucracy and the judiciary, the urban judiciary and the rural judiciary, and the judiciary and various local tribunals, one that allows us to determine which forum is the most appropriate for which judicial functions. Defining the Legal System. Defining the scope and boundaries of the legal system is an equal challenge. Local preferences and competing notions of success in the realm of dispute resolution are exceedingly difficult to define and measure. In the early 1970s, Stanford University initiated an ambitious empirical project known as Studies in Law and Development (SLADE) to investigate and compare the performance of legal institutions in a wide range of countries. Notwithstanding a staff of first-rate scholars, the exercise proved very difficult. Among other things, the researchers encountered a host of comparability problems when it came to classifying disputes and dispute resolution processes across different countries.8 The difficulties encountered by SLADE are instructive. After all, defining the domain and functions of legal actors and institutions is central to any empirical analysis of legal systems. Over three decades ago, Lawrence Friedman (1969) attempted to resolve this conundrum by applying a functional approach to the analysis of legal systems. In particular, he argued that legal-systems research should identify legal functions whatever their formal classification (“legal” or “nonlegal”). “What is the legal system? What are its boundaries? Where does it begin and where does it end?” Friedman asked. Most of the definitions come from the lawyers themselves; but these may be deceptive. The lawyer’s definitions are bounded by his own experience. . . . Logically, however, the phrase “legal system” could just as well apply to all of government, to all of social control, to every institution that makes rules or applies them, to any way in which private persons address themselves to higher authority, to every official response to private behavior, and to all actions of persons and groups that consciously relate to the law, including deviation or evasion. (56 –57)

As Friedman points out, the boundaries of the legal system often are unclear.9 Donor-supported rule-of-law projects tend to be quite strong when it comes to defining the boundaries of the judiciary, for example— especially when it comes to drawing a sharp distinction between the judiciary

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and the bureaucracy—but they are extremely weak when it comes to determining the functions that are best allocated to each institution. In many cases, the bureaucracy appears to be an attractive substitute for the judiciary. Yet often law projects simply assume the virtue of the largescale migration of power from the bureaucracy to the judiciary, never pausing to consider that certain functions are carried out comparatively well by the bureaucracy itself. The civil courts in China, for example, function like bureaucratic institutions, and they handle family disputes quite well: Key to understanding Chinese courts . . . is understanding that they are essentially a bureaucracy, like other bureaucracies in the Chinese government. . . . They do not occupy (except formally) a position apart from and superior to the rest of the government. Consequently, we should attempt to measure their performance using the measures we would apply to other Chinese government bureaucracies; attempts to apply measures we would apply to courts in the United States are likely to fail. (Clarke, Chapter 5)

Legal and judicial reform projects cannot succeed without a stronger understanding of the actual function and scope of the legal system, and related institutions, in a particular local context. Judicial Independence. Woven through this chapter are references to judicial independence. Like the meaning of rule of law or legal system, the definition of judicial independence is contested; its evolution is contingent on the interaction of a complex set of variables and institutional patterns; its measurement is challenging; and its manifestations, we think, are not always clear. The case-specific approach to judicial independence that Hualing Fu develops and applies in Chapter 6 is compatible with the stratification of the rule of law—thick (substantive) and thin (procedural) definitions. Fu argues that the independence, fairness, and competence of the courts in China vary by type of case. Judicial independence is severely constrained in criminal cases with serious political overtones and, to some extent, in economic cases that affect powerful local enterprises and administrative cases in which a strong government department is the defendant. Yet, he argues that in a large number of ordinary cases—family cases, most small debt and property cases, and disputes between private companies—judicial independence is not impeded. In the vast majority of cases before the civil courts, then, a thin rule of law works. In a superb paper, Matt Stephenson (2003) models judicial independence and finds that even in stable political systems, independence is highly contingent on the complex convergence of three variables: (1) a political system that is sufficiently competitive, (2) judicial doctrine that is sufficiently moderate, and (3) political competitors who are sufficiently risk-averse and concerned about future payoffs.

342 Erik G. Jensen Finally, it can be difficult at times to know whether a court is acting independently or not. Every ruling against the government is not necessarily a sign of judicial independence. For example, in August 2002, the Venezuela Supreme Court, invoking a technicality, refused to hear the attorney general’s petition to bring a case against military officers involved in an attempted coup some months before. On the surface this looked like—and many have heralded it as—a triumph of judicial independence: the judiciary standing up to the executive. But on closer analysis, it probably was something very different. For instance, the justices may have been weighing (and been influenced by) the likelihood of regime change. The Court has an interest in being on the right side of history, and in disassociating itself from an autocratic leader, especially one on the way out. Second, the Court may be independent of the executive and the legislature but not of the military. Each side of this dispute was a powerful force. Third, the Court may have been insecure about its own institutional integrity and survival in a transition period. This would fit a pattern found in Argentina, where their lack of judicial independence has motivated judges to “strategically defect” from a government once it begins to lose power (Helmke 2002). In other words, what appears at first as an act of judicial independence actually may be a pragmatic decision in light of local power realities. why is momentum for the rule of law growing? goals and challenges Efforts to strengthen the rule of law are rooted largely in efforts to institutionalize values.10 This pressure may grow out of genuine humanitarian concerns—to alleviate poverty or protect human rights, for example. But it also may grow out of more-expansive notions of national self-interest—that peace prevails in democracies or that respect for contractual rights prevails in countries with strong rule-of-law regimes. Of course it may grow out of a combination of both.11 At least among those who choose to promote the rule of law, however, the challenge seems to lie in institutionalizing an abiding respect for human rights, economic growth, and democracy amid the world’s shifting political, organizational, and technological forces. Human Rights. The human rights agenda after World War II was focused on the prevention of torture and genocide. By the 1970s, that agenda had grown to include the protection of civil and political rights, and there was vigorous debate about adding to those rights the right to development itself. Today the human rights agenda has been expanded still more, to include an explicit focus on economic and social rights, such as the right to work, the right to education, and the right to social security.

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Economic Growth. The value of economic opportunity and growth is reflected in an appreciation for predictability in planning and efforts to prevent grants of monopoly privilege and arbitrary exactions. Max Weber and Douglass North provided broad theoretical support for this thinking, and recent hypotheses on the value of secure property rights in corporate governance and intellectual property supplement this view. But the empirical evidence is inconclusive on the importance of the formal legal system in the economic-growth agenda. Many countries with an extremely thin rule-of-law regime question the importance of the formal judiciary when it comes to foreign investment, economic growth, and development. China, for example, has enjoyed high levels of foreign direct investment (FDI) and growth; and Brazil has a growing credit market based on the dense information available through new technologies and databases, both of which tend to substitute for strong legal institutions. At the same time, actors in India are pursuing international capitalization by adhering to more-rigorous international standards of corporate governance— even more rigorous than their domestic laws would require.12 Democracy. The value of democracy underlies demands for legitimate authority and accessible due process. These demands, in turn, oppose noncompetitive concentrations of political and economic power. Calls for transparency, accountability, and participation have grown in recent years, and, for the most part, they appear to be genuine. Slowly but surely then, we are seeing the growth of civil society organizations and independent regulatory bodies despite the fact that important questions remain about the extent to which formal legal institutions can address the frustration of a series of repeat elections that do not improve well-being (the democratic-fatigue dilemma). how do recent demands for the rule of law translate into increased demands on the courts? Typically, demands for “more and better” rule of law imply increased demands on the courts in all three domains: human rights, economic growth, and democracy. In fact, some human rights advocates have even begun to press the courts for judgments regarding social justice (Politics of human rights 2001, 9). The courts, they argue, are in a unique position to push public policy in the right direction, noting that social and economic rights should be justiciable, notwithstanding the risk of a hostile government backlash and the inability of the courts to enforce judgments even in much less complex cases.13 In a related trend, constitutions and constitutional courts have prolifer-

344 Erik G. Jensen ated in recent years, especially in developing countries. The extent to which the rights enshrined in these constitutions are more likely to be recognized once they are written down, however, remains unclear.14 Those with an interest in constraining the state have supported this new wave of constitutionalism, but the general impact of their efforts is also unclear.15 Economic growth and democratic participation produce pressure both to deconcentrate domestic power and to reregulate it at an international level. Deconcentration places more and different demands on the legal system by increasing the likelihood of mobility between jurisdictions and by imposing constraints on various administrative monopolies. Generally we assume that demands on the courts will grow as the powers of a unitary government are redistributed to lawmakers, the courts, and other institutions. Judicial review is one example of a power that creates work for the courts. But whether external controls on administrative processes—for example, in the form of domestic and international oversight agencies—will translate into greater pressure on the courts or lead to alternative forms of dispute resolution is unclear.16 Perhaps the greatest challenge to the rule of law in developing countries lies in managing the gap between the expectations that drive rule-of-law programs and the reality of what these programs can deliver. Rule-of-law programs in developing countries are burdened with expectations that far exceed those placed on development programs in richer nations in a previous era. Indeed, courts and lawyers in developing countries increasingly are expected to play a central role, not only in resolving common disputes, but also in coordinating markets, managing decentralized bureaucracies, leading social and cultural reform, and monitoring the behavior of local politicians.17 This burden may simply be too much. In his classic book, The Hollow Hope: Can Courts Bring About Social Change? (1991), Gerry Rosenberg uses rigorous empirical analysis to challenge the myth of court-led social reform in the United States. He suggests that contrary to conventional wisdom, the U.S. Supreme Court generally lags behind broader social movements. Indeed, Rosenberg’s extensive empirical study shows just how far off those who point to an activist Court may be from the reality of American history.18 Yet the image of an activist Court endures. And in many developing countries, a belief in the transformative capacity of litigation has grown palpably. If the U.S. experience is any guide, legal reform–based efforts to fight poverty, for example, are likely to fail.19 Indeed, Rosenberg concludes that courts do not lead social reform and that they cannot transcend the political conflicts in which social problems are so deeply embedded. He writes: “Problems that are unsolvable in the political context can rarely be solved by the courts. . . . Turning to courts to produce significant social reform sub-

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stitutes the myth of America for its reality. It credits courts and judicial decisions with a power that they do not have” (338).20

The Standard Package of Judicial Reforms Increasingly, demands for rule-of-law reforms have been marked by a strong preference for judicial centrality. Indeed, within international development circles, the rule of law has become virtually synonymous with the reform of judicial structures—notwithstanding the lack of empirical research to support that thinking. This uncritical gravitation toward judicial centrality has produced an unmistakable tendency to treat the courts as a black box, an entity set apart from any larger institutional context.21 In fact, there has been little if any attention paid to the larger ecology of legal institutions. This has left the standard package of judicial reforms cut off from its institutional context and ill equipped to consider alternative dispute resolution (ADR) and risk management, even when those options may be more effective than the courts themselves. how the standard package was derived: five waves in the law and development movement Recent efforts on the part of international donors to strengthen formal legal institutions reflect several factors. Chief among them is the assumption that a close connection exists between the effectiveness of the formal legal system and economic development. In particular, the multilateral development banks (MDBs) emphasize the importance of international investment and competitiveness in generating sustainable growth, insisting that domestic legal systems must be brought into conformity with international standards to raise investor confidence. The ideal scenario: a formal legal system is one in which contractual obligations between strangers are honored, property rights are secure and transferable, resources are allocated fairly, and public decision-making authority is exercised transparently and predictably, thereby inspiring citizen and investor confidence. Although USAID describes its judicial reforms in terms of protecting democracy and human rights, it also subscribes to the banks’ economic justification for those reforms.22 Rule-of-Law Reform: The First Wave. The past fifty years have seen at least four waves of judicial reform, with a fifth wave growing from a ripple into at least a rhetorical splash during the last several years. The first wave began immediately after World War II and lasted until the middle of the 1960s. During this phase, foreign aid was expected to make public institutions work more effectively. This wave was motivated by modernization

346 Erik G. Jensen theory: development is inevitable; and the evolutionary process of increasing societal differentiation results in economic, political, and social institutions akin to those in the West—namely free markets, liberal political institutions, and the rule of law (see Tamanaha 1995). Programmatically, the central focus of reform programs was building the capacity of centralized bureaucracies.23 Very little support was given to judiciaries; but to the extent it was, the judiciary was viewed as just another public institution in need of technocratic enhancement, with rudimentary institutional reform and a bit of substantive legal reform and constitutional drafting thrown in for good measure (see Klug 2000).24 In its effect, the first wave reflected many elements of legal transplants of earlier periods, for example, when the study of Roman law was revived in European universities, or when common law was introduced in colonial jurisdictions. Rule-of-Law Reform: The Second Wave. The convulsive second wave lasted from the middle of the 1960s through the 1970s. The much-maligned law and development movement reached its peak in the late 1960s, when Latin American legal academics and lawyers were sent to American law schools, and American lawyers were sent to develop legal education curriculums in Latin America.25 Two doctrinal forces were at work during this period: one grounded in prevailing ideas about economic development; the other, in prevailing ideas about democratic development. Although the programs from this period have been criticized for exporting American legal institutions, many of the lawyers and academics who participated in the exchange in fact were charged with supporting a much larger economic development paradigm. So many were placed in ministries of finance, commerce, and planning. Their brief was to make public institutions work for economic development. Participants in the democratic side of this movement were motivated by the civil rights movement in the United States. They believed that lawyers could, and should, be activist agents of change. Even as the law and development movement set out to encourage broader social change, however, modernization theorists were becoming increasingly pessimistic. Throughout the 1960s and 1970s, countries failed to progress economically, political institutions deteriorated, and authoritarian regimes proliferated. Before long, modernization theory was cast aside—at least by some influential theorists—and dependency theory rushed in to fill the theoretical void. Increasingly, blame for the failure of development efforts shifted from endogenous factors, factors within each country, to exogenous factors like the structure of global capitalism and postcolonial exploitation as a whole. Rule-of-Law Reform: The Third Wave. During the 1980s, a third wave emerged. The programs in this period—like USAID’s Administration of

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Justice programs—were funded by U.S. agencies and foundations to promote democracy through legal development. The programs started in Latin America; but by the end of the decade they had reached Asia as well. As the decade closed and the cold war ended, more attention was paid to the questions of judicial independence, constitutionalism, respect for civil and political liberties, and criminal law. Thus began a limited systemic approach to the development of legal systems. The approach was limited in the sense that formal legal systems shaped the boundaries of its focus. Rule-of-Law Reform: The Fourth Wave. The fourth wave began with the post– cold war rule-of-law renaissance in the early 1990s. The rule of law became the big tent for social, economic, and political change generally— the perceived answer to competing pressures for democratization, globalization, privatization, urbanization, and decentralization. Rule of law also became the big tent for donor activity to “rebalance the state.” During this period, those who provided support during the earlier waves suddenly were joined by a legion of bilateral, multilateral, and foundational actors. In particular, European influence emerged in the form of support for ombudsmen, judicial councils, and constitutional courts.26 United Nations agencies, especially the United Nations Development Program (UNDP), entered the fray as well. The most notable development, however, was the entrance of multilateral development banks (MDBs) and the remarkable infusion of capital they brought with them. Three MDBs stand out: the World Bank, the InterAmerican Development Bank (IDB), and the Asian Development Bank (ADB), though the ADB is a relative newcomer to this window of assistance. Constrained by their respective charters to avoid the political dimensions of development, they rationalized their entrance in terms of the need to strengthen legal institutions for foreign investment by enforcing contracts and property rights.27 More specifically, they insisted that a well-functioning judiciary is necessary for economic development. MDB involvement in rule-of-law programming was bolstered by the “Washington Consensus” and its push for private-sector development.28 Thus, MDB support emphasized company law, secured transactions, and bankruptcy law. USAID, on the other hand, interpreted its mandate more broadly. It focused on criminal justice and criminal procedure to address problems of lawlessness and human rights, especially in Latin America. The theoretical dimensions of this fourth period were enriched by advances in institutional economics and organizational theory, including game theory (see, for example, North 1990; and Powell and DiMaggio 1991), as well as advances in the literature of law and economics, and law and society.29

348 Erik G. Jensen Judicial Reform: The Fifth Wave. Under a purported comprehensive approach to legal and judicial reform, we now seem to be entering a fifth wave: Large donors have tended to move into comprehensive, integrated, or “holistic” programs, but this often means little more than the pursuit of multiple objectives by combining an equal or greater number of project components. The strategic linkages among goals, components, and activities remain weak. (Hammergren, Chapter 9)

This time, poverty reduction is the centerpiece (see, for example, ADB 1999; Narayan and Petesch 2002; and World Bank 2001b). Poverty-focused judicial reform programs have as a goal expansion of the human rights agenda to include social and economic rights—for example, poverty alleviation and health care. Some human rights advocates extend this agenda and use it as a basis for arguments about the redistribution of wealth. It is unclear how the MDBs will revise their standard package of investments to match the rhetoric, goals, and objectives of this fifth wave. For example, previously the World Bank might have launched a case management program to improve the climate for foreign investment and economic growth. Today, the Bank may embark on precisely the same program to reduce the number of cases so that impoverished litigants can gain greater access. the standard package: a closer look As noted at the start of this section, some donors promote human rights; others promote economic development or democracy. Yet despite these differences in the stated rationales for legal and judicial reform, the actual allocation of resources across projects differs very little. “Everyone funds training, trips, law drafting, short-term consultants, and conferences; those that can afford them provide long-term advisers, infrastructure, and equipment” (Hammergren, Chapter 9).30 This convergence in practice is explained at one level by a dominant interpretation of the theoretical literature. On a purely technical level, convergence results because “the [design] process draws heavily on conventional wisdom . . . about the nature of judicial problems and their solutions.” (Hammergren, Chapter 9). On another level, however, convergence is explained by the political economy behind the loans MDBs make and the grants bilateral donors make: foreign assistance is an instrument of public international diplomacy. Tom Carothers (1998) has delineated three levels of engagement in the standard donor template: • Type One Reform involves changing substantive laws: constitutional law, criminal law, commercial law, administrative law, and the like.31

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• Type Two Reform focuses on law-related institutions, making them more competent, efficient, and accountable. This level of engagement often moves beyond the judiciary to include the police, prosecutors, public defenders, prisons, law schools, ADR, and local government.32 • Type Three Reform focuses on the deeper goal of government compliance with the law, particularly in the area of judicial independence.33 Needless to say, this type of reform depends less on technical issues and more on enlightened leadership and pressure from above.34 Follow the Money. In the standard package, most donor resources are concentrated on Type Two Reform, making formal judicial institutions and related institutions more competent, efficient, and accountable (World Bank 2001a).35 Unfortunately, donors often find that the judiciary has very little absorptive capacity for massive infusions of capital.36 In light of this fact, it often is more important to follow the money as opposed to the rhetoric when it comes to an analysis of donor-funded rule-of-law programs. Where does the money actually go? What does it accomplish? 37 What is the relationship between investment strategies and the larger incentives for sustainable and effective reform? Resource-Intensive Interventions. By and large, capital-intensive reform targets in the judicial sector include salaries and benefits (plus nonsalary benefits, like cars), as well as courthouses, computers, and training. Higher salaries and increased budgets often are the stated goals of multilateral and bilateral assistance, but, as a matter of policy, donors rarely finance them. The primary rationale is that donor increments for salaries and budgets are not sustainable. Building courthouses, however, seems popular—some projects have the construction of a courthouse as their only objective—this despite the fact that long-term efforts to maintain courthouses have been conspicuous by their absence. The computerization of functions related to judicial administration, case management, and other services remains one of the most popular forms of capital-intensive intervention, but training in this area has fallen far behind. Similarly, substantial resources have been committed for the creation of specialized courts in commercial law, bankruptcy law, and corruption law, but their efforts have not been informed by empirical research, which has left these courts underused or inefficient, ineffective, and corrupted like their general court counterparts. Modest-Resource Interventions. Donors spend more-moderate amounts on projects that relate to the internal governance of the judiciary. One response to the manipulation of judges through promotion and remuneration, for example, has been the creation of independent judicial service commis-

350 Erik G. Jensen sions, or judicial councils. On the whole, these councils have had mixed success, depending on their composition and goals (see Hammergren 2002). Other moderate-resource interventions are delay reduction programs, the production of annual reports on judicial performance, the development of judicial performance standards, and the preparation and management of judicial budgets. Bar associations have received a moderate amount of funding as well. Lip-Service Interventions. Lip-service interventions always find their way into donor reports, but they receive very little if any MDB funding. Among these interventions are legal education and access-to-justice activities (for example, support for civil society organizations engaged in advocacy and public-interest law). Legal education has received a certain amount of support from bilaterals and foundations, but very little support from the MDBs. Civil society organizations have received funding from USAID, the Ford Foundation, and The Asia Foundation, but, again, very little from the MDBs (see, for example, McClymont and Golub 2000). Activities related to access to justice for disadvantaged sectors—women, the poor, lower castes —are always a part of the standard package, but, more often than not, the very last part.38 the political economy of donor assistance Unfortunately, the political economy of donor assistance poses serious impediments to effective assistance within the judicial sector and, indeed, within the governance sector as a whole. Many of the forces that limit the effectiveness of donor-assisted programs are well within the donors’ control, such as design practice and implementation structures. Others are beyond the control of any single donor, such as the politics of donor assistance. All can impede good development work. But the factor that impinges most on the effectiveness of programs is the loan structure itself. Experience suggests that the core incentive for MDB staffers lies in making big loans, even when those loans are going to incompetent or corrupt debtor countries whose priorities—financial liquidity over institutional reform—vary considerably from those of the project. Institutional incentives within MDBs encourage big loans without sufficient regard for the absorptive capacity of the recipient governments. That means the MDBs seek out investments that can absorb huge amounts of capital with modest, if any, concern for the extent to which those investments support the larger judicial reform effort. And that is why project activities usually include the construction of courthouses and the purchase and installation of computers. Put simply: they cost more money.

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The problem caused by the perverse incentives of the MDBs is exacerbated by the political incentives of debtor governments. Government representatives, who may be incompetent and/or corrupt, are well aware that they are in a stronger position vis-à-vis a bank’s staff than they would be in the negotiation of a grant. Indeed, incompetent or corrupt government representatives may well be responsible for managing and implementing weak loan-funded projects. There is an obvious question here: why do the MDBs continue to make loans knowingly, systematically, and extensively to incompetent or corrupt governments? In light of the long-standing good-governance mandate within the World Bank, for example, this is tantamount to what Steve Krasner (1999) would characterize as “organized hypocrisy”—the presence of long-standing norms that are frequently violated.39 As long as the “big loan” incentive structure operates, it is likely that the gap between rhetoric and practice will widen, and the credibility of institutions that make big loans will decline. Policy-based loans (PBLs) are generally a type of big loan.40 The success rate of PBLs consistently has fallen well short of expectations (see Collier 2000; and Dollar and Svensson 1998). Two reasons for this failure seem obvious. First, loan instruments list too many conditions and too much detail, and they are inflexible. Second, experience shows that policy-based lending is only effective when the recipient governments are convinced that the reforms are urgently needed and a process for their adoption is in place.41 Unfortunately, neither condition is met with any regularity. Although some actors in the large MDBs do undertake critical analyses of program design, they are not in the mainstream. In fact, these individuals are acting nobly rather than in response to any meaningful performancebased incentives to encourage them. To a certain extent, weak independent evaluation is tied to the politics of donor assistance. After all, the goal of monitoring and evaluating these projects lies in obtaining a clean bill of health so that disbursements can go forward and new loans can be made. Even an agency like USAID, which undertakes comparatively thorough assessments, is challenged by a lack of institutional learning and memory. The World Bank has a particularly poor record compared to that of USAID or the IDB. Writes Hammergren: Although the World Bank’s program is new, the near absence of rigorous, systematic evaluations is disturbing. To the extent it has evaluated these projects, the bank has relied on self-assessments by project staff and counterparts, desk exercises, and extremely short term field reviews. The periodic visits of the task manager, . . . sometimes accompanied by a few short-term consultants, . . . are not a substitute for comprehensive monitoring and evaluation. Also conspicuous by their absence

352 Erik G. Jensen are cross-cutting reviews of all projects, common activities, and methodologies. (Chapter 9)

The bottom line, according to Hammergren, is that once loans are made, “disbursements are the primary indicator of project success.” In light of this pattern, we see that MDB structures themselves thwart successful long-term reform initiatives. Furthermore, because those initiatives target relatively narrow sectors, they discourage problem solving. Narrowness is a significant obstacle when it comes to operationalizing or implementing “integrated governance projects.” As one development practitioner confessed: “We realize . . . that there are critical relationships between the judiciary, on the one hand, and the police, the public accounts auditor, [and] the prosecutors (among others), on the other. But have you ever tried to organize a project management group across sectors like that? Impossible.” 42 In the case of the World Bank, project implementation is managed from Washington, D.C. Implementation units are selected and approved by recipient countries, but the units have an extremely poor track record. USAID, The Asia Foundation, and the Ford Foundation place far more emphasis on in-country presence and engagement; still, because most agencies lack project expertise internally, they rely heavily on outside consultants. As more consulting firms and nonprofits enter the field, they, too, find themselves constrained by a lack of long-term presence and a lack of country-specific expertise.43 Although the problems created by the structure of assistance are substantial, many defend legal and judicial reform programs. Their reasoning: they are a “lesser evil.” Although the investments the banks make in these reforms are large, the loans are small when compared with loans for, say, education and health. If money is “wasted,” then, at least it’s not a lot of money. It is well beyond the scope of this paper, however, to test the veracity of the lesser-evil hypothesis. Instead we turn to an examination of the effectiveness of legal and judicial reform programs on the ground.

Constituencies For (and Against) the Standard Package Given the importance of the rule of law, one would expect to see broad and well-organized constituencies among various groups in government, civil society, and the market strongly supporting the standard package. One of the most important reasons for the failure of legal and judicial reform efforts, however, lies in the fact that constituencies for judicial reform—at least when we speak of judicial reform in terms of the standard package—tend to be extremely narrow. Citizens seem to have a stake in a well-functioning

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judicial system, especially on certain inheritance and family issues; but for most citizens in most developing countries, the formal legal system has little bearing on their daily lives. Similarly, we might expect businesspeople to be powerful advocates of the standard package. Instead, we find that many businesses make use of cost-effective substitutes for a well-functioning legal system and so remain almost entirely untouched by conventional approaches to legal and judicial reform.44 This section examines the interests of potential stakeholders in the larger reform process. It is organized around three questions: Which constituencies are present, and why do they “win”? Which constituencies are absent, and why do they “lose”? And, finally, why are broader, well-organized constituencies of support (or dissent) typically absent? which constituencies are present, and why do they “win”? Judges and Lawyers. Judges and lawyers dominate the reform agenda. They also dominate the design and implementation of the standard package.45 The insights of judges and lawyers are important, of course; but this group controls virtually every phase leading up to and including the implementation of the standard package. Where well-organized external pressures for accountability are absent, as they usually are in legal and judicial reform programs, reforms are limited by the capacity and the interests of internal legal cultures. Unfortunately, those responsible for the design of legal and judicial reform projects tend to be judges and lawyers with a material stake in the status quo, not social scientists or other external observers with an interest in change.46 Judges— especially appellate judges, who most often participate in the design of reform programs—tend to view lack of capital as the greatest constraint on judicial performance. The interests of judges in large capital investments for salaries, courthouses, computers, study tours, and training, then, fit perfectly with the interests of MDBs: the banks want to make large loans, and the judges want resource-intensive investments. The senior lawyers who participate in the design of the standard package tend to be officers of their respective bar associations. Their positions in part explain why the standard package usually makes some provisions for bar associations. Beyond this, support for the bar typically boils down to “buying off the opposition.” Indeed, as Adrian Zuckerman (1999) pointed out in a study of legal and judicial reform in three common law countries and ten civil law countries in Europe and Latin America, the most important opponent of legal reform is the practicing bar. In Chapter 7, Carlos Peña González underscores the problems that arise

354 Erik G. Jensen when internal actors participate in judicial reform projects: “Public actors . . . declare the need for reform and enthusiastically commit themselves to seeing the process through. Then, like players in a Greek tragedy, they do what is necessary to ensure that the process fails.” One reason Peña gives to explain this phenomenon has to do with the problem of undifferentiated functions within the legal system. As Peña notes, it is completely rational for those involved in the reform process to seek ways to profit from it. Consultants and Civil Society Organizations. During the fourth wave of the rule-of-law movement, the number of international and domestic consultants increased considerably. The number of civil society organizations set up to participate in judicial reform projects increased as well. The motivations of these specialized civil society organizations have not been the subject of critical comparative analysis but deserve closer scrutiny. Are they pressing for judicial accountability or taking advantage of funding opportunities and serving a public relations role? Whether the intentions of these groups are genuine or not, their ability to represent broader constituencies is questionable. Certainly their ability to mobilize broader constituencies for reform has been extremely limited. Legal Academics. For the most part, full-time legal academics tend to be on the margins in developing the standard package. Chile, however, seems to be an important exception. As Peña describes it, professional legal academics and social scientists drawn from the Law School of Diego Portales and the Corporation of University Promotion were drawn into the Chilean criminal justice reform process to mediate the design of public policy and the production of social science research relevant to policy formulation. Such groups, he notes, are rare in Latin America, but they are critical to successful reform. “This kind of academic community, virtually nonexistent in the region outside Chile, no doubt contributed to the success of the reforms in Chile” (Peña, Chapter 7). which constituencies are absent, and why do they “lose”? Citizens. Increased access to justice for ordinary citizens—and especially for the poor—is the weak sister in every standard reform package, yet it is almost always included. The charitable explanation: an emerging global consensus that broader citizen participation is integral to stronger democratic practices. This view finds support in the literature among those who believe that recent calls for greater transparency and participation are genuine.47 But most scholars have a more cynical explanation: it is one thing to pay lip service to access to justice; it is quite another to allocate enough

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money to the poor so that they threaten the larger reform initiative. The amount allocated to “pro-poor” activities will not be sufficient to surmount the costs associated with collective action capable of creating sufficient pressure for institutional reform that is responsive to the needs of the poor. Consequently assistance, such as legal aid, tends to be welfare-oriented and unthreatening to unreformed institutions. Civil Society Organizations. Civil society organizations are absent from or marginalized in the reform process because they lack clout or capacity. When a capable network of civil society organizations is at the table, however, its contributions can be noteworthy. Evidence of this comes from Chile. The Paz Ciudadana Foundation has strong links with powerful business groups in the country, including a significant presence in the media– communications market. With funding from USAID, it played a key role in mediating between parties in Chile’s recent criminal justice reform process. For reasons Peña is still exploring, the foundation was able to mobilize specific and global interests touching on the reform: “Without the participation of the foundation or a similar entity, it is probable that the consistent minority— conservative judges and lawyers—would have won out over the diffused and disorganized majority” (Chapter 7). Still, Peña and others do not embrace civil society organizations uncritically. Many are concerned about the range of actors in judicial reform who represent themselves as members of civil society: “The rise of a whole rash of reformers in the region of Latin America—who represent themselves as members of civil society—should be examined with care and without getting prematurely excited” (Peña, Chapter 7). why are broader, well-organized constituencies absent? Experience suggests six constituencies may have some capacity for collective organization: human rights groups, students, environmental groups, consumer groups, organized labor, and organized business. For example, human rights groups and students in Indonesia, labor groups in Yugoslavia and Poland, and consumer groups in Malaysia have catalyzed democratic reform movements. In general, however, reform efforts require strong, wellorganized economic actors who share a portion of the reform agenda—that is, economic actors who share broader public-interest goals in addition to their narrow industry-level objectives.48 This, too, is illustrated by the Chilean case. Well-organized constituencies in favor of legal and judicial reform, however, tend to be absent for three well-defined reasons: the traditional problems with collective action; the presence of substitutes for the formal legal system, especially among business interests and close-knit groups of citizens;

356 Erik G. Jensen and the existence of specialized tribunals, including ADR forums and other special courts. • The problems with collective action. Large groups of citizens—the poor, for example—tend to be fragmented and, so, are least able to engage in collective action, certainly by the criteria that Mancur Olson (1965) identified in his seminal work on the subject (also see Varshney 1995).49 Along these lines, Santos Pastor (1993) examined citizens as beneficiaries of legal and judicial reforms. He concluded that “the whole body of citizens” incurs high transaction costs when it comes to organizing collectively, with modest and speculative individual gains; as a result, they face enormous collective-action problems in the context of diffuse institutional reform programs with few short-term gains. • Substitutes for formal legal institutions. Substitutes for legal institutions can weaken both formal institutions and coalitions for legal reform. Among the substitutes for formal legal processes are relationships with extended families, tribes, or clans; good-faith dealings and the accumulation of trust over time; abundant information, a by-product of technological advances; guilds and other organizations that mediate or internalize risk; and voluntary associations with carefully constructed codes of conduct. There also are illegal substitutes for legal institutions—mafias, for example—that mete out judgments under their own code of justice. • ADR and special courts that reduce coalitions. Specialized solutions typically amount to a subset of the legal and illegal substitutes mentioned above. These include special courts within the larger court structure—for example, courts with family, commercial, or bankruptcy jurisdiction—and certain special courts within the court system that are especially encouraged by the executive (see, for example, Cazalet 2001), among them the lok adalats in India (see Chapter 3). A third type of special forum lies within the executive branch of government. These forums tend to be highly political (if not politicized): they deal with terrorists, drug traffickers, and the like through summary procedures. A fourth type exists outside both the judiciary and the executive but within the democratic framework—for example, dispute resolution forums organized by local political parties. Finally, a fifth type of special court also operates outside the legal framework but with weak democratic credentials. The Maoists in Nepal, for instance, manage dispute resolution forums that compete for decision-making authority with the formal system ( Jensen, Moog, and Kardar 2001).50 Like all of the forums mentioned here, by meeting the needs of their constituencies, they dissuade those constituencies from pressing for judicial reform.

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Many of us who have designed and tried to implement participatory processes around reform efforts acknowledge their importance.51 Indeed, developing a credible process is more important than any technical reform, although, in general, designing a credible process is a much more difficult task.52 The World Bank’s Comprehensive Development Framework is an example of the rhetoric that typically surrounds participatory exercises. The framework notes that “broadening the concept of ownership to mean the country, not only the government, requires consultations with all stakeholders.” 53 Unfortunately, consultation with all stakeholders is not a realistic goal in a broad-based institutional reform initiative: those who reasonably should be considered stakeholders are simply too numerous. We should never conflate limited consultative processes within a project framework with broader democratic processes. Stakeholder consultations cannot substitute for more comprehensive and deconcentrated deliberative processes.54 Even if participatory processes and channels of implementation are designed in good faith, however, the practical problems of applying them adequately are significant. Among those problems is the deep-rooted cynicism that potential constituencies harbor toward the consultation process in any reform program.55 In a series of consultations funded by the Asian Development Bank in Pakistan between 1997 and 1999, for instance, meaningful consultations were stymied by both skepticism about the reform process as a whole—including but not limited to legal and judicial reforms—and citizens’ lack of participation in larger political processes.

Examining the Record: Successes and Failures Although theoretical insight into the dynamics of institutional change has sharpened dramatically over the last decade, mainstream MDB practice still adopts a limited systemic approach. The boundaries have changed over the last ten years, but resource-allocation patterns suggest that most attention still is paid (as it always has been) to the formal legal system. Indeed, project strategies and activities remain overwhelmingly technocratic; for the most part, they do not address the larger political economy of reform. Again and again, development professionals have focused on poorly managed courts, limiting their reform strategy to a technical understanding of why courts fail. Even here there are no surprises. The reasons courts fail are fairly consistent from place to place: poor management of personnel, finances, and cases; a lack of skills, training, and education among court staff members; perverse performance incentives; and an overall lack of transparency and accountability.56 Not unexpectedly, effective judicial performance

358 Erik G. Jensen standards have been extremely difficult to introduce, as has an effective approach to corruption.57 The following discussion critiques the prevailing patterns of resource allocation— courthouses, equipment, and training (as opposed to legal education). It should be considered with the critique of the participatory processes in the standard package discussed earlier. courthouses To our knowledge, there is only one study that claims to provide empirical evidence linking the construction of new courthouses to improved judicial performance (Buscaglia and Dakolias 1999). The study focuses on Singapore, which launched an ambitious judicial reform program in the early 1990s.58 New courthouses were built and more resources were allocated to the judiciary, and somehow those investments translated into a 39 percent improvement in the rate of case disposal. The precise link between new courthouses and improved performance remains ambiguous. Common sense would suggest that well-designed, functional workplaces are appreciated by court staff, but as far as we are aware no study has been able to disaggregate the extent to which better courthouses improve court performance. This is a significant criticism given the amount of money allocated for building new courthouses. Unfortunately the criticism does not end when the courthouses are built. Maintaining facilities requires significant resources as well. Yet, as noted earlier, the maintenance of capital assets is notoriously underbudgeted and unattended to in developing countries, and loan funds do not provide sufficient support to maintain these facilities over time. case management and computerization Professional management is essential to the technical success of judicial reform, yet it is a relatively new focus of reform programs. Until the 1980s, most analyses failed to acknowledge any need for professional management. On a purely technical level, the comparative literature provides abundant support for those who point to the need for professional managers. The bench, the bar, and the public are well aware of the problems associated with delay, unpredictability, and the high cost of litigation, but their sense of specific solutions—among them case management—has been weak. Indeed, experience suggests that improved court administration and case management may be the single greatest contribution of the standard package (see, for example, Steelman 2000; and Tobin 1998). The extent to which a significant capital investment in computer technology is necessary to improve court administration, however, remains a deeply contested issue. John Blackton (2001) suggests that countries may

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have three motivations for converting to and installing computerized case management applications (CMAs): to appear modern, to reduce file tampering by court personnel, and to reduce delays through more accurate and timely reporting on case status. Blackton argues, with some force, that only the third motivation—reducing delays—is justified by the evidence. Although computers can help in case management, and the technical competence to design and install useful CMAs is clearly available on the international market, there may be other, more effective ways to reduce delays in the courts. Other nettlesome issues yet to be resolved: Is delay actually a serious problem? 59 Is computerization necessary? Would existing manual systems do just as well? And do poor nations have the economic and technical means to maintain computerized CMAs without long-term donor support? training Enhancing the human capital to move forward a reform process is not an inimical objective, yet experience suggests that training (including the ethics training designed to change the local legal culture) receives a disproportionate amount of attention. Donors like training programs because they are easy to mount, almost infinitely flexible in size and resource requirements, and highly visible. Local leaders like them because they demonstrate a commitment to reform and offer the opportunity for patronage and contact with lower-level court personnel. The ease of setting up training programs, however, far surpasses their success rates (Hammergren 1998, 1–2). The fundamental problem: judicial training programs rarely are tied to meaningful incentives, to incentives that relate to performance. Although salaries, appointments, promotions, and transfers are significant incentives, the lessons derived from targeted training will stick only if they are linked to relevant performance incentives. Unfortunately, very few judicial systems have these types of incentives in place. Where incentives are not effectively linked to credible performance standards, training programs amount to a colossal waste of time and money. Although donors are fond of training programs, they are reluctant to allocate resources to legal education. There seem to be two primary reasons for that reluctance. The first is a simplistic understanding of the controversy over legal-education programs during the second wave of rule-of-law reform (see note 25); the second is concern that legal education demands the sustained support of both donor and government, support that can be difficult to marshal.60 But in terms of effectiveness, the preference for investment in judicial training over legal education is a bad choice. Many of the judges who take part in training activities are midcareer and often have had a woefully inadequate formal legal education. The efficacy of many training programs, then, is constrained by the participants’ lack of educa-

360 Erik G. Jensen tion. A more strategic intervention would address legal education first. Legal education, quite simply, is the foundation of development in the formal justice system as well as in ancillary institutions. Many of the contributors to this volume have long argued that more resources should be committed to legal education. One example of the potential payoff is the National Law School of India University, in Bangalore. This school was started in the 1980s with indigenous funding and support from the Ford Foundation. It has developed into a center of excellence in legal education; and today it is as transformative an investment in legalsystems reform as any in India. Marc Galanter evaluated the school’s program during the 1990s and agreed with this assessment.61 Carlos Peña’s experience in Chile corroborates the importance of legal education: he stresses the centrality of credible institutions of legal education to the successes of the Chilean reform process as a whole. legal information The standard package usually allocates resources to the generation and dissemination of two types of information. Both improve transparency and could address corruption, although there is little evidence of an impact on corruption to date.62 The first is the statistical information the courts use internally. Installation of case management systems—putting aside the issue of computerization for the moment— can be a strategic intervention: such systems generally improve the management of cases by providing timelines and a method of tracking the progress of each case. They also show how individual judges treat cases, information that could be useful in the hands of judicial leadership if that leadership chooses to care about corruption and develops the resolve to do something about it (a significant qualification). The second type of information is disseminated in the public domain. Here intervention might take the form of a mandatory annual report—with data— on the judicial system’s accomplishments; or it might involve publishing judicial decisions. The latter is often taken for granted, but frequently—in countries from Indonesia to Venezuela—the rationale for Supreme Court decisions has gone unreported. Arguably the greatest success of a recent World Bank project in Venezuela lay in helping the Supreme Court move from a system in which the rationale for its decisions was confidential, to a system in which the Court’s decisions are published on the Internet.63 This low-cost activity could be helpful in an anticorruption campaign (compare Johnston and Kpundeh 2001). In general, the decision to publish a high court’s decisions is admirable; the decisions themselves sometimes are not. In fact the quality of the decisions can be so poor that one can only conclude that the justices are either incompetent or corrupt, or both.64

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Improving Reform Efforts Most rule-of-law programs do not seriously consider why the link between laws and legal institutions, on the one hand, and the normative behavior of judges and lawyers (and the public), on the other, is so weak. Part of the answer, we would argue, has to do with incentives. Because they focus on substantive law reform and various training efforts, rule-of-law projects generally pay very little attention to incentive structures and, hence, to the larger political economy of institutional reform. Difficult as the process is, however, institutional reforms are likely to take hold only if incentives are linked to credible and binding standards of performance that take into account the local context as well as the formal and informal constraints on performance (Nelson 2002). To make these connections requires empirical work, an alltoo-familiar refrain. making the case for an empirical approach This section builds the case both theoretically and practically for undertaking certain types of research to support the design of reform programs. In many respects, it is difficult to examine the record of successes and failures in legal and judicial reform projects because we have little baseline data against which to assess progress. Indeed, the lack of credible baseline data amounts to the first failure in most projects. Much of the foregoing analysis implies or assumes an understanding of what courts and other dispute resolution forums actually do in particular countries. Unfortunately, information of this type is generally missing. The frustration surrounding judicial backlogs is a case in point. Judges across the developing world have been making the same plea for decades: “Our backlog of cases is X thousands or X millions. Give us more judges, more courtrooms, more resources, and our performance will improve.” 65 But the size of the backlog isn’t as important as determining how the backlog got there in the first place. What incentives allowed— even encouraged—a backlog to accumulate? How effective are the available substitutes that allow actors to circumvent backlogs and the delays that accompany them? Because the average clearance time in many countries is several years (as opposed to several months), we need to know what happens to cases that are simply not pursued. In effect, we need to know about the incentives that draw people away from the courts. If we want to make the courts more efficient, we need to know about the efficiency of the informal competition (Nelson 2002). There are many good and practical reasons that donor agencies should support empirical research on the world’s legal systems, but three are espe-

362 Erik G. Jensen cially compelling. First, it is impossible to plan interventions—to target institutions, to design activities, and to calibrate incentives—without knowledge. Second, it is impossible to evaluate the progress of implementation or its success in the absence of research that establishes baseline data and a reliable framework for measuring progress against those data. Third, as projects are increasingly scrutinized, failure to support empirical research for these purposes may lead to allegations that donors have failed to exercise due diligence. challenging assumptions about dispute forums: the limits of common sense Deborah Hensler analyzed extensive data on litigation and ADR in the United States and the mistaken assumptions behind passage of the Civil Justice Reform Act of 1990. Based on that research, Professor Hensler (2001) cautions policymakers in developing countries against the wholesale and untested importation of a standardized judicial reform agenda: [You] ought to be particularly skeptical about claims with regard to the consequences of introducing these reforms into your legal system, whose legal regimes may produce very different incentives for judicial, lawyer and party behavior. It is only by understanding the realities of litigation within your own court systems—what is actually going on, and what drives behavior—that you will be able to design programs that improve your systems. Such understanding requires careful quantitative and qualitative analysts. Simply relying on “common sense” will not do, because common sense—however common—is often wrong. (8) 66

The RAND study of civil litigation in the 1990s, led by Hensler, showed just how wrong common sense can be when held up to the scrutiny of empirical analysis (Kakalik et al. 1996). The study demonstrated that ADR is a wash for the parties in terms of both time and money. If ADR is done correctly, it should influence the parties’ satisfaction on variables like participation and fairness. Yet the study found that parties prefer more formal (and so more time consuming) and expensive variants of ADR. Though very few cases in the United States go to trial, the Rand study showed that ADR does not reduce the already low percentage of litigated cases.67 Like Galanter and Krishnan (see Chapter 3), then, Hensler and her colleagues drew attention to the importance of negotiating “in the shadow of the law.” A recent empirical study in Pakistan came to many of the same conclusions (Nelson and Jensen 2001). Funded by the ADB and developed in collaboration with The Asia Foundation, the study found little in the way of common sense regarding citizens’ preferences for informal dispute resolution forums. It showed that especially in the less tribal areas of the country, citizens viewed the courts (including the lower courts) as the institution

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most capable of delivering “justice.” 68 Traditional community-based ADR ( panchayats) were regarded as speedy and inexpensive but largely unjust, mostly owing to the fact that they were easily captured by local elites. For our purposes, this would indicate that fixing the formal system is likely to be a strategic (and popular) intervention. Exactly how and why this is the case, however, remain questions for those with sound empirical data. capturing baseline data in diverse institutional settings To develop the baseline data against which progress or change can be measured, sophisticated research methods are required. These methods allow for the careful collection of quantitative and qualitative evidence on the role of the courts and other dispute resolution forums in a particular context. For example, an examination of case records is needed to map disputes,69 understand clients’ motivations,70 evaluate the quality of judicial reasoning, and monitor existing clearance and disposal rates. Litigant and would-be-litigant surveys, interviews with judges and other court personnel, and detailed cost-benefit analyses across branches of government and within the judiciary are prerequisites for any effective and sustainable effort to promote legal and judicial reform.71 To capture a functional picture of dispute resolution, at least four layers of the dispute resolution landscape are relevant: • The first layer concerns the formal justice system, including the courts and various special tribunals. • The second layer includes formal, quasi-formal, and informal ADR—a full array of mediation, arbitration, and conciliation techniques in statesupported, community-based, traditional, and private settings.72 • The third layer includes administrative dispute resolution forums designed to handle disputes between private citizens and bureaucrats. • The fourth layer includes a vast array of legal and illegal dispute resolution substitutes operating in relation to—although never fully constrained by or coordinated with—the dispute resolution sources mentioned above. As a general rule, research designs need to focus greater attention on formal and informal substitutes for the formal legal system. It is beyond the scope of this paper to discuss these substitutes in detail, but we would like to mention two in passing. The first relates to information density; the second, to expanded relational networks. Recent research suggests that technological advances in the dissemination of information can provide meaningful substitutes for the legal system and its enforcement mechanisms in commercial transactions. Detailed information about fellow traders or borrowing partners can be a far more potent and

364 Erik G. Jensen targeted risk management tool than a written contract solemnizing an economic relationship. In Brazil, for example, detailed information about the creditworthiness of businesses, available on the Internet, in many cases was an effective substitute for a well-functioning judiciary.73 Likewise, many of the most successful ADR mechanisms, including expansive relational networks, lie beyond the pale of traditional ADR analysis. Distinct from information technology, or perhaps corollary to it, are the expansive relational networks in Asia and much of Latin America (see, for example, Dezalay and Garth 1997). These networks tend to confound the standard literature on the benefits of objective contracting. Where the shadow of the law is entirely wanting, however, businesses can thrive if dysfunctional courts are systematically avoided. Indeed, empirical evidence suggests that informal codes of conduct can support vast networks of subcontracting far beyond what the standard literature concerning collective-action constraints would suggest. Violations of these informal codes are not penalized by law; instead, they are penalized by a loss of reputation and business. monitoring and evaluation An approach that stresses the importance of empirical knowledge in the design of interventions by extension must emphasize an empirical basis for monitoring and evaluation (see, for example, Hammergren et al. 2002). The process of measuring outputs is not easy. Many factors are at work here, but five are particularly well known: • First, ascertaining causality is extremely difficult. A significant decrease in the number of certain human rights abuses was documented in El Salvador and Guatemala, for example, just when judicial reform programs were introduced to address the problem. The decrease may have been tied to the end of a protracted civil war, external political pressure, or to other donor-funded programs with a focus on monitoring the abuses. The link between a program’s goals and a program’s success can be extremely difficult to nail down. • Second, meaningful impact indicators are notoriously difficult to develop.74 Most indicators are focused on efficiency—for example, by reducing delays and backlogs, by increasing clearance rates, and by cutting the cost per case disposed. Yet, as Don Clarke points out in Chapter 5, these indicators are largely irrelevant when it comes to the task of evaluation in China. Indicators for more significant problems, including corruption, incompetence, limited access, politicization, and bias, however, are still in the earliest stages of development. • Third, impact is difficult to document. Targets such as higher closure rates for criminal cases, the satisfactory resolution of cases, and reductions

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in the percentage of unsentenced prisoners are often measured unreliably. Developing independent measures, however, can be extremely time consuming and expensive. • Fourth, results tend to be indeterminate. In part this constraint relates to the nature of reform itself: institutional change takes time; and legal cultures are especially resistant to change. In addition, the human resource base to enact judicial reform often is weak; and the incentives and recruitment system often are poor. Carlos Peña argues that in light of these difficulties, the best we can do in our assessments is to achieve a “high degree of plausibility” (Chapter 7). • Finally, the development community in general pays little attention to evaluation—although some agencies pay slightly more attention to it than do others. In any event, the reasons for avoiding an empirically based politicaleconomy approach to legal and judicial reform are many. Research is difficult, and results are slow to evolve. And it is surprisingly difficult to find common definitions across legal systems in what should be comparable groups of courts, lawyers, and functions—a problem that extends even to circumscribing the domain of “the legal system.” 75 The debate over (and the difficulties that attach to) the development of meaningful performance indicators is of long standing. But the growing risk that the failure to exercise due diligence will be exposed publicly may provide incentives for change. The report of the U.S. General Accounting Office (GAO) titled Former Soviet Union: U.S. Rule of Law Assistance Has Had Limited Impact and Sustainability (2001) is just one example of the growing concern about due diligence. For baselines, the agency was given microindicators that reflected outputs—for example, X judges trained, X manuals developed—rather than indicators that would or could serve as benchmarks for sustainable reform. The GAO then turned to aggregate, very generalized data in the Freedom House’s Rule of Law Ratings for Newly Independent States and found that the score of only one of the twelve countries had improved in terms of rule of law, and that the ratings in the two countries where most resources were focused—Russia and Ukraine—actually had deteriorated between 1997 and 2000.76 The GAO concluded that the various U.S. agencies involved in rule-of-law reform in the former Soviet Union largely had failed to monitor and evaluate their own programs. Pressure for due diligence will grow as resources disbursed to rule-of-law portfolios increase.

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Conclusion The story of legal and judicial reform is one of modest successes (some potentially important to citizens) and frequent failures, and of significant gaps between theoretical understanding of legal systems and project design and implementation. The gap between theory and practice stems from a number of pressures—among them the political economy of reform, donor structures, and limited staff and research. It points to the crucial need for investment in empirical approaches to legal systems development and to the invidiousness of the distinction that some in the development community make between action and research. In this chapter, I have argued that with the benefit of conceptual and definitional clarity, we need to adjust our expectations and calibrate our goals in rule-of-law programs. Our objectives should be much more modest. We should view with at least some skepticism the notion that support for the judiciary translates into fewer human rights abuses, faster economic growth, and more robust democratic participation. The evidence for these thick interpretations of the rule of law is weak or mixed. That doesn’t mean the programs must fail: we do have evidence that the standard package of judicial reform interventions, where the focus of those interventions is on thin interpretations of the rule of law, can increase the efficiency of the courts and the transparency of the judiciary. We also have argued that the institutional loci of the functions the standard package hopes to promote—in the courts or elsewhere—must be identified. Attempts to understand the failure of legal and judicial reform projects, at least insofar as they reflect the standard package, must begin by assessing who is involved in the projects, who is excluded from them, who supports them, who resists them, and who simply doesn’t care. Legal and judicial reform projects must take into account the incentives of those who are involved and those who are excluded—and must tie those incentives to real improvements in the performance of the courts. Finally, we need to situate our understanding of what the courts actually do within a much larger and more sophisticated understanding of how local institutions and networks operate. Pretensions to universalism in accounts of the rule of law must give way to more differentiated analyses and prescriptions in particular times and places.

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Notes 1. To bridge the gap between theory and practice, I compare two competing strains in the literature: claims regarding the role of independent formal judiciaries in the context of a new global constitutional order that is committed to political and economic liberalization, and the actual record of accomplishments of legal and judicial reform projects “on the ground.” The merits of these two strains are defined in terms of the extent to which they compare with the empirical record. 2. Some of our colleagues and students take issue with this definition, arguing that a fiction surrounds the broad-public-knowledge criterion in relationship to the law. Except for a subset of laws that codify common sense with respect to traffic crime and family, they insist, many laws remain beyond public knowledge even in countries where the rule of law is purportedly strong. See, for example, Ellickson (1987, 87– 88), who discusses among other cases therapists’ lack of knowledge in California about significant case law and general rules regarding potential liability for their patients’ actions. 3. See, for example, West’s synthesis (forthcoming) of Western legal scholarship on the rule of law. In general, West says, laws are (1) broad in scope; (2) created by a legitimate authority in a way that makes them certain, clear, publicly accessible, mutually consistent, prospective, and able to be obeyed; (3) applied through a transparent process characterized by principled reasoning and the possibility of organized appeal; (4) interpreted and monitored by an independent judiciary free from political control; and (5) congruent with the behavior of the officials who administer them (that is, congruent with their actual administration). These five clusters of attributes are largely formal or procedural. Also see Fuller’s seminal work, The Morality of Law (1977). 4. Kelsen’s influential definition of the commonality of legal systems is even more sparse: “a normative system backed by a credible threat of using physical force against a violator of the norms” (quoted in Posner 2003, 171). Interestingly, as central as enforcement is to the embedding of the rule of law, it is rarely an issue of research across countries or a focus in rule of law–styled programs. 5. Peerenboom’s work includes an excellent discussion of the thick–thin differences and an argument for employing a thin definition, with China the primary point of reference. 6. My thanks to John Donohue for this example. 7. This, of course, is entirely consistent with the groundbreaking field studies and thick-description methodology presented by anthropologist Clifford Geertz (1983) over a lifetime of work on interpretations of meaning based on local knowledge. 8. Even within the European Union (EU), these kinds of comparisons are difficult to develop with methodological rigor. See Erhard Blankenburg’s contribution to this volume in Chapter 2; also see Merryman (2000a, 2000b). 9. On the other hand, Blankenburg (Chapter 2) would argue that at least in some cases, an institutional definition works very well. For example, the Council of Europe defines prison by its functions, and the term is understood widely. Key to understanding domains and definitions is identifying which procedures are internalized

368 Erik G. Jensen in legal institutions and which are externalized. In The Netherlands, for example, administrative disputes are internalized in the justice system: the plaintiff files a claim, and the case comes before a judge for trial. No-contest divorces, however, are externalized: papers are filed and approved with no formal hearing. 10. The values implied by the rule of law often are associated with modernity. Of course, the meaning of modernity itself is contested. Indeed, state discourses about modernity reveal the sometimes-conflicting tensions between economic development on the one hand and perceived threats to national culture and sovereignty on the other. In this sense, alternative forms of modernity stand in opposition to the dominant Western formations. For example, Dirlik (1994) argues that non-European societies have critical claims on the history of capitalism, which contrast with standard Eurocentric views on the links between capitalism and the development of the modern state. And Barlow (1991) argues that Chinese intellectuals have developed a sophisticated sense that China is modern without necessarily being Western. 11. For an interesting historical account of security, economic, and democratic motivations, see Packenham (1973). 12. Tom Heller is developing a framework for a forthcoming case study on the pharmaceuticals industry. To explain inconsistent evidence regarding the centrality of formal legal institutions in the context of economic development, he suggests we must consider the possibility that economic actors pursue predictability through a portfolio of public and private institutions. This approach would place legal risk in the context of multiple risks. With respect to FDI, for example, we could imagine at least five general sets of risk: (1) commercial risk (for example, from fluctuating markets); (2) political risk (from expropriation); (3) legal risk (from unpredictable courts); (4) regulatory risk (from capricious rulemaking or decision making); and (5) social risk (resulting in citizens’ taking action for or against certain types of investment). 13. An analogy can be seen in the debate in Europe over the policy initiative for an EU Charter of Fundamental Rights. One group wants to exclude social rights entirely or minimize their legal content by including them in a “programmatic” section or by making them purely declaratory. The other group wants to maximize the content of social rights, elevate them to the same level as civil and political rights, and make them justiciable and enforceable (Bercusson 2002, 26 –29; also see Helfer 2002). 14. See Cross (1999) for an empirical study that, among other things, compared countries with and without the constitutional right to be free from unreasonable search and seizure. He found that whether the right was constitutionally guaranteed or not mattered very little in practice. But he did find subtle differences on a number of factors between countries with and countries without constitutional protections. For example, judicial independence was a statistically insignificant variable in nations with a constitutional protection against search and seizure, but it was an important variable in countries with no constitutional protection (there may have been a statutory protection). 15. “Even if we accept the empirical evidence that more and more nations have adopted written constitutions with bills of rights and have empowered their courts

The Rule of Law and Judicial Reform 369 to uphold these new charters as the supreme law of the land, it is not self-evident that the outcome, or even the meaning of these new institutions, is the same in all societies. While we may recognize a globalizing constitutionalism, the challenge is to understand the specifics of its incorporation into particular national legal systems” (Klug 2000, 3). 16. If the transformation is partial or incomplete, it may simply reinforce the economic and political power structure of the prior regime under the guise of reform. On the negative reinforcing effects of partial reform in Eastern Europe and Russia, see Hellman (1998). 17. The second wave of the law and development movement seemed to end with a self-hate phenomenon among certain lawyers and legal academics; the current rule-of-law movement (waves four and five) is marked with a self-lovefest among lawyers and judges from both developing and developed countries. For a brief history of rule-of law reform, see the section titled “How the Standard Package Was Derived: Five Waves in the Law and Development Movement.” 18. “The findings of this study also suggest that a great deal of writing about courts is fundamentally flawed. Treating courts and judges as either philosophers on high or as existing solely within a self-contained legal community ignores what they actually do. . . . To ignore social science literature and eschew empirical evidence, as much court writing does, makes it impossible to understand courts as they are” (Rosenberg 1991, 342). Even the educational effect of Supreme Court decisions seems highly contingent (see Klarman 1998, 176 –78; and compare Bickel 1962, 26). 19. One lesson from earlier periods is that the law has limits: it cannot solve what are essentially social and political problems. It is not possible to bootstrap these problems through the law. As Tamanaha (1995) puts it: one cannot “conjure a social agenda into reality by insisting that law requires it” (486). 20. Many would argue that Rosenberg’s assessment goes too far. Other studies have found that on discrete issues, Supreme Court decisions do influence larger social processes. It simply depends. In an article about civil rights litigation in the United States, Michael Klarman (2002) argues that the Supreme Court’s criminal procedure decisions had virtually no impact on the criminal justice system in the South in cases involving allegations of serious crimes (such as rape) between blacks and whites. On the other hand, Klarman finds that the Supreme Court rulings did have an indirect effect on other dimensions of the civil rights movement. For example, he finds that the process of civil rights litigation may have contributed to mobilizing social protest, a finding with which many would agree (see Klarman 2001). Moreover, new research suggests that negative jurisprudence can have the unintended effect of advancing social reform (Donohue, Heckman, and Todd 2002). Still, the point remains that opportunities for significant social gains—intended or unintended—through litigation are narrow although perhaps not as hopeless as Rosenberg has argued. 21. I speculate about the connection between current theoretical justifications and donors’ gravitation toward formal legal institutions in this wave of law and development in the section titled “The Political Economy of Donor Assistance.”

370 Erik G. Jensen 22. In practice, USAID is split into two units: democracy and governance, and economic growth. At times the interaction between the two is weak (see Jensen 2002). 23. This is consistent with Samuel Huntington’s (1968) authoritarian prescription: deemphasize participation in favor of building political institutions, especially a dominant political party that can exercise control. Huntington’s lead example of positive authoritarianism was the military regime of Ayub Khan and the Basic Democracies program in Pakistan in the 1960s. Huntington argued that aspects of modernization—including urbanization, increasing literacy, and industrialization— coincided with stagnant political development. The weakness of Huntington’s authoritarian prescription, at least as it related to Pakistan, was laid bare not long after his famous book went to press: Ayub Khan was forced out of the government early in 1969. 24. For a thought-provoking analysis of the diffusion of laws across borders, see Boyle and Myers (2002). For a remarkable historical account of Justice Thurgood Marshall’s role in the first wave of the rule of law, see Dudziak (2002). 25. The second wave of law and development in most of the literature is viewed as the first wave. The second wave of law and development was examined by Trubek and Galanter in their famous article, “Scholars in Self-Estrangement” (1974), a critique that has been uncritically mimicked during the nearly three decades since it was published. Indeed, Galanter and Trubek’s critique has been mimicked prodigiously. Theirs is one of the one hundred most-cited law review articles of all times (Shapiro 1996). Were Trubek and Galanter right in their analysis of the second wave? Careful historical accounts suggest that Latin American legal academics were concerned about reforming the pedagogy and curriculum of legal education before the arrival of the so-called imperialists (see Perez-Perdomo 2003). 26. Whereas the second wave was 90 percent funded by organizations based in the United States, the fourth wave was funded by diverse international sources. U.S. bilaterals and foundations funded approximately 25 percent to 40 percent of the total assistance during this period. (These data were taken from a talk by Tom Carothers at Stanford University in November 1999.) By 1999, every established democracy in the world had a rule-of-law promotion program. 27. Interpretations of their respective charters are evolving, however. The ADB, for example, is entering the domain of criminal justice. 28. One definition of Washington Consensus, a term coined by John Williamson in 1990, as it came to be used is “Liberalize as much as you can, privatize as much as you can, and be tough in monetary and fiscal matters” (Gregorz Kolodko quoted in Williamson 2000, 255). 29. Scott (2001) broadly summarized some of these contributions: “Through the work of agency and game theorists at one end of the spectrum and law and society theorists at the other, we are reminded that laws do not spring from the head of Zeus nor norms from the collective soul of the people; rules must be interpreted and disputes resolved; incentives and sanctions must be designed and will have unintended effects; surveillance mechanisms are required but will prove to be fallible, not fool-

The Rule of Law and Judicial Reform 371 proof; and conformity is only one of many possible responses by those subject to regulative institutions” (54). 30. For an extensive description of the types of activities funded, see deLisle (1999). 31. Julio Faundez (2000) calls law reform a “fatal attraction” of Western lawyers. That attraction, he says, is a product of lawyers’ excellent drafting skills and lack of time to take stock of the history, culture, and society of a country to understand which reforms might be more meaningful. On the other hand, although law reform invites critical scrutiny, it cannot be dismissed per se as unimportant. Laws and legal practices have been transplanted to developing legal systems throughout history. 32. This crowded reform agenda makes success elusive and reduces the time for consultation. It may unintentionally undermine the reform process. 33. But see Rosenberg (1992). Professor Rosenberg selected nine periods during which the U.S. Congress frequently “attacked” the courts by passing bills in response to unpopular decisions or limiting jurisdiction, for example, and then examined U.S. Supreme Court decisions during the same periods. He found that in six of those periods, the Court succumbed to congressional pressure. That finding led him to conclude that judicial independence is least likely to be found when it is most needed. 34. Carothers is absolutely right about the importance of leadership. But in practice, donors often are left with handfuls of tea leaves as they try to ascertain or generate the political will to initiate projects and to sustain them in recipient countries. 35. Until recently, MDBs provided almost no assistance in the sphere of criminal justice. (USAID has supported criminal justice reform for decades.) The ADB is beginning to focus more on criminal justice and the police; the World Bank is still reluctant. 36. But see Lawyers Committee for Human Rights (1996, 2000). 37. Compared with the MDBs, bilateral donors maintain greater control over the management of their funds and the implementation of their projects. In fact, USAID and other large bilaterals place long-term consultants in-country with a large staff of in-house or contracted professionals. The MDBs, on the other hand, work remotely: they manage their projects through a government entity and an implementation unit. Unfortunately, the World Bank’s implementation units have been especially weak when it comes to pushing government entities into action. 38. See ADB (2001), a study prepared by The Asia Foundation for the ADB. Also see the World Bank sourcebooks (2002a, 2002b). In recent years, the World Bank has tried to refocus on poverty. In this context, the Bank has suggested three activities to increase access to justice: legal counseling and advocacy (especially for vulnerable groups), ADR mechanisms, and modern court facilities. Similarly, the ADB recently commissioned a study to explore ways in which the Bank and other donors can increase access to justice more effectively. But traditionally, increasing the access of vulnerable groups has been the area of greatest investment by the Ford Foundation and The Asia Foundation. For an interesting comparison, see Willis (1981, cited in Ferguson 1994, 12 –13).

372 Erik G. Jensen Willis opened the black box and exploded the notion that simple institutional reforms could serve the broader goals of social, political, and economic reform (reducing corruption, for example, or alleviating poverty). His methodology involved a careful ethnography of what actually happens to working-class children when the schooling apparatus is brought to bear on the target population. 39. Krasner’s Sovereignty: Organized Hypocrisy is an excellent historical and political account of the myth of the Westphalian sovereignty of nations. For an excellent study on the need to revise conceptions of sovereignty, see Deng et al. (1996). 40. Most PBLs are not linked to specific project activities but to the implementation of policy reform. (PBLs aspire to have an impact on an entire sector or economy.) These loans are disbursed relatively quickly, to cover the immediate adjustment costs arising from policy reforms. Project loans, on the other hand, are disbursed relatively slowly, as the project’s expenses are incurred. 41. The oft-cited example of success with policy-based loans is Costa Rica. But the government showed substantial commitment to reform activity before the MDBs began to support projects there. 42. In an interview with the author in May 2001. 43. In the face of obviously incompatible incentives, surprisingly few individuals focus on donor accountability in the area of legal and judicial reform. Tom Carothers, vice president of the Carnegie Endowment for International Peace, is an exception. 44. In economies in transition—like Vietnam’s, for example— courts are largely irrelevant to many business transactions; and some worry that legal reform could impede the productive and innovative business relationships that have developed under current business practice, in which “substituting behavior” predominates. This accords with, among others, the findings of economists John MacMillan and Christopher Woodruff (2000). 45. For an excellent political-economy analysis of the interests of internal actors in the lower courts in India, see Moog (1997). 46. This is slowly changing. 47. For example, a recent ADB (2000) bulletin outlines the Bank’s law reform projects by country; many of them have an access-to-justice component. And the World Bank Law and Justice Conference in 2001 also featured much discussion on improving access to justice as a key objective of legal reform. 48. In some Latin American countries, though, human rights coalitions have endured and succeeded in developing broad-based support. 49. Simply stated, Olson’s “collective action problem” is twofold. First, the interests of individuals in a group may contradict the interests of the group to which the individuals belong. Second, smaller groups are easier to organize than larger groups, and members of the larger group are more likely to free ride on the efforts of those members who act. 50. As the brutality of the Maoists has increased and the internal discipline of the insurgency has decreased over time, some suggest that constituencies for judicial reform in Nepal could be strengthened.

The Rule of Law and Judicial Reform 373 51. In a 1999 paper, Jensen and Alkire discuss five questions: (1) What participation is “meaningful,” and how much is enough? (2) Does the participatory approach simply ratify preconceived prescriptions? (3) Are consultations expected to substitute for broader democratic deficiencies? (4) Does the judiciary have unique characteristics that affect the value of participatory processes? And (5) are there tensions between the priorities of citizens and the internal legal culture? If so, how can they be managed in participatory processes? 52. “Precisely because intensive discussion is needed more than diktats, there is no merit in offering a detailed blueprint for global reform: the process of discussion is part of the solution” (Sachs 1998, 23). 53. The quote comes from a description of the framework on the World Bank Web site (www.worldbank.org). The goal of all-inclusive participation reflects a larger problem within the Bank: responsible goal setting. The Bank tends to “proliferate its goals, intentions, programs, decisions, without being much constrained by what it can plausibly deliver, because as a political organization its statements of ideology, goals, programs . . . signal its good intentions” (Wade 2001, 6). 54. For brief periods, external incentives can serve as an effective substitute for political will; but this is a risky, often unsustainable strategy, highly contingent on the emergence of internal leadership. In 1993, a U.S. General Accounting Office report criticized the disbursement of USAID funds for projects where the “will” to embark on institutional reform was not present. In response, USAID contended that such projects actually could contribute to developing a consensus for reform (GAO 1993a, 1993b). 55. Because every development project involves a consultation component, and because often projects do not materialize or the input from consultations does not inform the design, potential local constituencies may not bother to participate in consultations. 56. Countries that have undergone reforms have realized a reduced case backlog, improved management systems for administration and finance, and somewhat improved professional competence. See, generally, Dakolias (1999). 57. Despite the higher salaries judges enjoy in countries that have undergone significant technical reforms, corruption continues to be a problem in recipient countries and elsewhere. 58. The judicial system in Singapore consistently ranks high in The World Competitiveness Yearbook, an annual publication of the Institute for Management and Development (IMD). For example, in the 1998 Yearbook, Singapore ranked fourth of forty-six countries in a study on confidence in the fair administration of justice. And the Washington-based Cato Institute and the Canadian Fraser Institute gave the Singapore judiciary a perfect 10 for its contributions to maintaining the rule of law and to maintaining competitiveness and economic freedom in the country (see Subordinate Courts of Singapore 2000). Although Singapore’s judiciary ranks very high in efficiency and the economic dividends it reaps from that efficiency, many allege that it does not do as well in terms of judicial independence in human rights cases. Still, the cases where independence arguably is compromised constitute

374 Erik G. Jensen a very small portion of the overall caseload. Public opinion polls on the courts and the police in Singapore are extraordinarily favorable. The Singapore example illustrates the need for a differentiated critique by case type of performance within a legal system. 59. In one district court in Nepal, for example, a total of only five cases came before it in one year. See Jensen, Moog, and Kardar (2001). 60. A third reason for the reluctance to invest in legal education may stem from the pre–rule of law era, in which studies in developing countries showed that the economic returns on primary education are higher than the returns on tertiary education. 61. In a telephone conversation with the author in April 2001. Also see Galanter, Goonesekere, and Twining (1996). 62. The role of the judiciary vis-à-vis corruption has two primary dimensions: one is corruption within the judiciary; the other is the judiciary’s ability to address corruption in other branches of political administration. Bob Klitgaard (1991) developed a formula to show the impact of institutional characteristics that encourage corruption: M (monopoly) ⫹ D (discretion) ⫺ T (transparency) ⫽ C (corruption). Based on these criteria, judiciaries are well suited to corruption. For the most part, they are monopolies; they have a large amount of discretion in their decisionmaking authority; and they have low levels of transparency. Per force if judiciaries are corrupt or corruptible either systemically or pervasively, they are not suited to the task of rooting out corruption in other government institutions. 63. Actually, the Court began to publish its decisions on the Net after the project ended. This illustrates the problem of evaluating short-term projects from which unintended but important consequences may yet emerge. Project closeout and evaluation usually take place before longer-term impacts manifest. The Venezuela case also illustrates the inherent problem of understanding the causal linkages between project inputs and reforms (see Jensen with Unterman 2002). That the Internet is a low-cost means of getting information out to the public is a fact that is not lost on donors. With USAID funding, The Asia Foundation is supporting an Indonesian NGO, Hukum On Line, that posts decisions of the Indonesia Supreme Court on the Net. And the ADB now explores this information outlet as a matter of course. 64. Some would even contest the value of publishing judicial decisions on the grounds that access in this instance simply is not meaningful. In systems with no judicial review or case law, it may be that other data about judicial performance would be more useful for the public to form an idea about the degree to which the judiciary is functioning effectively. 65. The common perceptions and supply-side solutions prominent among judiciaries fit very well with the philosophy that seems to underlie many donor programs, particularly those of the MDBs: make large loans, and that will fix the problem. In Pakistan, the data show that cost, not delay, is the most significant barrier to the access to justice for the poor (see Nelson and Jensen 2001). 66. Also see Hensler (2000a, 2000b). 67. For example, fewer than 10 percent of cases filed go to trial at the federal

The Rule of Law and Judicial Reform 375 level; fewer than 3 percent of cases filed go to trial in California; and fewer than 2 percent of cases go to trial in Los Angeles. 68. Among many other things, the research demonstrated the importance of data and the limits of received wisdom. 69. After reviewing, among other things, the RAND study of civil litigation in the United States (Kakalik et al. 1996) and survey instruments from around the world, The Asia Foundation, with support for various endeavors from the Hewlett Foundation, the ADB, USAID, and the U.S. government, designed qualitative and quantitative dispute-mapping instruments to ascertain dispute resolution needs. Among the objectives of this dispute-mapping approach are the following: to identify the frequency, nature, and severity of disputes; to identify actions taken in response to various types of disputes and problems; to assess public demand for dispute resolution mechanisms so that the sequential path for a reform agenda dovetails closely with that demand; to ascertain citizens’ confidence in, and satisfaction with, various dispute settlement procedures; to identify sources of information about key dispute resolution mechanisms; to identify and measure citizens’ perceptions of justice and injustice with respect to both substantive issues and dispute resolution procedures; and to determine motivations for taking action or avoiding action in various dispute forums. 70. Galanter and Krishnan (Chapter 3) show that litigants’ motivations in accessing the courts can be very mixed. For example, in India, lower courts often are not effective tools for those seeking justice; instead they are useful tools for delaying justice—to postpone the payment of taxes or debts, to forestall eviction, to harass the opposing party (countersuits or ancillary litigation), or, generally, to maintain the status quo. This situation can lead to perverse incentives, where those who have strong cases want to settle quickly and those with weaker cases tend to prolong the process (see also Nelson 2002). 71. Cost-benefit analyses of proposed programs are useful, in part, in answering this question: could resources spent on legal and judicial reform be better spent elsewhere on improving governance? The traditional rhetoric of lawyers and judges conceives of all legal activities as a public good “that once produced benefits a wide range of consumers whether or not they have paid for it” (Peña, Chapter 7). The market, then, would not be a suitable mechanism for providing legal and judicial services because people would lack incentives to pay for the service; that is, they would wait for others to pay for it. The mainstream model is that justice is a public good delivered by officials paid by the state, financed by taxpayers, and with no apparent pricing barriers to access those services. However, an examination of the empirical evidence in many civil and most commercial cases shows that justice does not constitute a public good. As Rick Messick (1999) points out, the analysis about the extent to which adjudication can be viewed as a private good is informed by Landes and Posner’s seminal work, “Adjudication as a Private Good” (1979). 72. Mediation methods range from evaluative (the mediator suggests a resolution) to facilitative (the mediator helps the parties find a resolution but does not offer a resolution) to transformative (the resolution is less important than the parties’ gaining new understanding and developing new skills to deal with the problem).

376 Erik G. Jensen 73. For an excellent empirical case study on this, see Pinheiro and Cabral (1998). 74. For an excellent general discussion of the problems related to evaluation and impact, see Carothers (1999, 281–302). 75. On the difficulty of comparing legal officers, actors, and institutions across different sociocultural and historical contexts, see Abel and Lewis (1995); and Barcelo and Cramton (1999). 76. Although beyond the scope of this paper, all currently available instruments that construct aggregate measures of the rule of law and effective governance—for example, those developed by the World Bank, Freedom House, Transparency International, the U.S. Office of Management and Budget, the UNDP, the EU, and others—have empirical limitations. And the utility of most of these instruments for establishing baselines is limited.

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378 Erik G. Jensen Geertz, Clifford. 1983. Local knowledge. New York: Basic Books. Hammergren, Linn. 1998. Judicial training and justice reform. Washington, D.C.: USAID. ———. 2002. Do judicial councils further judicial reform? Lessons from Latin America. Washington, D.C.: Carnegie Endowment for International Peace. Hammergren, Linn, Ana Laura Magaloni, Layda Negrete, Alfredo Ramírez, and Rosario Téllez. 2002. The Jucio Ejecutivo Mercantil in the federal district courts of Mexico: A study of the uses and users of justice and their implications for judicial reform. Washington, D.C. World Bank. Helfer, Laurence R. 2002. Overlegalizing human rights: International relations theory and the Commonwealth Caribbean backlash against human rights regimes. Columbia Law Review 102: 1832 –1911. Hellman, Joel. 1998. Winners take all. World Politics 50, no. 2: 203 –34. Helmke, Gretchen. 2002. The logic of strategic defection: Insecure tenure and judicial decision-making in Argentina under dictatorship and democracy. American Political Science Review 96: 291-303. Hensler, Deborah. 2000a. Our courts, ourselves: The transformation of the justice system in the United States. Paper presented December 12 at Yale Law School, New Haven, Conn. ———. 2000b. Presentation delivered February 7 at the Rule of Law Workshop, Stanford Law School, Stanford, Calif. ———. 2001. The contribution of judicial reform to the rule of law. Paper presented May 10 at the World Bank Conference on New Approaches for Meeting the Demand for Justice, Mexico City. Huntington, Samuel. 1968. Political order in changing societies. New Haven, Conn.: Yale University Press. Institute for Management and Development (IMD). 1998. The world competitiveness yearbook. Lausanne, Switzerland. Jensen, Erik. 2002. Context for judicial independence programs: Improving diagnostics, developing enabling environments, and building economic constituencies. In Guidance for promoting judicial independence and impartiality, 176 – 88. Washington, D.C.: USAID. Available at www.usaid.gov/democracy/pdfs/pnacm007 .pdf. Jensen, Erik, and Sabina Alkire. 1999. Meaningful participation or deliberative deception: Realities and dilemmas in legitimating legal and judicial reform projects through consultative processes. Paper presented November 4 at the World Bank’s Lawyers’ Forum, Washington, D.C. Jensen, Erik, Robert Moog, and Shahid Kardar. 2001. Understanding and reforming the Nepalese legal system. San Francisco: The Asia Foundation. Jensen, Erik, with Kate Unterman. 2002. Evaluation of the World Bank funded Supreme Court Modernization Project in Venezuela. Ve 4270. Washington, D.C.: World Bank. Johnston, Michael, and Sahr J. Kpundeh. 2001. Building a clean machine: Anticorruption coalitions and sustainable reform. Washington, D.C.: World Bank. Available at www.worldbank.org/wbi/publications/wbi3708.pdf.

The Rule of Law and Judicial Reform 379 Kakalik, James, T. Dunworth, L. Hill, D. McCaffrey, M. Oshiro, N. Pace, and M. Vaiana. 1996. Just, speedy, and inexpensive? An evaluation of judicial case management under the CJRA. Research Brief (Institute for Civil Justice, Rand Corporation). Available at www.rand.org/publications/MR/MR8001. Klarman, Michael J. 1998. What’s so great about constitutionalism? Northwestern University Law Review 93: 145, 176 –78. ———. 2001. The white primary rulings: A case study in the consequences of Supreme Court decisionmaking. Florida State University Law Review 29: 55 –107. ———. 2002. Is the Supreme Court sometimes irrelevant? Race and the Southern criminal justice system in the 1940s. Journal of American History 89: 119 –53. Klitgaard, Bob. 1991. Controlling corruption. Berkeley: University of California Press. Klug, Heinz. 2000. Constituting democracy: Law, globalism, and South Africa’s political reconstruction. Cambridge, England: Cambridge University Press. Krasner, Steve. 1999. Sovereignty: Organized hypocrisy. Princeton, N.J.: Princeton University Press. Landes, William, and Richard Posner. 1979. Adjudication as a private good. Journal of Legal Studies 8: 235 – 84. Lawyers Committee for Human Rights. 2000. Building on quicksand: The collapse of the World Bank’s Judicial Reform Project in Peru. Lawyers Committee paper. New York. Lawyers Committee for Human Rights and Venezuelan Program for Human Rights Education and Action. 1996. Halfway to reform: The World Bank and the Venezuelan justice system. Joint report. New York. MacMillan, John, and Christopher Woodruff. 2000. Private order under dysfunctional public order. Unpublished manuscript. Available at faculty-gsb.stanford .edu/mcmillan/personal/PDF%20papers/private%20order%20under%20dysfunc tional%20Public%20order.pdf. McClymont, Mary, and Steve Golub. 2000. Many roads to justice: The law related work of the Ford Foundation grantees around the world. New York: Ford Foundation. Merryman, John. 2000a. Law and development memoirs I: The Chile Law Program. American Journal of Comparative Law 48: 481–99. ———. 2000b. Law and development memoirs II: SLADE. American Journal of Comparative Law 48: 713 –27. Messick, Richard.1999. Judicial reform and economic development: A survey of the issues. World Bank Research Observer 14: 117–36. Moog, Robert. 1997. Whose interests are supreme? Organizational politics in the civil courts in India. Ann Arbor, Mich.: Association for Asian Studies. Narayan, Deepa, and Patti Petesch, eds. 2002. Voices of the poor from many lands. Washington, D.C. and New York: World Bank and Oxford University Press. Available at www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2002/03/ 01/000094946_02021604090737/Rendered/PDF/multi0page.pdf. Nelson, Matthew J. 2002. Property, politics, and preferences in the Punjab, 1849 –1999. Ph.D. diss., Department of Political Science, Columbia University. New York. Nelson, Matthew J., and Erik Jensen. 2001. Supporting access to justice under the local

380 Erik G. Jensen government plan: Small scale technical assistance. SSTA 3640-PAK. Islamabad, Pakistan: The Asia Foundation. North, Douglass. 1990. Institutions, institutional change, and economic performance. Cambridge, England: Cambridge University Press. Olson, Mancur, Jr. 1965. The logic of collective action. Cambridge, Mass.: Harvard University Press. Packenham, Robert. 1973. Liberal America and the Third World: Political development ideas in foreign aid and social science. Princeton, N.J.: Princeton University Press. Pastor, Santos. 1993. ¡Ah de la justicia!: Politica judicial y economia. Madrid: Civitas & Ministerio de Justicia. Peerenboom, Randall. 2002. Let one hundred flowers bloom, one hundred schools contend: Debating the rule of law in China. Michigan Journal of International Law 23: 472 –544. Peréz-Perdomo, Rogelio. 2003. Lawyers in late 20th century Latin America. In Reorganization and resistance: Legal professions confront a changing world, edited by W. Felstiner. Oxford: Hart. Pinheiro, Armando Castelar, and Celia Cabral. 1998. Credit markets in Brazil: The role of judicial enforcement and other institutions. Rio de Janeiro: Brazilian Development Bank. Available at www.bndes.gov.br/english/studies.asp. The politics of human rights. 2001. Economist, August 18, 9. Posner, Richard. 2003. Law, pragmatism, and democracy. Cambridge, Mass.: Harvard University Press. Powell, Walter, and Paul DiMaggio, eds. 1991. The new institutionalism in organizational analysis. Chicago: University of Chicago Press. Radin, Margaret Jane. 1989. Reconsidering the rule of law. Boston University Law Review 69: 781, 791. Rosenberg, Gerald N. 1991. The hollow hope: Can courts bring about social change? Chicago: University of Chicago Press. ———. 1992. Judicial independence and the reality of political power. Review of Politics 54: 369 –99. Sachs, Jeffery. 1998. Making it work. Economist, September 12. Scott, W. Richard. 2001. Institutions and organizations. 2d ed. Thousand Oaks, Calif.: Sage. Shapiro, Fred R. (1996). The most-cited law review articles revisited. Chicago–Kent Law Review 71: 751–79. Steelman, David C. 2000. Caseflow management: The heart of court management in the new millennium. Williamsburg, Va.: National Center for State Courts. Stephenson, Matthew C. 2003. When the devil turns . . . : The political foundations of independent judicial review. Journal of Legal Studies 32: 58 –59. Subordinate courts of Singapore, judiciary and legal institutions score a perfect ten. 2000. Judicare, May. Available at www.gov.sg/judiciary/subct/info/judimay.pdf. Tamanaha, Brian. 1995. The lessons of law-and-development studies. American Journal of International Law 89: 470 – 86. Tobin, Robert W. 1998. Creating the judicial branch: The unfinished reform. Williamsburg, Va.: National Center for State Courts.

The Rule of Law and Judicial Reform 381 Trubeck, David, and Marc Galanter. 1974. Scholars in self-estrangement: Some reflections on the crisis in law and development studies in the United States. Wisconsin Law Review. U.S. General Accounting Office (GAO). 1993a. Comments on the GAO draft report—Foreign assistance promoting judicial reform to strengthen democracies. Report to congressional requesters. GAO/NSAID-93-149. Available at www.gao.gov. ———. 1993b. Foreign assistance: Promoting judicial reform to strengthen democracies. Washington, D.C. ———. 2001. Former Soviet Union: U.S. rule of law assistance has had limited impact and sustainability. Washington, D.C. Varshney, Ashutosh. 1995. Democracy, development, and the countryside: Urban–rural struggles in India. New York: Cambridge University Press. Wade, Robert. 2001. International institutions and North/South conflict. Paper presented August 28 –30 at the American Political Science Association Annual Meeting, San Francisco. Available at pro.harvard.edu/papers/017/017019/ WodeRobert.pdf. West, Robin. Forthcoming. Rethinking the rule of law. Williamson, John. 2000. What should the World Bank think about the Washington Consensus? World Bank Research Observer 15, no. 2: 251– 64. Willis, Paul. 1981. Learning to labour: How working class kids get working class jobs. New York: Columbia University Press. World Bank. 2001a. Initiatives in legal and judicial reform. Washington, D.C. Available at www4.worldbank.org/legal/publications/initatives-final.pdf. ———. 2001b. The rule of law central to fighting poverty, World Bank president calls on governments to recognize the link between law and development. Press release, July 9. Available at www4.worldbank.org/legal/legalr. ———. 2002a. Sourcebook on access to justice. World Bank Empowerment Retreat, May 7– 8. Available at www1.worldbank.org/publicsector/legal/sourcebook .pdf. ———. 2002b. Sourcebook on access to justice and the market for legal services. World Bank Workshop, June 18. Available at www1.worldbank.org/publicsector/ legal/sourcebookMarket.doc. Zuckerman, Adrian, ed. 1999. Civil justice in crisis: Comparative perspectives of civil procedure. New York: Oxford University Press.

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11

An Immodest Postscript

thomas c. heller

we have summarized our study with a modesty that befits the absence of an adequate theoretical or empirical grounding for much of what is considered common knowledge and common practice in the field of rule of law. Now we conclude with an immodest postscript that is meant more to provoke than to define a certain path ahead. The postscript builds from our core ideas about thick and thin definitions of the rule of law, the standard package of reforms, and judicial centrism to suggest in a more controversial tone the possible extension of these concepts to future reform programs. We shall stress that the interaction between development theory and law has led to a particular thickening in the operative meaning of rule of law and that, when considered systematically in relation to four functions of law arising from development theory,1 the rule-of-law record still looks highly uneven. We argue that to go beyond this uneven performance, it may be necessary to abandon what has been a cardinal strategy of rule-of-law activity: to give political priority to programs that are locally owned by leading actors in host-country legal systems. Urging an increased focus on the complex relationships between law and different systems of political economy, the provocation centers around three linked propositions. First, the legal cultures that inform the norms and expectations of legal actors usually have evolved under organizations of state and society at odds with those implicit in rule-oflaw reform. It may be more realistic to displace these habits and interests in new rather than existing legal institutions. Second, although it is almost universally assumed that law services should be organized through public monopolies, the same principles of competition that underlie market-centered economies generally should be accorded greater weight in reordering the provision of law. Third, governance through law is normally only one element in a wider portfolio of substitutable mechanisms for the various func-

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tions development requires. Those who design, fund, and implement ruleof-law activity should understand that law services are a scarce resource that should be used where other public and private substitutes are relatively less effective. That understanding may lead programs to become less judicial centric and prone to place inflated demands on courts and the law that result in only formal, ineffective, and delegitimating change. The rule-of-law movement, especially as practiced in developing countries, is now old enough to divide its history into successive waves. Beginning after World War II with efforts to create national legal systems that would displace colonial and customary legal regimes, commitment to ruleof-law ideals underlay the law and development movement of the 1960s, the campaigns for human rights and constitutional protections of the 1970s and 1980s, and the crusade to build the institutional foundations of market economies that has marked the years since the crumbling of the Communist bloc. Today, an expansive rule-of-law agenda not only contains the accreted residues of these earlier missions, but also looks toward tying law to new development goals such as relieving poverty, sustaining development, and conserving social capital. Throughout this half-century, there has been ongoing, if sporadic, reexamination of the motivations, theory, and effectiveness of rule-of-law activities. At the close of our contribution to this continuing evaluation, we discuss explicitly how the evolution of overlapping, though independent, analyses of law, democracy, and economic development across this period has recharacterized the relationship among them and suggest directions that might improve the spotty record of effectiveness of rule-of-law assistance to this point. In so doing, we keep in mind two important lessons our experience has hopefully taught. First, any theory of the rule of law must be situated within associated theories of political economy in which different legal institutions play greater or lesser roles. Second, although we don’t hesitate to point out the evident gaps between the claims and aspirations of rule-of-law programs and their actual impacts on social and economic life, the rule-of-law record is not notably worse—in fact, it may well be better— than the larger mass of nonlaw development assistance that has recently been the object of sharp and comprehensive criticism (Easterly 2001, 21–139). Before parceling out blame or credit for the rule-of-law record, we might remind ourselves that law reform is a never-ending process with a history that long precedes its more recent forms. All legal traditions include selfmonitoring mechanisms that challenge the particular state of legal doctrine or practice at a given time. Either through judicial precedent or scholarly treatise, legal systems have a memory, a store of contested arguments and rulings, as well as (temporarily) discarded losing opinions, that resolve disputes over the interpretation of the law.2 The inbuilt process of internal scanning and self-initiated revision frequently has been complemented by exter-

384 Thomas C. Heller nally imposed law reforms. Within the civil law tradition, the modern structure of codified law initially was diffused as much by Napoleonic power as by the force of its doctrinal persuasiveness. The spread across the globe of both civil and common law institutions was primarily an artifact of colonialism, with India providing perhaps the most egregious example of domination justified by careful tutelage in, and implanting of, the very British legal norms and organizations that ultimately undercut the Raj. Law also has become a symbolic currency of modernity. The number of developing nations with up-to-date securities rules, constitutional protections of environmental quality or gender equality, and a full arsenal of human rights treaty commitments far exceeds the number of states where these privileges or services are enjoyed (Meyer et al. 1997; Ramirez and Meyer 1998). Incentives and conditionalities for law reform have been a staple of multilateral banks (MDBs) and regional integrators like the European Union or the North American Free Trade Agreement (NAFTA). In these regional groups and in the more open markets of a World Trade Organization– shaped international economy, regulatory competition between polities trying to attract foreign investment adds to the list of drivers of legal change. It is not enough to appraise rule-of-law programs and their impact independently of these older and more recent sources of legal dynamics. Despite the complex history of law reform that influences the rule-of-law movement, our analysis points to a limited set of objects and modalities of reform that impose a relatively uniform pattern on rule-of-law activities. If we think of the legal system as a body composed of rules, statutes, and regulations; of adjudicative forums (usually courts) and their professional and administrative complements; of law schools; of the media that define and diffuse legal culture; and of the wider context of governance institutions that frame the scope and relative authority of legal authorities—then the emphasis of rule-of-law reform has been on the first two elements. The most frequent external support has focused on court administration, judicial training, and bar association assistance. Although rule-of-law programs have explored some common ground with internal-security and democracy consolidation (electoral reforms) projects, the enormous preponderance of activity beyond statutory or constitutional drafting is directed at building up the capacity of courts and lawyers to substitute adjudication for administration and to manage the increased flows of new economic and constitutional demands expected to arise from privatization, marketization, and democratization. The rule of law remains principally about improving the quantity (number and productivity) and quality (autonomy, pay scales, skills) of a largely existing court system under the partially articulated theory that wellfunctioning legal institutions are essential to markets and democracy, and that these, in turn, define the possibilities of successful development. Before

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we turn to a discussion of the effectiveness of this standard rule-of-law package, it may be useful to recall the evolving relationship between law and development, which helps explain the stable centrality and character of judicial and bar reform programs in the rule-of-law agenda.

The Law in Development Theory high development theory Early theories of development gave short, if any, shrift to law and legal institutions. They were oriented instead to an evolutionary sociology of normative change and to an applied economics of technical manipulations. The initial axis of modernization theory was to contrast the values associated with traditional societies—ascriptive status, social hierarchy, fatalism, and foundational metaphysics—with the norms espoused by emergent elites, primarily in nations escaping colonialism, which emphasized achievement, individualism, secularism, and scientific rationality (see Banfield 1958; and McClelland 1961). Positive accounts of the 1950s and 1960s chronicled the diffusion of these modern attitudes while normative theory detailed how to prevent cultural backsliding. But there was little hard questioning of the inexorability of the displacement of the old cultural constellations by the more recent. Modernity, once introduced by contact with external systems, was a process in which social, political, and, above all, economic development was the product of a virtuous circle. Increasing wealth and opportunity were in themselves the evidence that progressively discredited the claims of inescapable stasis that had hitherto justified adherence to the traditional orders. On the foundation of this quasi-teleology, a structure of associated propositions, or beliefs, was erected to constitute a broader political economy that Paul Krugman called “high development theory” (Vines 2001, 136). Government was seen as a beneficent social agent through which modernizing elites exercised their technical competence to mobilize finance, channel or subsidize private investment, and provide basic industry and infrastructure to ensure urbanized manufacturing would spread and absorb newly freed agricultural labor. Although debate rapidly proliferated about whether the technical expertise of the development state was better exercised through balanced (“big push”) or unbalanced growth, there was broad consensus that financial and physical capital were the drivers of economic expansion and that the domestic market, not international trade, was the linchpin of institutional reform (Meier 2001, 13 –17). Nowhere in this first stage of development theory, economic or sociological, was there a focus on either democracy or law. As often as not, they were seen as barriers to modernization’s progress. Inasmuch as capital accu-

386 Thomas C. Heller mulation was essential to economic growth, democratic politics were neither positively associated with successful reform nor theoretically advisable (Adelman and Morris 1967, 173 –263). To the extent that populist politics threatened to redistribute capital away from those most likely to save and reinvest to those with immediate consumption needs, democracy was understood as more an eventual product of middle-class expansion because of development than its precursor or cause (Huntington 1968; Lipset 1960). The role of law was seen variably, though never centrally, in different regions. In Africa, for example, where no serious development of a national professional class had occurred under colonialism, the primary focus of legal activity was on erasing traditional or customary legal systems and institutions. The forms of a modern legal system— constitutions, codes, courts, law schools—were imported wholesale from the ex-colonial power, stamped with national insignia, and left to their own devices. In Latin America and India, where earlier independence and recruitment of locals to the colonial bureaucracy gave rise to a national legal profession, the technocrats saw lawyers and courts as formalists who interfered, whenever possible, with the administrative autonomy needed for economic management. Law and development in these countries was initially as much about disempowering existing legal institutions as it was about educating a new coterie of legal actors who would understand and help implement development policy. The initial manifestations of the rule of law, then, suffered from a double disability that inhibited the growth of a rich or complex theory of the relation among law, democracy, and development. One disability was internal to the legal community itself. The first waves of rule-of-law activity were concerned primarily either with installing the institutional forms of modernity (for example, national courts and codes) to replace the indigenous law associated with traditional authority, or with preventing antidevelopment legal elites from effective disruption of economic policy. Early rule of law wavered between the formalism of installing the symbols of modern law and the instrumentalization of law as no more than the handmaiden of economic administration. The second disability was in the absence of incentives to hypothesize about what might be the independent or causal role of law in either sociological evolution or economic growth. For sociologists of modernity, most familiar with nations in the process of decolonialization and led by metropolitan-trained elites, the dissolution of normative equilibrium was not problematic. There was no demand for theory to investigate how new legal rules might interact with, support, or induce normative change (see Cooter 1996; and Lessig 1996). Moreover, given the assumed automaticity of the modernization process, there was no motive to examine the internal dynamics of transition or the possible effects established institutions might contribute to its disruption. Similarly, little effort was made to understand

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how legal systems functioned under the preexisting colonial or precolonial administrations of developing polities. Whether the installed base of legal institutions was customary law (Africa), imperial rule (East Asia), or authoritarian elitism (Latin America), there was no serious development of Weber’s earlier typologies of law (1992, 352 –70) in non-Western regimes, and, so, no attempt to compare and analyze the place and domain of law in one political-economic system with another. With limited focus on the legal, political, and social variables, development theory through the 1960s was principally a debate over economic policy and instruments. In part because the attention of the research community most often was drawn to development issues in the context of independence movements in Africa, international assistance also concentrated on building economists’ capacity and closing the financial gap between domestic savings and the perceived requirements for capital formation.3 The logic of development assistance was straightforward.4 In the presence of abundant labor, additions to capital were the keys to economic growth. Because national capital formation was limited, foreign aid was needed to supplement the local missing factor. So long as state technocrats guided external capital flows into investments with appropriate social returns, growth theorists were little concerned about law as the institutional basis of markets or as a constitutional guarantor of democratic rights. Instead legal-assistance programs concentrated on regulatory laws (taxes, securities) to facilitate the implementation of economic policy or to block the ability of traditional legal actors to disrupt the state’s administration of capital flows. There is no purpose here in going over the many disillusionments that came to undercut high development theory (Hoff and Stiglitz 2001, 389 – 428). In economic terms, it soon became apparent that physical and financial capital had diminishing returns. Faced with that reality, development theorists amended the initial orthodoxy to emphasize the need for improving first the quality of human capital and then the technology that underlies total economic productivity.5 Since neither public policy theorists nor development aid practitioners had any clear program on how to reform these softer factors, they accepted that growth does not necessarily follow a single path or clear stages of development. At the same time, national markets outside of East Asia became mired in low-level equilibriums, were subject to macroeconomic shocks, and suffered growing damage to their environment and stocks of social capital. Even more telling was the loss of political faith in the skills or goodwill of state actors. Technocracy became enmeshed with military or other antidemocratic regimes that increasingly were seen as predatory, prone to the protectionist and monopolistic policies that attract rent seeking, and willing to violate human rights in support of their own stability. As the combination of stalled economic growth and authoritarian poli-

388 Thomas C. Heller tics in the 1970s delegitimated modernist ideology, it exposed the ground that the rule of law and constitutional democracy would reclaim in a moreexpansive theory of development. law, democracy, and markets The disenchantment with high development theory motivated the reformulation of the idea of development to embrace both law and democracy more directly. On the one hand, widespread and systematic political repression highlighted the depth and stability of the conflict that could emerge between economic growth and the liberties of citizens. Forced to assign a lexical order to freedom and welfare, many analysts began to argue that the guarantee of civil rights could not be sacrificed or put off in the service of finance. On the other hand, the failure of repressive regimes to sustain economic growth and, often, their tendency to retreat into nationalist isolation from world markets led development theorists to recast the sequencing of political and economic reform. Democracy generally had been conceived of as more the eventual by-product of economic growth than its precursor or complement. But now analysts recognized that economic development and democracy often flourished in low-density colonies, like Canada and Australia, where agricultural lands had been distributed to settlers equally. In time came the recognition that in these countries, at least among the nonnative populations, democratic rights did not lead necessarily to extensive redistributive politics that interfered with capital formation. In addition, the process of transition in formerly socialist regimes in Eastern Europe was led by democratic rather than economic reform, calling into question earlier statistical studies that found a negative relationship in developing countries between democratic regimes and economic growth. Empirically, at least, correlations between democracy and growth were not significant in either direction (Przeworski and Limongi 1993). In the 1980s, as bilateral foreign assistance from the United States began to target electoral reforms and the strengthening of political parties and media, economists also rethought the importance of constitutionalism as a foundation of development theory. If strong voting rights were incorporated into constitutional structures, it would be less likely that governments could regularly pursue predatory, self-interested strategies and still remain in office. As long as active judicial organs could credibly protect property rights against populist excesses, equal and effective political rights could remedy the depredations widely experienced in the decomposing socialist and authoritarian states (Olson 2000, 14 –24). The constitutional entwining of law, democracy, and growth was extended in the 1990s through the antielitist theories of democratic politics. As

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state mobilization of political interests in authoritarian regimes—whether through the loss of controlling power by dominant parties or through the weakening of corporatist social organizations—was relaxed, civil society associations were called on to fill the political vacuum (Avritzer 2001). Democratic society would be structured from the bottom up, with pluralistic associations, empowered and defended by the constitution, assuming the tasks of monitoring state behavior and advocating popular demands. In this expanded sense, development theorists came to define democracy as at once a mechanism for economic growth through its restraint of government mismanagement and as a core component of development itself (Sen 1999, 13 –54). While the legal foundations of democracy were being integrated into the development agenda, the tide of economic development theory was turning sharply from public administration and state enterprise to markets and privatization. The quest by economists to understand the microfoundations of such markets afforded the importance of law a second boost up the development ladder. At the beginning of the twentieth century, Max Weber had explored a simple hypothesis: that the modern legal doctrines of property and contract enforced by a politically independent and technically competent judiciary, are the best means of managing the risks of transactions with strangers in comprehensive markets (Rheinstein 1954, 29 –31, 301–21). Douglass North (1990) deepened and extended Weber’s insights on the link between law and development, emphasizing the role constitutions play in ensuring a society’s credible commitments to property rights. North also documented how the gradual evolution of legal concepts such as negotiable instruments, limited-liability corporations, and insurance, allowed complex forms of association and finance to facilitate market flexibility (also see Olson 2000, 174 –95). Economists in the late 1980s and the 1990s, now more attentive to the successful performance of East Asian nations (ADB 1997, 15 –19; World Bank 1993, 1–26), argued that exposure to global competition and export markets was a key discipline for growth. Lawyers expert in the complex contracts associated with project finance, joint ventures, transnational bankruptcies, and international capital markets saw their development stock rise. Specific forms of property relations, including intellectual property and corporate governance, were advocated as necessary attributes of growth through markets. The integration of national legal systems into harmonized international regimes for trade, technology transfer, or commercial arbitration was characterized as essential, if not inevitable, infrastructure for growth. The analysis of microfoundations did not focus extensively on potentially troubling issues (the limited role of legal institutions in the domestic structures of high-growth Asian economies, for example) or

390 Thomas C. Heller work out a sophisticated analysis of transition from existing to desired legal institutions. But it did elevate law and lawyers to a newly prominent, if still theoretical, rank in the development program. Along with the general criticism of high development theory, the earlier phases of international law and development programs were attacked for the formal and ineffectual nature of the legal rules and institutions they created. Even more of these activities were implicated in the conduct of the technocratic regimes they supported (Tamanaha 1995; Trubek and Galanter 1974). Nevertheless, new waves of legal reform in the 1980s and the 1990s around the democracy and microfoundation themes dwarfed the scale of earlier assistance projects. Some American aid, now denoted as rule-of-law programs, focused on the reform of police procedures and the criminal law system that had frequently been abused or ignored by regimes given to political repression and civil violence. With less regularity, smaller amounts were offered for legal services for the poor and for public-interest representation of the rights of indigenous peoples. European-funded programs, which grew rapidly from the mid-1980s, concentrated more on creating specialized constitutional courts with jurisdiction to review administrative excesses, establishing independent audit agencies and ombudsman offices to monitor state behavior and enhance legal redress, designing mechanisms for judicial autonomy and professionalism free of executive controls, and mobilizing nongovernmental organizations (NGOs) to campaign for democratization. In part because of the adherence of most developing nations to the civil law culture transferred by Continental European nations to their colonies, in the overtly political law and democracy field European legal models have had the greater influence. But with regard to the more technical laws and regulations associated with economic microfoundations to frame and encourage market transactions, it has been American rule-of-law programs that have played a larger role in defining and carrying out the agenda. Beginning with extensive aid for court efficiency and administration to better manage the growth in caseloads expected to attend privatization and the substitution of markets for administrative coordination, the reform of economic law, financed both bilaterally and by the MDBs, released a flood of legal experts determined to transfer American legal technologies in securities and capital market, bankruptcy, intellectual property, corporate governance, and foreign investment law.6 a new integration? Despite the greatly inflated attention the rule of law and democracy have acquired in development theory since the 1950s, newer developments in economic and political thinking have yet to be reflected in an integrated account of democracy, development, and the rule of law. First, current devel-

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opment theory calls for public institutions to go beyond minimalist programs of market framing. Economic analysis now relates inadequacies in the performance and growth of markets to failures of coordination between private actors (Hoff and Stiglitz 2001). Private investment, especially when it involves multiperiod returns, often requires complementary investment by other businesses or by government agents to increase the prospect of adequate returns. If an investor cannot count on that complementary activity, it is more rational to choose projects with shorter-term and moreindependent expected income streams or to relocate to jurisdictions where these complementary activities are established. Lack of coordination between private actors cannot be remedied by contract law alone if the problem is the absence of contracting partners in the first place. Issues of coordination harken back to some of the early development theorizing (big push or unbalanced growth), which proposed state remedies that would now be thought of as solutions to information problems. A second constraint on the integration of law, democracy, and development is the current emphasis in development economics on poverty relief rather than aggregate growth. Where the alleviation of extreme poverty is counted as a principal axis of development, the evaluation of public interventions in markets may shift. Moreover, income or asset redistribution that equalizes opportunities for education or women’s employment may have disparate and beneficial impact on the growth of social welfare that is as yet not expressed in the standard economics of law and development (Kanbur and Squire 2001, 183 –226). There is an emerging conflict between programs to limit the government predation and abuse that remain at the core of the minimalist rule-of-law agenda, and the inabilities, recognized by new economic learning about coordination and equity, of private well-structured markets to realize potential growth. How a state’s constitution and laws should balance these tensions may depend on periodic cycles of political experience and judgment about the trade-offs between the aspiration to design the ideal legal institutions mandated by theory and the aversion in practice to the risks posed by governments empowered to carry out these subtle and complex functions. The third impediment to an integrated rule-of-law theory comes from the absence of a politics of accountable and deliberative democracy. Just as current rule-of-law programs reflect more orthodox economic development theory, they also lag behind the latest shift in democratic theorizing. Political analysis of advanced democracies increasingly is focused on the conditions and structures that foster an active performance of citizenship; the quality of deliberative processes in an informed public sphere; and more reliance on transparent and decentralized governance initiatives that operate under negotiated standards, accountability mechanisms, and marketlike

392 Thomas C. Heller incentives (Cohen and Fung 1996; Habermas 1981). Even when rules flow downward from democratically elected legislatures or from administrative agencies acting under the legal delegation of legislative powers and in consultation with civil society, there is a growing perception that this model of government elicits neither innovative solutions nor the widespread participation of engaged citizens. Newer images of democratic political institutions substitute a combination of more-competitive production of public goods and more-cooperative models of information exchange and learning, for time-honored notions of sovereignty and the periodic election of those who exercise it. These newer images are reminiscent of “soft-law” techniques discussed in reference to international legal regimes. But they are not yet reflected in the analysis of the rule-of-law reforms of national systems where assistance programs for constitutional, legal, and political rights are directed. Like the economic theorizing about development, rule-of-law programs trail behind the leading edge of democratic thinking. Although the rule of law has moved from the far periphery toward the center of development concerns, it remains grounded in a political-economic agenda that echoes more-classical moments of those related disciplines. Even if we accept that the political economy at which rule-of-law reform is targeted is more orthodox than frontier, the connection between the rule of law and the political economy of development is still inadequate in a profound sense. The goals of rule-of-law assistance are consistent with a set of functions that expresses fundamental elements of a market-based economy and a democratic polity. Among these new or enhanced functions assigned by development theory to courts and legal professionals are • an increased capacity to manage the growth in private disputes expected to arise from the augmented substitution of private markets for public administration. • the design and implementation of complex contracts and financial instruments that have become standard practice in advanced industrial and service economies. • a willingness to patrol the governmental separation of powers and exert checks over those administrative functions that remain in the executive branch as the domain of administrative governance is reduced relative to the sphere organized through private markets. • the aggressive enforcement of constitutional and political rights to protect citizens from repression by other agencies of government or their surrogates. It is reasonably easy to articulate the political-economic needs of a reformed legal system. What is absent in the rule of law–development theory nexus is a particularized account of either the preexisting roles and struc-

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tures of legal institutions in the political economies that are the objects of reform, or the dynamics of transition that will affect the processes and prospects of effective change. We might argue, then, that rule-of-law programs posit a set of clear objectives but leave obscure both the theory explaining the frictions that change ignites and the methods of reducing them. It is as if rule-of-law goals are fed into a black box whose hidden workings give little guidance about whether effective reform will emerge. What sorts of investigation would opening the black box suggest? The process must begin with an examination of the traditional roles and functions of actors and institutions in established legal systems. Almost all legal systems that are the object of rule-of-law reform today have for decades, if not centuries, constituted the authority of courts and lawyers within their political organization. What distinguishes the familiar from the desired are the relative positions and expectations these legal actors have been assigned or assumed vis-à-vis other public and private institutions in any given political economy. Although there may be newer functions called for by ruleof-law programs that courts and lawyers have not been asked to perform in the preexisting systems, it is wrong to assume that legal actors do not carry out adequately and with a pride of accomplishment other legal functions that are well adapted to the political economy in those systems. Without a better understanding of the adaptiveness or fit of legal agents to the varied political economies in which they have evolved, it is impossible to appraise the structures or self-representations with which legal actors approach contested reforms. A second focus of investigation must be the analysis of legal culture. Legal systems insist on the recognition of their autonomy from other state organs. The domain in which they assert this autonomy may differ from one political economy to another, but the self-organization of the legal realm always results in the relatively independent development of legal theory and process that does not immediately or directly mirror what transpires in other dimensions of the social system (Teubner 1989, 21–36). Legal institutions have their own momentum that does not respond easily even to powerful ideological and structural forces like globalization, the turn away from planning toward markets, or privatization. Resistance to the automatic translation of structural forces into the internal operations of the legal system is normal, regardless of the compelling logic of either growth or democracy. Finally, beyond adaptation and autonomy, there is the question of incentives. In the actual dynamic of political-economic transitions there must be incentives for legal actors to abandon or even disturb familiar and longlegitimated forms of knowledge and practice. Without those incentives, there are no sufficient coalitions to support sustainable change. Funded ruleof-law assistance will likely alter conduct, or the appearance of conduct, at

394 Thomas C. Heller the margin. But as the experience recounted in this volume makes clear, the incentives for established institutions and those who populate them to tear themselves from positions of power and comfort in the old order often are not obvious. Without a detailed theory that positions the legal system in traditional and modern political economies and provides the context in which the legal system has independently charted its own self-representations, it is almost impossible to design strategies or tactics to move the system toward the four functions ( judicial capacity, complex contracts, separation of powers, constitutional protection) that orient rule-of-law programs. Similarly, without consideration of how legal theory and practice have evolved into a differentiated legal culture in a specific national context, it is also unlikely that reforms will be more than a formal symbol that attracts foreign funds and changes little. Instead, it is only when the actors internal to a legal culture are receptive to alteration and when threats to the continuity of the established system become salient that reform is more likely to take hold.

The Rule-of-Law Record: Elements and Analysis Existing rule-of-law programs can be grouped into two broad categories: building the capacity of the judiciary and establishing institutions that define and protect constitutional rights. The former area has been largely the domain of U.S. assistance programs; the latter has been influenced more by European models and funds. This simple classification rides too easily over issues that cut across the two domains—for example, reworking the legal and political relationships between courts and executive or administrative agencies, and expanding legal services and civil society activities. But judicial capacity and constitutional rights are particularly apt categories when we consider where international rule-of-law programs have had the greatest impact, or when we look for shorthand language to encompass the core assumptions of rule-of-law programs. In this sense, we might summarily argue that most rule-of-law programs aimed at increasing judicial capacity assume that privatization and the replacement of planning by markets will strain an already overloaded court system, and that law or legal controls must substitute for a retreating and somewhat delegitimated administration. The roles prescribed for judges (and lawyers) are expected to grow inversely as state intervention in the economy declines and as decision processes in the remaining areas where the state exercises power are made more accessible to nonstate actors. Building judicial capacity involves improving the performance of old and familiar court functions in civil and criminal law, and the addition of new functions principally associated with complex contractual and financial transactions in national and global markets. The redis-

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tribution of state power has a similar effect on constitutional rights. The definition and enforcement of constitutional rights protect the economic civil rights individuals enjoy in a less-regulated domain and disable the continuing exercise of arbitrary governmental powers to abuse basic liberties. In this context, then, constitutional issues also are connected to an altered division of authority within the government (separation of powers), the redefinition of the boundaries between the state and civil society, and the scope of the judiciary’s involvement in initiating social change. judicial capacity Stories of case backlogs and interminable legal processes are legion in both civil and criminal courts in much of the developing world. Delay and arbitrary or unexplained rulings are said to undercut popular confidence in judicial institutions and to undermine general reliance on property rights and contracts in structuring economic relations. In spite of these stories, judicial malpractice is never easy to define. Most courts deal with relatively simple contractual matters or the odd family disputes that bubble up out of the informal networks—religious, social, or communal—that normally manage these matters. The majority of these cases everywhere are settled, with or without judicial intervention or legal recognition of the result. Other commercial cases may sort out through interlocutory orders that determine which party has use of contested resources even as the litigation long remains open on the books. Consequently, final judicial disposition of cases is best understood as one means of filling in incomplete contracts or defining specific rights in property that competes with and complements better legal drafting, administrative regulation, more detailed contracting, external mediation, and court procedures that suggest likely points of settlement. Yet although we do not have a well-ordered sense of what constitutes a baseline of efficient dispute resolution against which we can measure the incremental value of improving the judiciary, most rule-of-law activities take as their primary focus the quantity and quality of the civil courts. Because international assistance rarely supports ongoing expenditures, judicial reform programs focus on increasing productivity by improving facilities or organizational learning more than on enhancing salaries or regular court budgets. Case management and docket administration techniques, computerization, and training are regular components of reform programs. All have been designed, implemented, and lauded by providers and participants for their contribution to the day-to-day ability of judges and judicial administrators to increase system throughput of routine litigation. If ruleof-law aid has produced more and better-paid judges, it is usually because judicial autonomy reforms (discussed below) have increased the resources available to the judicial branch by means of mandatory earmarking of pub-

396 Thomas C. Heller lic funds. Beyond quantitative improvements in judicial productivity, ruleof-law programs have seldom led to qualitative shifts in civil procedure that might influence the type or character of cases brought before the civil courts. The record of implemented reforms in litigants’ standing, class actions, expansion of remedies, the reduction of filing costs, lawyers’ contingency fees, or facilitated discovery—variables that could make litigation more affordable and innovative—is thin. Private suits that are not dependent on publicagency actions in securities or competition law remain barred or effectively hindered by restrictive procedural practices like those just listed. The principal exception to this generalization is the introduction of oral trials and some plea bargaining in criminal procedure, practices intended to relieve clogged courts and crowded jails (see Chapter 7). Along with productivity gains in the administration of standard civil cases, these penal process reforms constitute a second instance of rule-of-law program success. Rule-of-law reform has played an active role in building specialized judicial capacity in developing countries in litigation and arbitration involving complex contracts, organizations, and financings. In these areas, where the practice of law often is dominated by multinational law firms and supported by associations that represent professional interests (like the American Bar Association), rule-of-law assistance usually targets the drafting of statutes and regulations in areas relatively uncharted by classical codes or common law precedents, and the establishment of courts of expert, and usually exclusive, jurisdiction in those areas. These courts offer niche solutions to business problems that avoid the lack of capacity and organizational rigidities of the general courts. Less encumbered by the legacy of traditional civil procedures than general courts, new limited-competence courts and special-jurisdiction judges in commercial law, bankruptcy, intellectual property, consumer issues, or special export zones are better able to borrow from or piece together innovative practices—like oral trials or the incorporation of lay experts— from sources internal and external to their country’s legal traditions. Moreover, because these courts usually are accorded the direct enforcement powers of other national courts, they do not suffer the defects of nonjudicial specialized dispute resolution. For example, the enforcement of arbitrated decisions is often uncertain because of public-review doctrines available to national general courts that are subject to political influences. Criticism of specialized courts has less to do with how they perform their functions than with their effect (or lack of effect) on the judicial system as a whole. Some argue that by meeting the needs of particular, often highly powerful, interest groups, specialized courts reduce the strength and diversity of the coalition demanding the reform of the courts. In addition, the isolation of specialized tribunals from other parts of the judicial system prevents their innovations and nontraditional practices from diffusing into the

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general courts. But where complex commercial law reform is not institutionalized through specialized courts, its prospects for sustained legal reform seem diminished.7 The new law of civil transactions has taken hold best where it has not disturbed the routine practices of ordinary judicial conduct. constitutional courts The uneven record of success and failure on the judicial-capacity side is mirrored on the constitutional side of the rule-of-law ledger. Reform projects have been effective in installing a package of constitutional courts and associated quasi-judicial bodies that have reshaped the higher reaches of many national governments in developing and developed countries. Surprisingly, as noted above, this new constitutional landscape does not resemble the U.S. constitutional model, in which the location of supreme authority in a written document and its judicial interpretation originated. Rather, the more widely diffused standard package of rule-of-law reform mimics a series of postwar European developments that combine German, Scandinavian, and Mediterranean innovations, including • specialized constitutional courts. • prosecutors with judicial status independent of political controls. • autonomous judicial councils to supervise the careers, budgets, and discipline of judges. • ombudsmen. • electoral commissions and dedicated election courts. • anticorruption commissions. • human rights and truth commissions. • independent audit agencies. • social and economic commissions with civil society membership. Not all reforming states enact exactly the same package, but the form is distinctly not American. And although the structural changes set out in these programs are impressive, it remains unclear whether the actual impact of these institutions in rule-of-law countries will approximate the enormous changes brought about by constitutional courts in the member states of the European Union. Two dimensions of the constitutional-rights agenda in developing countries merit special note even before the effects of the Euro-constitutional model can be determined and evaluated. First, most constitutions in developing nations contain important lists of social, economic, and cultural (or multicultural) rights. If, through constitutional litigation, judges accept a new role as interpreters of juridical claims to health, housing, environmental quality, and employment rights, they will interpose themselves as agents of social change well beyond the ambition or accomplishment of American

398 Thomas C. Heller courts.8 To some degree, this expanded role would reflect the doctrine of the German Constitutional Court that the constitution incorporates and ratifies a substantive or objective social order that the government can be obliged by judicial order to implement (Kommers 1991). At the same time, the concept of activist courts runs counter to the conservative mentality of most judges in developing countries, where deference to executive authority has been inscribed as a political canon from colonialism through independence. In fact, the greater likelihood is that a judicial tradition of formalistic literalism (see below) will narrow the interpretive reach of statutory changes or limit the assertion of new powers by independent regulators that is essential to the administrative reforms demanded by the broader rule-oflaw prospectus.9 Second, there is a serious question whether constitutional reforms penetrate into daily legal life in developing countries. Though the institutional landscape in the national capital may look different after reform, and politically visible constitutional violations may seem better controlled, the history of institutional dualism in these societies often restricts the reach of the center’s writ. In the absence of legal aid agencies or civil society organizations to monitor the behavior of police and other state and municipal authorities in the peripheral villages and urban shanties where most people meet the law, it is not clear whether the performance of new constitutional bodies will be any easier to sustain than the rule-of-law funds, mainly from European donors, that dried up soon after the success of those bodies’ creation. The accomplishment of rule-of-law programs on the separation of powers is far more problematic than it is on other constitutional matters. On the positive side, the establishment of judicial councils has increased the independence of the judiciary from political, appointments, career incentives, and, in some instances, financial pressures. Although the performance and persistence of these councils are neither uniform nor universally appreciated, they are the principal evidence of a potential increase in the capacity of the courts to monitor and control administrative conduct beyond stark violations of basic human rights (Hammergren 2002). But there is scarce indication that judges in developing countries in either general or administrative courts have made use of contemporary European legal doctrines—for example, proportionality or least-intrusive-means tests—to expand their substantive review of the quality of administrative processes or products. Beyond overtly discriminatory regulation, these courts seem reluctant to step in on questions of access, transparency, participation, or other axioms of the new governance unless these standards are explicitly mandated by legislation. There have been some attempts to enact laws to control administrative discretion especially in East Asia, where informal and nontransparent bu-

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reaucratic guidance has been pervasive, without evident substantial changes to date in administrative power or practice (Ginsburg 2001). Judicial reticence to move away from deferring to long-established administrative bodies within government ministries complements the courts’ frequent use of literalist canons of interpretation to strike down the actions of newly established independent regulatory agencies, whose powers and procedures often are derived only from general enabling statutes passed in the course of recent democratization reforms. In both cases, an impervious judicial culture of passivity and formalism in the administrative domain forestalls a rebalancing of authority within the state. Even where this culture shows some cracks at upper-court levels, lower courts tend to remain more a part of local administrations than to keep watch over them. Below we speculate about the causes of judicial deference; but one fact is certain. Ruleof-law programs have had little impact so far on redressing the overwhelming imbalance in favor of the executive branch over either judicial, legislative, or independent regulatory power in the governance of development. explaining the rule-of-law record We offer four propositions as to why the record of rule-of-law reform has been uneven. Programs have had greater success at improving the traditional operations of the legal system especially at higher levels. They have experienced greater failures in reworking the scope and quality of governance, especially at the lower levels of the system. The bottom line is that the ruleof-law movement has chosen a political strategy that reinforces existing legal institutions (ownership); strengthened the monopoly courts claim in their traditional service areas (autonomy); left largely undisturbed a formalist judicial culture that separates itself from and defers to political administration (legal domain); and been unable to extend reforms and incentives that have changed behavior in the upper courts to the lower courts, where the mass of people in developing nations encounter the law (penetration). We hypothesize that it is the combined effects of ownership, autonomy, legal domain, and penetration that explain the spotty accomplishments of rule-oflaw reform. Ownership. A key to this glass-half-full diagnosis is the fact that after the acknowledged failure of the law and development programs of the 1960s, which often tried to work around local elites, rule-of-law programs felt compelled to work through the very courts and professional groups whose reform they were seeking. In so doing, rule-of-law goals and strategies could never stray far from the reigning self-representations of the core actors in the established legal institutions. But these actors were well adapted in structure and culture to the restricted functions law performed in the executive-

400 Thomas C. Heller dominated political economies that characterized most developing nations. There is scant evidence that the judges, elite lawyers, or legal academics in these states were substantially dissatisfied with the underlying concepts or roles of the prereform system. If anything, most would argue that their ideal model of law was very adequate in theory but never implemented because resources were lacking and political interference was not. The logical response of internal actors was to do more of what they knew how to do and to define the job of assistance programs accordingly: expanding system capacity through more funding and productivity training. In response, donors targeted those areas of the legal system where the local legal elites were most receptive to change. As a consequence, facilities enhancement programs and court administration programs came to make up the largest part of the rule-of-law budgets. And, not surprisingly, it is in these areas that reform has had a disproportionate share of its best results. The downside of the pragmatic and politic attraction of rule-of-law programs to reforms with high receptivity from the local legal community is that capacity building, which reproduces and extends the law’s traditional architecture, consumed the major part of the supply of aid funds for law reform. Especially for American and MDB programs, the costs of helping established legal actors do more of what they felt they already did well often left little for reforms that might have challenged the legal traditions and structures in place. Development assistance donors have long grasped the political maxim that local partners must “own” reform projects supported by foreign aid. Rule-of-law programs, in seeking accords with high-level national judges, leading lawyers, and bar officers in a position to resist if not block reform, focused their attention and resources on nondisruptive reforms and on enhancing aspects of the established legal order. The rule-of-law movement assumed the risk that too much ownership might be conferred on the wrong groups. One important result of this strategy was that orthodox selfrepresentations of legal cultures— especially those of the civil law tradition, with which more developing nations identify—rarely were challenged. The object of improving judicial administration was to get more out of existing practices and procedures. Where reform was contemplated, the search for laws and practices that might be imported was overwhelmingly within rather than across legal families. This drive to reinforce what was internal to the national legal tradition accounts for the universal satisfaction with docket management programs: reforming administrative techniques required no disloyalty to underlying substantive or procedural doctrines. Donors also followed the path of least resistance in constitutional reforms. The paradigm for change here was borrowed from institutional patterns adopted, even if relatively recently, in Continental Europe. The central

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modern symbolic commitment to human rights discourse, represented by conformity to external legal forms, fit comfortably only when filtered through the lens of the national legal culture (Risse and Sikkink 1999). Two important exceptions to the proposition that transplants occur mainly within legal traditions can be cited. First, special courts and regulatory agencies, chartered at the margins of the general courts to manage complex contractual and organizational forms that are standard legal operators in the global economy, can borrow with less constraint both substantive and procedural practices with origins in an alien legal tradition. Second, rule-of-law initiatives that experiment with oral criminal trials, more adversarial marshalling of charges and evidence, and the possibility of plea bargaining have demonstrated the potential for more radical shifts across legal traditions. In addition to rewriting statutory and regulatory norms, these exceptional programs incorporate complementary innovations in court procedures and remedies whose absence has often made ineffective the internationally motivated legal reforms enacted without regard to the adjectival legal practices that surround the substantive rules in their home contexts. Without these complements, formal changes in legal norms are likely to produce only the illusion of emerging legal convergence. Autonomy. Rule-of-law reforms in many countries have helped insulate legal authorities, especially courts and prosecutors, from the direct control of political ministries. These reforms, which center on judicial councils and fiscal guarantees for the judicial branch, instantiate the claim to judicial independence at the core of all modern accounts of the rule of law. At the same time, this increased recognition of autonomy strengthens the ability of judges and professionals who are confident in their prevailing self-representation of the legal order to protect what they normally do. And because public legal authorities customarily demand and are accorded exclusive jurisdiction over the provision of law services, more autonomy increases the monopoly power of these same actors to define the quality of those services. When we add to autonomy and monopoly the interpretive discretion that all judges must exercise in practice, whatever the theoretical color of their activism, we arrive at a mixture of ingredients that would be rejected in other offices of government as a recipe for corruption. At the same time, we should neither expect to find nor do we find that rule-of-law programs, constrained by the strategy of local ownership, that target judicial-autonomy norms would spend much time or effort fighting judicial corruption. Yet most judges, especially in the local courts, function within a context that is rife with corruption throughout the political culture. The fundamental difficulty for rule-of-law activities that enhance judicial autonomy is that autonomy in government cannot be seen as a virtue in the

402 Thomas C. Heller abstract. In a corrupt political economy, autonomy permits, even encourages, the corruption of legal authorities. Similarly, in a stable legal culture, autonomy that is not coupled with incentives or internal demands for disruptive practices reproduces institutional conservatism in the name of change. The absence in rule-of-law programs of any grounding in a realistic theory of political economy often has led to outcomes that contradict the intentions of donors and practitioners. We have argued that this lack of grounding is reflected in the lag that exists between rule-of-law activities and current theories of development and democracy, which emphasize new themes like poverty and deliberation. But it also reinforces the very features of a developing legal system—including excessive judicial deference to the executive and embedded corruption—that cut against economic growth and political participation. Legal Domain. The relationship between rule of law and separation of powers is not simple. During the early phase of the law and development movement, reform programs worked to free administration of the economy by technical experts from restrictive legal doctrines that interfered with the state’s powers to pursue the macroeconomic, sectoral, and financial policies that constituted the modernist development agenda. Legal education reforms were dedicated to giving future law professionals an understanding of why traditional legal barriers to growth should be torn down and why the law should facilitate administration. Subsequently, as development theory evolved to favor markets over incompetent and abusive governments, its functional emphasis shifted to give the judiciary greater control over the scope and quality of administrative interventions. But in few developing countries, under common or civil law, does the judiciary actively monitor or limit the pervasive bureaucratic apparatus. In developing countries with a common law tradition—the legacy of British colonial rule—judicial behavior generally follows the English doctrine of parliamentary sovereignty. That doctrine insulates delegated administrative powers from more than minimal judicial scrutiny. In the more numerous developing countries that base their legal tradition in the civil law models implanted by or imported from France, Italy, Spain, Holland, or Germany, the genealogy of the legal culture that isolates areas of law subject to extensive administrative regulation from the legitimate domain of judicial authority is more indirect. There is no obvious legal principle either in classical Roman law or in modern civil codes that prevents judicial reexamination of administrative behavior that impinges on or restricts the strong subjective rights these systems grant legal actors to freely contract and manage property. Nevertheless, the growth of a regulatory state in Europe that assumed increasing powers over welfare and social policy, industrial direc-

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tion, national education, and colonial administration in the latter half of the nineteenth century led to the strategic withdrawal of judicial agencies from policy revision to the more contained domain of purely private transactions. Continental courts, reluctant to suffer the indignity or loss of autonomy of explicit political subjugation to the burgeoning executive, opted for implicit subordination by reviving the weak late-Roman principle of sharply separate categories of public and private law. This new jurisprudence resulted in a growing deference to the political administration by the general courts, which ceded the authority to review policy applications either to agencies inside the executive (like the French council of state) or to specialized administrative courts that limited their supervision largely to checking the formal correspondence between legislation and regulation. In spite of the modern and political origins of judicial deference as a defensive tactic adopted by the civil courts, passivity before public administration gradually became a bedrock of the self-understanding of civil law judges. In developing countries with civil law backgrounds and established bureaucracies transmuted from nationalized colonial administrations, this judicial culture has been easily grafted into political economies charged with primary responsibility for state-led or socialist development.10 Bureaucracies carry out a wide range of policies through pervasive regulations and licensing processes, affording them discretionary powers to grant exceptions thereto as a positive incentive for cooperation and as an opportunity for corruption. Judicial deference to pervasive administration is expressed in legal doctrines that treat whatever is not explicitly permitted by such thick regulation as implicitly forbidden. In the many domains of state activity where administrative and licensing bureaus customarily penetrate governance, courts tend to concede jurisdiction over entire legal fields, including matters not clearly prescribed by regulation, to the administrative authority. Private lawsuits arising out of claims not directly grounded in statutory law or regulations that describe specific remedies are likely to be disallowed, rather than resolved judicially. Through judicial recognition of both active and potential administrative control, whole areas of governance are effectively consigned by the general courts to political agencies. There is no judicial filling of legal gaps that bureaus have left unregulated. This legal culture tends to produce aggressive criminal processes in which prosecutors or investigative magistrates assert control of government authority and passive judicial conduct in civil processes, where judicial withdrawal before other political agencies prevails. Although the evolution of constitutional courts is to some degree altering this balance in contemporary Europe, there is scant change in the traditional separation of powers associated with the general courts in developing countries.11

404 Thomas C. Heller Penetration. Government at the local level in developing nations presents a hyperbolic case of the absence of a modern pattern of separation of powers. The problem of low penetration of rule-of-law reforms, even where they have effected important changes at higher levels of the legal system, is endemic in both common law and civil law systems. This inability to implement reforms away from the more transparent governance of the national capitals, whose institutional architectures are uniquely imbued with the symbols and norms of global modernity, reflects the dualism in economics and politics that normally characterizes developing societies. The structure of governance in development usually is based on delegation of power between asymmetrical political organizations in the center and on the periphery. Even where the Constitution dictates a uniform institutional balance across the state’s hierarchy, the effective relationship between branches of government varies at different levels. In return for regular flows of revenues and political stability from local authorities, the center grants largely autonomous local authorities—whether patronal, corporatist, party, religious, or ethnic—monopoly charters to administer their districts. Like most other governmental bodies, local judges and police have a formally bifurcated nature. Nominally part of a national corps subject to the vertical supervision of their professional superiors in the metropolis, courts and local law actors in fact are integrated elements of the political administrations of municipal or other decentralized jurisdictions. China is often used as an example of the subjugation of law to politics at the local level because the Chinese system recognizes that subjugation in the official lines of legal authority. But the phenomenon is not native or restricted to East Asia. Rather, lower courts more generally are better understood to be divisions of the local administrative machinery, sharing the political-economic attributes of local governance with other political organizations at the same level. In this sense, when local authorities corruptly administer or jointly participate in networks, legal or illegal, of rent-seeking enterprises, judges, police, and prosecutors are likely to claim their share and become corrupt. Where there are no effective incentives or interventions from the center to disturb established delegations of unsupervised governance in the localities, neither is there disequilibration of customary legal practices. This is especially true where rule-of-law resources are consumed at the higher levels of courts and bar, and where little funding or attention is given to creating and sustaining decentralized organizations— of the state or of civil society—to monitor the performance of local institutions. The expected result of the limited penetration of reforms into the lower reaches of the legal system, where popular attitudes toward the law are shaped, is dualism. The rule of law in most developing countries attracts neither con-

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fidence nor legitimacy from the general citizenry when its promises in the center are empty by the time they reach the margin.

Alternate Lines of Approach In proposing alternate strategies for rule-of-law analyses, we might heuristically separate two aspects of continuing work. The first proposition is that an evolving rule-of-law agenda take account of the uneven record of past reforms, and design programs specifically to engage and counter the principal causes of acknowledged failures to meet rule-of-law objectives. The second injunction would be to reduce the current gaps between rule-of-law theory and the newer and less orthodox perspectives on law, development, and democracy, and the global context in which they are to be realized. In the longer run, problems of the second type will likely determine the prospects for the rule of law. These include reconsideration of the roles and capacities of the legal system to implement new economic demands for coordination and the alleviation of poverty; to design innovative mechanisms for providing national and global public goods; to manage issues of regulatory competition between legal regimes facing the constraints of fluid international goods and capital markets; and to adjust to information technologies that are changing the relative value of legal versus private coordination in structuring transactions. In the shorter run, and in this postscript, a focus on improving the record, on the first alternative, is more realistic. The diagnoses of both the strengths of rule of law (better court administration, specialized courts for complex economic transactions, greater judicial autonomy from political control, and improved enforcement of constitutional rights) and its weaknesses (lack of responsiveness to new actions and processes in the general courts, isolation of the specialized courts, little rebalancing of the powers of courts and administrations, and lack of penetration of new rights and remedies into the daily life of society) highlight four recurring themes: the impact of legal culture, the incentives to restructure, the relative weight that courts can bear in the restructured governance, and the complementary reform of other agencies of the state. the impact of legal culture Consider legal culture first. The self-understanding that legal actors maintain about the proper domain for the law versus politics, the scope and nature of appropriate actions that may be taken by judges, or the evaluation of what the legal system does well or poorly is by now an artifact of political economies that may be displaced, past regarding, or under assault. Yet the norms that define a legal culture from the point of view of its practitioners are not directly determined by other elements of the social system, at least

406 Thomas C. Heller as they are intellectually imagined, reified, and defended against external functional demands for reorganization. Self-representations within the law of many developing states continue in legal education and in the routinized practices of legal institutions. They reproduce formalist styles of interpretation (rather than social problem solving), doctrines that assign issues to political administration instead of adjudication, and restrictive procedures that regulate the internal processes of dispute formation and settlement. This legal culture interferes with newer dimensions of reform, like the ability of independent regulators to fashion innovative analyses and remedies in restructured markets. It defers decisions to administrative agencies that have lost the facilities to effect them or to legislatures that never had such power. It walls off the unorthodox practices developed by specialized courts from diffusion through the general judiciary. It reinforces what courts have been convinced they do well without a reexamination of why they ever came to do it. It has been impolitic and unproductive for rule-of-law programs to rely on self-education and self-diagnosis to persuade legal actors, formed and immersed in legal traditions of which they are proud and with which they are comfortable, of the value of fundamental system reform. The incentives of these actors are overwhelming to perform the standard operations that fit the functions of law in the (preexisting) political economy to which the legal system was adapted. Without a serious shift in the structures that define existing incentives, judges and lawyers and law professors seek to reproduce what they believe are the professional roles and standards with which they identify. Increasing their autonomy, resources, and technical skills magnifies their eagerness and ability to do so. Augmenting the monopoly over the provision of the quantity and quality of the public good of law accorded to the courts and bar does not alter the nature of the incentives legal actors face to disturb their familiar practice. Even reducing corruption, which induces behavior that deviates from sanctioned legal norms, without more drives conduct back toward the norms of the legal culture. Consequently, to disrupt the incentives of currently empowered legal actors who have both owned and exhausted the rule of law for decades, it is necessary to undermine the monopoly over law delivery that they have utilized to minimize more than superficial disruption of their institutionalized practices. This strategy suggests increasing competition between, and better dispersed monitoring of, authorized legal agents. incentives to restructure Structural reforms to displace the reified legal culture and to create incentives to alter legal conduct must look first to competition between the general courts and other bodies that could share jurisdiction over legal transactions or disputes.12 This is a difficult step for most legal actors to contem-

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plate because it abandons the near-dogmatic commitment to the proposition that public goods should be delivered by public monopoly. According to this proposition, reform should aim at improving the quality of the monopoly and avoid the redundancies and other inefficiencies associated with competitive markets. Yet there are other currents of the reform of governance that would support a strategy of forcing competition into even unaccustomed locales. Many other government services, from hospitals to public utilities, are being reorganized to introduce competition. At the margin some regulation of competition in all markets that supply public goods may be imperative, but governmental monopoly in services is no longer favored. In this vein, it may be valuable for rule-of-law theorists to study the experience of countries in transition, confronting the problem of restructuring public companies or state banks. Like the legal systems before reform, these public institutions have organizations and institutional cultures adapted to the political economies reform aspires to displace. For example, state-owned enterprises (SOEs) in China evolved in a system that precluded strong competition; afforded subsidized capital; operated in close association with bureaucracies; provided housing, schools, and hospitals to their workforce; and were managed by party-appointed engineers with career incentives to expand production and employment with little regard for costs. Programs to reform these SOEs to survive in competitive goods and capital markets often have proved ineffective (Steinfeld 1998, 27–44). However, organizations outside the state economy, like township and village enterprises (TVEs), although not private entities have been forced to operate in less-politicized markets with harder budgets and more concern for profitability (Oi 1999, 1–16). In many cases, reform has come to the SOEs because they have confronted competition from the more successful of the TVEs, rather than because someone figured out a better way to change their internal structures or mentalities. Similarly, it is more likely competition from private and international banks than domestic reforms that drives Chinese state banks to reevaluate the sustainability of their loan portfolios (Lardy 1998, 59 –127). The lesson of this experience is that an enterprise in one genre of political economy is not the same as a company in another. Nor is a bank a bank. The fact that we lump different institutions into a class unified by the same functional name may produce the illusion that the better path is to reform the nature of organizations from the inside. Change in established organizations may be effective only when motivated by the incentives that come with competition between two distinct types of organization that share the same class name, but are adapted to different systems of political economy. If a firm is not necessarily a firm, nor a bank a bank, a court is not necessarily a court. Rule-of-law reform has focused on change from within the existing legal system, and that depends on the commitment of high-level le-

408 Thomas C. Heller gal elites within established structures. For the same reasons that reforms of SOEs that aim at an internally motivated change of conduct and strategy by high-level managers of those enterprises have flagged, it should not be surprising that the rule of law has not lived up to its announced expectations. To propose an increase in competition in “law markets” raises both theoretical questions and political resistance. The public monopoly in private law adjudication and administrative review has been a staple principle of modern governance that seems more deeply imbued in legal and constitutional doctrine than is public monopoly in telecommunications or electricity, whose recession is itself much contested among economists and politicians. Moreover, legal decisions regularly involve mandatory enforcement, which touches on the classical monopoly of the government over the means of violence. Yet it is also the case that various forms of competition in practice are disturbing legal monopolies in contemporary national and transnational contexts. At horizontal levels of government in many countries with a history of unitary centralism in the legal system, in addition to wider experimentation with alternative dispute resolution (ADR) and varieties of arbitration, there is a new political willingness to consider domestic federalism and greater empowerment of decentralized, plural legal authorities. Federalism opens the potential for forum shopping, especially if lines of jurisdiction regularly overlap, and, thereby, for regulatory competition between law systems. Specialized courts, whether set up by area of expertise or by geographic zone, although usually justified for their substantive expertise, also may be sources of innovation in legal procedures and remedies that better define the actual scope of governance that courts can exercise. Reforms to expand the scope of more general jurisdiction of these organizations would enhance their capacity to compete for practice and serve as points of attraction for diffusion of their techniques. Concurrently, competition in law markets has exploded at the vertical or transnational level in recent years. Regionally, the European Court of Justice has disturbed long-settled doctrine and process in both civil law and common law national courts in the European Union. NAFTA’s dispute resolution mechanisms increasingly are invoked to review administrative governance in Canada, the United States, and Mexico. World Trade Organization (WTO) complaint and, since 1994, mandatory dispute resolution procedures are used to challenge the absence of nondiscriminatory and arbitrary regulation in domestic legal systems where judicial deference has been the historical norm (Glover and Lotvedt 1997, 30 –34; WTO 2000). Both horizontal and vertical competition are more available through private or quasi-private systems of lawmaking and dispute settlement that are available through now conventional and standardized commercial arbitration or

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through newer explorations, like Internet law. Competitive law markets are effectively present when corporations list, as they more and more do, on stock exchanges in foreign countries whose corporate governance law and regulation may help these companies to bond more credibly their commitments to protecting their public shareholders (Coffee 1999). Although each of these developments differs in its scale and brings up new problems avoided by the ideal of law as a public monopoly, they have become sufficiently widespread to dispel the fear that competition in law implies legal anarchy. Competition is not a cure-all; it simply suggests that where multiple legal organizations are accorded or assume nonexclusive jurisdiction over a field of law or a class of actions, there is an increased possibility that the ability of any monopolist to resist change in its service line is reduced. It is true, as critics of programs encouraging court specialization (with exclusive jurisdiction) or ADR argue, that such rule-of-law activities deflect political incentives away from general court reform. The harder question is whether the poor record of political incentives in yielding court reform to date now justifies more consideration of structural incentives by means of enhanced competition in the pursuit of rule-of-law objectives. Any initiative to displace, even in part, public monopoly by institutions more associated with competition raises cautions about the quality of collective goods and the capacity to regulate adequately what will always be imperfect markets with heavy third-party effects. First, political-economic models based on regulatory competition to improve public services must account for incentives among service providers that explain why they scan, learn, and adopt practices that attract transactions to their organization. In the classical cases where competition among the several overlapping jurisdictions of English courts of law and equity led to the reform of the standard forms of action or where Delaware company law emerged as the preferred practice among U.S. corporations, it is assumed that fees received for opinions or incorporations motivated innovation. More recently, and perhaps more accurately, overtly sociological models based on the diffusion of best practices through professional norms and industry (sectoral) associations have been put forward to explain why productive innovation spreads through decentralized networks (Helper, MacDuffie, and Sabel 2000). Second, arguments that favor the competitive provision of public services must confront issues of coordination and quality. In the American federal court system, there remain asserted excesses wherein some states maximize their own jurisdiction over classes of cases (for example, mass tort suits) by manufacturing doctrine or procedure that attracts litigation, but externalize the costs of poor-quality law outside their borders. Multiple providers of law also generate conflicting rulings and policies that impose the transaction costs of negotiating and managing institutions to reduce the resulting fric-

410 Thomas C. Heller tions. Both of these problems appear in controversies like the current arbitration under NAFTA of extraordinary awards of punitive damages by U.S state juries to favor local interests.13 But these legitimate concerns are no more than the manifestation in the legal system of the same conundrums that afflict all reforms involving privatization and competition. And if the broader political-economic context of reform that stimulates so much of the ruleof-law agenda is oriented toward these principles of competition, should they be inapplicable per se in the domain of law itself ? Given its uneven record, should rule-of-law analysis not consider whether it is now more politic to take on the integrated package of virtues and defects the dynamics of competitive markets import? A rule-of-law agenda that concentrated on structural reforms within and across legal systems would likely provoke significant opposition within the upper echelons of the national courts and bar. To encourage new spheres of concurrent jurisdiction; more competition for overlapping classes of transactions; cross-national and multiagency associations that examine standards of good legal practices and create reputational, if not material, incentives to adhere to them; and experimental mechanisms or compacts to mitigate the more costly inconsistencies between states and private law providers will alter the familiar accommodating, but ineffective, politics of the rule of law. Transforming structural incentives for reform also will have a disparate impact on the different functional components of law for development. De facto adoption of a quasi-competitive program already has yielded some measure of success for the rule of law in specialized tribunals for handling complex contracts and in constitutional rights. In each case, new separate courts and complementary institutions have displaced orthodox legal cultures and produced new remedies and procedures, even at the price of isolation of these changes on the margins of the general court system. Innovations in doctrine and process now accepted in these specialized courts could have important consequences for the reform of civil litigation in expanded markets or for the rebalancing of administrative and judicial powers if the rule of law were to expand the jurisdiction of these newer organizations. The separation of powers and legal penetration issues involving the review of conduct of nonjudicial public agencies or local governments may be better approached through vertical competition. Just as challenges to administrative actions can be filed at the European Court of Justice or NAFTA in lieu of actions in the national courts, so the ability to initiate publicinterest actions in the Indian high courts or to bring suit alternatively in local or provincial tribunals in China may upset the prevailing pattern of subordination of local courts to local administrations in many developing countries. The pervasive difficulties of deepening the penetration of new legal practices where local governance is farmed out to local political machines

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may present the most intractable functional problem for structural reforms, as it has for standard rule of law until now. Again, attention to possibilities for competition may help expose tendencies in the present context that open a less-conventional path to change. As noted above, in other problems of transition, more marketlike economic behavior among innovative businesses (TVEs) or financial intermediaries (mutual credit associations) formed at the edges of the entrenched political economy. These organizations may be better adapted to emerging markets and provide a principal source of internal competition that stimulates reform in the state enterprises or bank system. Because local courts customarily act as administrative departments within the existing political economy, their services often have been inaccessible, if not hostile, to emerging market actors whose behavior runs outside the regulated routines of the established legal order. In many cases, to manage transactional risks, these new business organizations have resorted to informal, decentralized, and nonstate adjudication mechanisms that now reside in the shadows of official legal institutions. Recognizing and building up from these installed, if sometimes illicit, mechanisms may permit competition at the margins of local politics, where top-down penetration quickly reaches its limits. weights and complementary reforms This brief for markets in the provision of law services should not be as judicial centric as the rule of law has been in the past. The concepts of competition and structural reform may apply equally to issues like the decentralized monitoring of legal institutions and the responsibilities of the judiciary relative to civil society, to political administration in the coordination of private markets, and to the reform of local governance where the writ of the law has run thin. The centralized public provision of law services is invariably a single element in a wider portfolio of economic and social governance mechanisms whose optimal composition depends on the relative productivity of human and organizational resources over a range of functional demands. Scarce court capacities should be employed where they have the greatest value compared with their available substitutes. Conversely, rule-oflaw funds and efforts may have their highest contribution when they support reforms in institutions complementary but external to the courts and the bar that free the legal system’s specialized assets for other purposes. Consider examples of reforms that are not aimed at the courts directly but that have structural effects on their performance. Most legal systems concentrate in centralized public agencies the monitoring of anticompetitive conduct, abusive policing, corruption, or other unwanted activity. Expanding the possibilities of private lawsuits, along with the requisite incentives to pursue them, decentralizes and brings competition to determine what be-

412 Thomas C. Heller havior courts find in their purview. In this regard, it becomes essential to fund and empower civil society organizations with the expertise to monitor, evaluate, and challenge official conduct on a sustained basis. Alternatively, poorly informed markets lead to asymmetrical expectations among transaction partners and tend to increase the probability of private lawsuits. Facilitating thick private networks of disclosure and analysis by press, market intermediaries, and self-regulating professional associations can relieve the weight of disputes and complaints that can debilitate the performance of courts and regulatory agencies (Black 2001). The restructuring of other branches of government also may serve the objectives of the rule of law indirectly. The reform of statist economies requires both the recession of administrative power and the transformation of administrative quality and process in the reduced domain it occupies in market-centered systems. Transformation implies a loosening of the political control exercised by ministries over administrative agencies and reorganizing the procedures through which pervasive administrations operate. This reorganization implies improving the access of interested parties and organizations to the formation of regulatory policy and rules; rendering transparent the arguments, evidence, and reasons that underlie policy choice; and ensuring the adequacy and availability of review. Although review by independent courts usually is the principal plank of a rule-of-law program, it should be remembered that the political capital and institutional capacities of courts in this sensitive field are best husbanded. Improving the quality of the civil service and internal administrative appeals generally absent in developing countries can help reserve judicial action for where it is most needed. Finally, focusing reform on nonlegal institutions may be the most effective strategy to expose the familiar passivity of lower courts to demands inconsistent with their long-standing subordination to local authoritarian politics. The nourishing of community membership organizations to build a civil society independent either of state corporatism or of the internationally funded NGOs in the capital is essential to monitoring corrupt and exploitative local political machines. To this end, the structural reform of decentralized governance can increase the incentives for such organizations to form and engage in the provision of local public goods. Competition for timelimited, transparent service contracts at the local level can provide a new foundation for local democracy as it undercuts the political monopolies into which local courts have been assimilated (Sabel, O’Rourke, and Fung 2000). Our closing counsel is that for the rule of law to go beyond its accomplishments thus far, it ought to consider shifts in its standard course. Structural reform focused on competition and incentives for disrupting current legal practices should replace political pragmatism because existing legal in-

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stitutions remain artifacts of the very system that is the object of reform. Competition is already visible in the margins of national legal systems, so this injunction is neither as radical nor impractical as it may seem. In addition, the rule of law ought to become less centered on the judiciary because the quality of judicial institutions, as well as their ability to bear the additional burden market-centered systems impose on them, depends on the quality of the public, private, and civil society organizations that in large part manage developed and democratic political economies. Indirect approaches to strengthening the rule of law through supporting complementary institutions are central because the law flourishes only when we do not ask more of it than it can supply. Perhaps as we begin to work through the problems of this altered agenda, we will gain some time to imagine how the rule of law can then catch up with and enrich the still-moving leading edge of an integrated theory of development.

Notes 1. The four functions of law, discussed in detail below, include increasing judicial capacity, developing the use of complex contracts, separating governmental powers, and protecting constitutional rights. 2. These mechanisms for internal scanning and revision more often operate within legal traditions than across them. A country that sees its legal system as part of the civil law tradition customarily has restricted its reform models to other systems that claim the same legal allegiance. Colombia would look to France or Italy in its continuing revaluation of doctrine and organization, rejecting transplants from the United States in normal circumstances (see, generally, Watson 1974). However, as discussed below, in connection with both the economic and constitutional dimensions of the rule of law, boundaries that limit the sources of legal models for reform are weakening. 3. The supply of domestic capital was never as short in East Asia as it was in Africa or Latin America. But East Asia, mainly under Communist rule and with no substantial Western colonial experience, was not the primary focus of development economists’ attention until the 1970s, when it became clear that it was the only region where growth had continued. See Adelman and Morris (1967) for an example of a leading-edge analysis in the 1960s that failed to identify East Asia as an exceptional growth pole. 4. Although the logic was straightforward, it rested on a weak foundation—production functions derived in very different circumstances. See Meier (2001, 5, 14) on the misapplication of the Harrod–Domar growth analysis. 5. See Meier’s discussion of Solow and Romer (2001, 19 –20). 6. In contrast, consistent with the ideological focus on constitutional rights, the

414 Thomas C. Heller diminishing scope of government, and market foundations, neither European nor American rule-of-law aid placed more than marginal emphasis on public or administrative law, the reform of regulatory agencies, or sustainable mechanisms for decentralized monitoring of administrative behavior. 7. For example, consider the demand for a reworking of corporate governance laws to better protect minority shareholders from the predatory practices of managers and control shareholders. There is little evidence that the general courts are willing or able to entertain litigation that delves into the morass of legal obligations of executives, accountants, directors, and underwriters, and of class-action issues. 8. Broad powers of administrative review, like those attached to Continental Europe’s specialized constitutional courts, are exercised by the high courts in India, which, through exceptional procedures, encourage the filing of public-interest litigation. For an illustration of aggressive willingness in constitutional courts to entertain and decide claims to justiciable substantive rights, see recent South African jurisprudence including TAC and Others v. Minister of Health and Others, excerpted at www.cptech.org/ip/health/sa/sa12142001.html. 9. For example, Mexican courts have used amparo procedures to reverse rulings of the new national telecommunications regulator on the grounds that the rulings lack a clear basis in legislation, giving rise to challenges to Mexico’s compliance with its World Trade Organization obligations (WTO 2000). 10. In contrast, in Latin America, where the law and development movement initially struggled with legal conservatives using formalistic interpretations of law to restrict the new developmental administrations, there was a century of national judicial accommodation to traditional corporatist political economies that resisted the reformist, modernist state policies, often redistributive, of the 1960s. It was the latter that called forth the legal resistance that law and development sought to eliminate. 11. As noted earlier, in India, a common law state, the high courts and the Supreme Court have since the 1950s used an extensive written Constitution as grounds for active judicial review of the regulatory state. The parameters of this review have grown significantly since the 1970s through the practice of facilitated public-interest suits. The political tensions between the Indian “license Raj,” or pervasive administration, and the courts reflect the exceptional legal situation caused by the reluctance of the Indian high courts to exercise the more usual judicial deference to administration that characterizes legal traditions in most developing countries. 12. The monopoly of law provision by the official system always will be limited by nonlegal or illegal services to manage risks and settle controversies. When the law becomes highly inefficient, expensive, or corrupt, we see an explosion of the informal economy, contracting through only familiar or related parties, or the growth of administrative corruption as evidence of this substitution. But we must believe that nonlegal or illegal substitutions often are imperfect, or the current emphasis on the importance of the rule of law for development and democracy would be unnecessary. Although the process of rethinking the rule-of-law agenda should pay far more attention to the kind and degree of substitutability for legal goods and services than it has, we assume the grant of monopoly power to the official legal system remains

An Immodest Postscript 415 of some consequence and that its restriction, therefore, would have some behavioral impact. 13. Notice of Arbitration Claim: The Loewen Group, Inc., and Raymond L. Loewen v. United States (1998), ICSID Case No. ARB (AF)/98/3 (November 19, 1998), 1–13, 38 – 67.

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Index

Page numbers in italics refer to tables. accessibility of justice system, 32, 34, 266, 319, 329n. 60 accountability of justice system, 21–23, 33, 35, 54n. 1, 259 – 62 administrative cases: in China, 194, 201–3, 201; in Western Europe, 78 –79, 78, 93n. 18 administrative reconsideration, 202 –3, 215n. 17 ADR. See alternative dispute resolution methods Africa, 37, 387, 413n. 3, 414n. 8 agency theory, 370 –71n. 29 Agrawala, S. K., 130n. 39 Ahmadi, A. M., 157n. 5 alimony, 75 Alkire, Sabina, 373n. 51 alternative dispute resolution methods: advantages of, 143; assessment of, 132n. 62, 362 – 64, 375n. 69; baseline data on, 363 – 64; and consumer forums in India, 8 –10, 142 –57; different approaches to, 143; empirical research on, 362 – 64; interaction between caseload pressures on courts and, 6 –7; and Inter-American Development Bank (IDB), 302, 304; justifications for, 151; lok adalats in India, 7– 8, 96 – 127, 144, 157n. 2, 356; in Mexico, 265; in Pakistan, 362 – 63; panchayats in India, 7, 103 – 6, 112, 113, 115, 125, 129nn. 22 – 27, 130n. 42; and rule of law, 142, 143; and standard package of judicial reforms, 356; Sternlight on, 160n. 29; USAID guide to, 157n. 1

Ambedkar, B. R., 104, 126 American Bar Association, 54n. 9, 306 amparo ( judicial review), 241–42, 254, 255, 268, 274, 278n. 3, 278n. 9, 283n. 50, 414n. 9 Andhra Pradesh Pollution Control Board v. Professor M. V. Naydu, 158n. 7 appeal courts, 75 –76, 76 arbitrash courts, 28, 56n. 24 arbitration, 103, 112, 170 –71, 183n. 24 Argentina, 28, 56 –57n. 25, 298, 299, 303, 325n. 26, 327n. 37, 329n. 60, 342 Arnold, Thurman, 172 –73 Asia: East Asian nations, 387, 389, 398 –99, 404, 413n. 3; judges in, 99; litigation rates in, 97–98. See also specific countries Asia Foundation, 19n. 1, 323n. 2, 350, 352, 362, 374n. 63, 375n. 69 Asiad workers case, 107, 130n. 35 Asian Development Bank (ADB), 19n. 1, 98, 347, 357, 362 – 63, 370n. 27, 371n. 35, 371n. 38, 372n. 47, 374n. 63 assault, 80, 80, 82 attorneys: in China, 169 –70, 183n. 21, 211, 217nn. 28 –30; and consumer forums in India, 9, 148 –49, 156 –57; in India, 100, 122 –23; in Mexico, 245 –46, 275, 276, 279n. 14; and standard package of judicial reforms, 353 –54; in Western Europe, 64 – 65, 64. See also legal professionals Australia, 54n. 6, 164, 388 Austria: appeal courts and highest courts in, 75 –76, 76, 93n. 14; attorneys in, 64 – 65, 64; budget for judicial system in, 84 – 88,

420 Index 85, 94n. 21; caseload of prosecutors’ offices in, 80, 81; civil justice in, 68 –77, 69, 76; constitutional courts in, 88 – 89; criminal justice in, 79 – 84, 80 –84; judges and prosecutors in, 65 – 66, 66; judicial review of administration in, 78 –79, 78; judicial systems in, 6, 63 –92; labor law disputes in, 77–78, 78; litigation rates in, 69 –72, 69; police reports and prosecutions of crimes in, 82, 83, 83; prison system in, 84, 85; public opinion on efficiency and social legitimacy of justice system in, 29, 29; traffic tort in, 74; victim surveys in, 80, 80 automobile accident cases, 111, 113, 127n. 5, 131nn. 46 –48 automobile theft, 80, 80, 82 autonomy and rule of law, 401–2 Aylwin government, 227 Baird, Vanessa, 90, 91 Baldwin, John, 21–23, 54n. 3, 54n. 5 Bandhua Morcha v. Union of India, 107 bankruptcy, 261 Barlow, Tani, 368n. 10 Baxi, Upendra, 105 – 6, 128n. 13, 129n. 28 Belgium, 29, 72, 74 Bershok, Rhonda, 132 –33n. 67 Best Practices Institute, 59n. 41 Bhagwati, Justice, 105, 108 Bhagwati Committee, 105 Bhopal case, 116 –18, 132n. 57 Biebesheimer, Christina, 327n. 36 Blackton, John, 358 –59 Blair, Harry, 143 Blankenburg, Erhard, 54n. 10 Bolivia, 298, 299 –300, 328 –29n. 52 Bower, A. G., 58n. 38 Brazil, 303, 327n. 37, 343 bribery, 212 Britain. See England and Wales “budgetized” lending, 293, 314, 323n. 10 budgets for judicial systems: in Chile, 13 – 14, 232; in China, 177–78, 179, 186 – 87n. 55, 204; and court fees, 86, 179; and fines imposed by courts, 87; in Mexico, 58 –59, 240 –41, 242, 259, 278n. 4, 282nn. 36 –39, 283n. 46; in Western Europe, 84 – 88, 85, 94nn. 20 –24 Bureau for International Narcotics and Law Enforcement Affairs (INL), 311

burglary, 80, 80, 81, 82 Burke, Edmund, 175 business groups, 355 Caballero Juárez, José, 247, 276, 278n. 5, 279n. 14, 282n. 36, 283n. 54 Caldeira, Gregory, 90, 91 Calderón, F., 220 –21 California, 58n. 36, 367n. 2, 374 –75n. 67 Callaghan, James, 24 Canada: CIDA in, 327–28n. 43; as colony, 388; international assistance by, 164, 305, 373n. 58; judges in, 99; and NAFTA, 249, 250, 408 capitalism, 368n. 10 Cappalletti, Mauro, 262 Carnegie Endowment for International Peace, 372n. 43 Carothers, Thomas, 142, 348 –49, 370n. 26, 371n. 34, 372n. 43 Carter Center, 327n. 42 case management, 299, 326n. 31, 358 –59 case management applications (CMAs), 358 –59 caseloads: in China, 178 –79, 194 –95, 194, 195, 197, 198, 200, 201, 201, 314n. 1; of consumer forums in India, 147–48, 153; of lok adalats (people’s courts) in India, 109 –10, 131nn. 46 –47; in Western Europe, 80, 81 Casper, Gerhard, 338 –49 cassation (appeal), 76, 76, 90 Cato Institute, 373n. 58 CCP. See Chinese Communist Party Centro de Estudios Judiciales de las Americas (CEJA), 237n. 2 Chiapas rebellion, 251, 254 child support, 75 Chile: budget for judicial system in, 13 –14, 232; civil, commercial, and constitutional law in, 234 –36; civil society in, xxiii, 228 –29; and concern for the future, 227; economic and political aspects of judicial reform in, 12 –14, 225 –37; efficiency of criminal justice system in, 230 –34; judges in, 230; legal academics in, 229, 354; legal education in, 360; Paz Ciudadana (Citizen Peace) Foundation in, 13, 229, 355; political process of judicial reform in, 226 –30; public policy and re-

Index form of criminal justice in, 230 –34; public prosecutors in, 231–32; symbolic reinauguration of courts in, 28 China: administrative cases in, 194, 201–3, 201; administrative reconsideration in, 202 –3, 215n. 17; arbitration in, 170 –71, 183n. 24; assessment of legal system in, 203 –214, 364; attorneys in, 169 –70, 183n. 21, 211, 217nn. 28 –30; bribery in, 212; budget for judicial system in, 177– 78, 179, 186 – 87n. 55, 204; caseloads of courts in, 178 –79, 194 –95, 194, 195, 197, 198, 200, 201, 201, 214n. 1; civil justice in, 194, 197–99, 198, 341; Communist Party in, 11, 184n. 34, 195 –96, 199, 200, 203 – 6, 207, 213, 214, 215 –16n. 18, 216n. 20; competence of judges in, 11–12, 206 –10, 213, 216 –17nn. 24 –27; corruption in, 187n. 58, 211–13, 214; court personnel in, 173 –75, 174, 185nn. 38 –39; courts in, 171– 80, 174, 184 – 85n. 35, 214n. 2; criminal justice in, 194 –97, 194, 195, 214n. 6; data sources on, 165 – 67, 182n. 5, 182n. 8; debt collection in, 197–98; divorce in, 198, 216n. 27; docketing system of courts in, 172; economic cases in, 194, 199 –201, 200; economic growth of, 343; empirical research on judicial system of, 10, 164 – 81; fairness of courts in, 12, 211–13; future research on, 180 – 81; and ideology of legality, 172, 184n. 34; incidental civil claims in, 199; independence of courts in, 11–12, 203 – 6, 213, 215 – 16n. 18, 216n. 20; judges’ and court officials’ education in, 175 –77, 186n. 49, 186nn. 52 –53, 208, 210, 213; judges in, 11–12, 164, 166, 173 –77, 174, 185 – 86nn. 44 –45, 186n. 49, 186n. 51, 187n. 58, 187n. 60, 197, 203, 206 –14, 216n. 20, 216nn. 23 –30; judicial incentives in, 180 – 81; justice system in, 10 –12, 164 – 81, 193 –214; legal affairs offices in, 169, 183n. 20; legal culture of, 167; litigation fees in, 179, 186 – 87n. 55, 187n. 63; litigation rates in, 98, 128n. 8; local courts in, 167, 174, 179 – 80, 187n. 63, 215n. 12; mediation in, 170, 198 –99, 212; medical malpractice in, 215n. 7; and modernity, 368n. 10; National People’s Congress (NPC) in, 11, 166, 183n. 20, 196, 214;

421

obstacles to study of judicial system in, 180; overview of, 10 –12; people’s assessors in, 175, 185nn. 42 –44, 216n. 21; People’s Tribunals (PTs) in, 179 – 80, 187– 88n. 67; population of, 215n. 14; punishment of judges for “wrong” decisions in, 187n. 58; questions on legal system in, 167– 68; state-owned enterprises (SOEs) in, 200, 407; status of judges in, 11–12; subjugation of law to politics in, 404; Supreme People’s Court (SPC) in, 85n. 58, 166, 167, 175, 176, 185n. 38, 196, 197, 205, 211, 216n. 18; Supreme People’s Procuracy in, 166, 167, 168 – 69, 185n. 39, 186n. 53, 204; tort claims in, 198; township and village enterprises (TVEs) in, 407, 411; as WTO member, 164, 182n. 3 China International Economic and Trade Arbitration Commission (CIETAC), 183n. 24 China International Engineering Consultancy Company v. Lido Hotel Beijing, 183n. 24 China Law Yearbook (CLY), 76, 166, 178, 185n. 38 Chinese Communist Party (CCP), 11, 184n. 34, 195 –96, 199, 200, 203 –7, 213, 214, 215 –16n. 18, 216n. 20 Chodosh, Hiram E., 118, 128nn. 11–12 CIDA, 327–28n. 43 CIETAC (China International Economic and Trade Arbitration Commission), 183n. 24 Citizens Advice Bureaux, 66 civil justice: in Chile, 214 –16; in China, 194, 197–99, 198, 341; and parties’ shared interests and predictability, 68 – 69, 68; in Western Europe, 68 –77, 68 –70, 76 civil law system, 27 civil society, 13, 228 –29, 237n. 5 civil society organizations, 354, 355 Clinton, Bill, 181n. 2, 311 CLY. See China Law Yearbook CMAs (case management applications), 358 –59 “collective action problem,” 372n. 49 Colombia, 295, 298, 303, 311, 324n. 19, 326n. 30, 327n. 39, 413n. 2 “colonization of alternatives,” 158n. 13 commercial law, 234 –36

422 Index Commission Storme, 92n. 7 Communist Party in China, 11, 184n. 34, 195 –96, 199, 200, 203 –7, 213, 214, 215 – 16n. 18, 216n. 20 competition for proposals, 309 –10 compromise, judges’ promotion of, 118 –19 Concha Cantú, Hugo Alejandro, 247, 276, 278n. 5, 279n. 14, 282n. 36, 283n. 54 conditionality in loans, 314 –15, 318 confidence in institutions, 221–22, 223 “constitutional veto players,” 252 constitutions and constitutional courts, 88 – 89, 234 –36, 343 –44, 368 – 69n. 14 –15, 394 –95, 397–99 construction cases, 70 consultants, 352, 354, 371n. 37 consumer advocacy groups, 149 –50, 159nn. 26 –28, 161n. 39 consumer forums: assessment of, 150 –56, 160n. 30; and attorneys, 9, 148 –49, 156 – 57; caseloads of, 147–48, 153; and Central Consumer Protection Council (CCPC), 146, 147, 158n. 12; and consumer advocacy groups, 149 –50, 159nn. 26 –28; court cases on, 151; delays in, 58 –59n. 16, 147–48, 155; functioning of, 146 –50; future research on, 156 –57; impact of, on judicial reform, 154 –55; and improvement of quality of justice, 152 – 53; in India, 8 –10, 142 –57; and interim orders, 151, 160n. 31; jurisdiction and procedures of, 145 –46; legislation on, 144; overview of, 8 –10; questions on, 153, 156 –57; and repeat players (RPs) advantage, 154; role of, in judicial reform in India, 9; staffing of, 150 –51; structure and organization of, 144 –45; terminology on, 158n. 8 consumer groups, 355 contract state, 133n. 78 Corporation of University Promotion, 229, 354 corruption: in China, 187n. 58, 211–13, 214; factors influencing, 284n. 61, 374n. 62; and informal economy, 414n. 12; and legal information, 360; in Mexico, 245, 279n. 11, 283n. 45; as problem generally, 32, 57n. 32, 373n. 57 Cortés Campos, Josefina, 281n. 28, 281n. 30

Cossío Díaz, José Ramón, 269, 278nn. 8 –9, 281n. 28, 281n. 30, 283n. 51, 284n. 57 Costa Rica, 302, 310, 311, 372n. 41 cost-benefit analysis, 13, 19n. 6, 375n. 71 Council of Europe, 94n. 20, 367n. 9 Council of Europe Human Rights Courts, 89 court fees, 86, 179, 186 – 87n. 55, 187n. 63, 329n. 60 courthouses, 358 courts. See justice systems and justice reform; and specific countries credit card collection, 93n. 10 crime: definition of, in China, 194, 196; police reports and prosecutions of, in Western Europe, 81– 83, 82–83; rates of, in Western Europe, 79 – 80, 80, 82, 83. See also criminal justice criminal justice: caseload of prosecutors’ offices, 80, 81; in Chile, 230 –34; in China, 194 –97, 194, 195, 214n. 6; and crime rates, 79 – 80, 80, 82, 83; in Mexico, 244; police clearance and convictions rates, 81– 83, 82, 83; and prison system, 83 – 84, 84, 85, 94n. 20; and rate of defendants sentenced, 83, 83; victim surveys on, 79 – 80, 80; in Western Europe, 79 – 84, 80 –84 criminalization, 196 Cross, Frank B., 368n. 14 culture. See legal cultures Cumaraswamy, Dato’Param, 283n. 45 custody orders, 75 dadas (local strongmen), 125 de la Madrid Hurtado, Miguel, 277–78n. 1, 284n. 56 de la Rua, Fernando, 56n. 25 DEA. See Drug Enforcement Administration debased informalism, 116 Debroy, Bibek, 100 debt collection, 70 –73, 70, 92n. 7, 197–98, 326n. 32 demand and supply factors of civil litigation, 76 –77 democracy and democratization, 221, 243, 317, 343, 347, 388 –90 Demoscopia S.A., 54 –55n. 12 Denmark, 29, 29, 93n. 13, 99, 305

Index Desai, D. A., 129n. 27 Deschenes, J., 57n. 29 Deshta, Sunil, 130n. 42 development projects, 292 –93 development theory, 382, 385 –94, 414n. 9 Dezalay, Yves, 255 DFID, 307 Dhashmesh Dry Cleaners and Dyers v. Geethanjali Nair, 160n. 32 Di Francesco, Michael, 133n. 78 Dialogue: Courts Reaching Out to Their Communities, 58n. 36 Díaz Romero, Juan, 278n. 9 Diego Portales University, 229, 354 Dirlik, Arif, 368n. 10 dispute resolution. See alternative dispute resolution methods divorce, 70, 74 –75, 93n. 13, 198, 216n. 27, 368n. 9 Diwan, Paras, 131n. 54 docketing system, 172 Dos Santos, M., 220 –221 Drug Enforcement Administration (DEA), 310 drug offenses, 82 due process criminal justice codes, 328n. 45 Dumont, Louis, 129n. 23 Durkheim, Émile, 226 East Asia, 387, 389, 398 –99, 404, 413n. 3 East Germany, 55n. 18, 90 –91, 90 –91, 93n. 8, 93n. 16. See also Germany Eastern Europe,324nn. 15 –16, 369n. 16. See also specific countries economic cases, 194, 199 –201, 200, 234 –36 economic growth, 221, 343 Ecuador, 298, 299, 329n. 60 education: donor funding of training programs, 359 – 60; of judges and court officials in China, 175 –77, 186n. 49, 186nn. 52 –53, 208, 210, 213; of judges in Mexico, 269, 271–72, 271, 273; legal education, 12 –13, 229 –30, 243, 275 –76, 346, 350, 359 – 60, 374n. 60; in United States, 19n. 2 effectiveness of justice system, 5, 25 –26, 34, 55nn. 15 –16 efficiency: components of, 5, 25 –26, 33 – 34; of criminal justice system in Chile,

423

230 –34; definition of, 25 –26, 230, 237n. 7; institutional efficiency, 55n. 15; of international assistance to justice programs, 318; of justice system, 5, 25 –31, 28, 29, 33 –34; of Mexican judicial system, 262 – 66, 263 El Salvador, 295, 297, 298, 302, 303, 304, 325n. 21, 327n. 40, 364 Ellickson, Robert C., 367n. 2 empirical research on justice systems, 10, 164 – 81, 242, 273n. 5, 320 –321, 330nn. 62 – 63, 330n. 66, 361– 65 employment cases: in China, 215n. 10; in Germany, 70; in India, 107– 8, 130nn. 35 –38; in United Kingdom, 93n. 17; in Western Europe, 77–78, 78 England and Wales: and accountability of courts, 22 –23, 54n. 5; assessment of judicial system in, 54 –55n. 12; attorneys in, 64 – 65, 64; budget for judicial system in, 84 – 88, 85, 94n. 22, 94n. 24; caseload of prosecutors’ offices in, 80, 81; Citizens Advice Bureaux, 66; civil justice in, 68 – 77, 69, 76; communication between judges and media in, 58n. 36; criminal justice in, 79 – 84, 80 –84, 127n. 5; default judgments in, 70; employment cases in, 93n. 17; international assistance on judicial reform by, 305; judges and prosecutors in, 65 – 66, 66; judges in, 99; judicial review of administration in, 78 –79, 78; judicial systems in, 6, 63 –92; labor law disputes in, 77–78, 78; legal aid in, 66 – 68, 67, 87; legal culture in, 91–92, 91; police reports and prosecutions of crimes in, 82, 83, 83; prison system in, 84, 85; public opinion on efficiency and social legitimacy of justice system in, 29; trust in courts in, 89 –90, 90; victim surveys in, 80, 80 environmental cases, 116 –18, 127n. 5 environmental groups, 355 Epp, Charles, 132n. 60 Epstein, Leo, 330n. 62 Ethiopia, 97 Europe. See Eastern Europe; Western Europe; and specific countries European Community Commission, 92n. 7 European Court of Justice, 89, 408, 410

424 Index European Data Base on Judicial Systems, 54n. 10 European Union, 28 –30, 29, 164, 305, 367n. 8, 368n. 13, 376n. 76, 384, 388 evaluation. See public opinion polls; and specific countries expert evaluation versus public opinion, 35 –38, 36 “failing faith,” 117 fairness of Chinese courts, 12, 211–13 family courts, 75, 216n. 27 Faundez, Julio, 371n. 31 Federal Judicial Conference and Center, 306, 328n. 44 Federation of American Scientists, 124 –25 fines, 87 Finland, 28, 29 fire accidents, 215n. 9 Fix-Zamudio, Héctor, 279n. 17 Fleiner, Thomas, 133n. 67 Ford Foundation, 164 – 65, 181– 82n. 3, 292, 305, 307– 8, 323n. 2, 350, 352 Fox, Vicente, 15, 253, 260, 281n. 31 France: appeal courts and highest courts in, 75 –76, 76; attorneys in, 64 – 65, 64; budget for judicial system in, 84 – 88, 85, 94n. 24; caseload of prosecutors’ offices in, 80, 81; civil justice in, 68 –77, 69, 76; constitutional courts in, 88 – 89; criminal justice in, 79 – 84, 80 –84, 127n. 5; international assistance on judicial reform by, 305; judges and prosecutors in, 65 – 66, 66; judges in, 99; judicial review of administration in, 78 –79, 78; judicial systems in, 6, 63 –92; labor law disputes in, 77–78, 78; legal aid in, 66 – 68, 67; legal culture in, 91–92, 91; litigation rates in, 69 –72, 69; police reports and prosecutions of crimes in, 82, 83, 83; prison system in, 84, 85; prosecutors in, 54n. 7; public opinion on efficiency and social legitimacy of justice system in, 29; role of courts in, 127n. 5; traffic tort in, 74; trust in courts in, 89 –90, 90; victim surveys in, 80, 80 Fraser Institute, 373n. 58 Freedom House, 327n. 42, 365, 376n. 76 Frei government, 227 Friedman, Lawrence, 94n. 25, 340

Friedrich-Naumann-Stiftung, 149 Fujimori government, 228, 324n. 18, 327n. 41 Fulbright Program, 310 Galanter, Marc, 161n. 40, 360, 370n. 25 Gallup, G. H., 59n. 40 game theory, 252, 347, 370 –71n. 29 Gandhi, Indira, 143 GAO. See U.S. General Accounting Office Garber, S., 58n. 38 García de Enterría, Eduardo, 31 Garth, Bryant, 142, 255 GATT (General Agreement on Tariffs and Trade), 249 Gawande, Atul, 320 Geertz, Clifford, 367n. 7 General Agreement on Tariffs and Trade (GATT), 249 Georgia (former Soviet Republic), 28, 56n. 23 Germany: appeal courts and highest courts in, 75 –76, 76; assessment of judicial system in, 54n. 10; assistance to China by, 164; attorneys in, 64 – 65, 64; budget for judicial system in, 84 – 88, 85, 94n. 21; caseload of prosecutors’ offices in, 80, 81; civil justice in, 68 –77, 69, 76; constitutional courts in, 88 – 89, 398; credit card collection in, 93n. 10; criminal justice in, 79 – 84, 80 –84, 127n. 5; divorce in, 74 – 75; international assistance on judicial reform by, 305; judges and prosecutors in, 55n. 18, 65 – 66, 66; judges in, 99; judicial review of administration in, 78 –79, 78, 93n. 18; judicial systems in, 6, 63 –92; labor law disputes in, 77–78, 78; legal aid in, 66 – 68, 67; legal culture in, 91–92, 91; litigation rates in, 69 –72, 69, 70, 93n. 8, 97; police reports and prosecutions of crimes in, 82, 83, 83; prison system in, 84, 85; public opinion on efficiency and social legitimacy of justice system in, 29; reunification of, 55n. 18, 93n. 16; settlement fees allocated to charitable organizations in, 94n. 23; stiftungen (development foundations) in, 149, 292, 307– 8, 328n. 46; tort and liability in, 93n. 12; traffic tort in, 70, 74; trust in courts in, 89 –90, 90; victim surveys in, 80, 80

Index Gibson, James, 90, 91 Global Democracy Center, 308 –9, 326n. 33 globalization, 122, 132 –33n. 67, 347 gram panchayats, 125 –26 Great Britain. See England and Wales Greece, 29 –30, 29 GTZ, 228 –29n. 52, 307 Gu, Peidong, 170 Guatemala, 297, 298, 299, 300, 304, 327n. 40, 364 Gupteswar, K., 131n. 51 Haiti, 304, 311, 327n. 40, 329n. 55 Hammergren, Linn, 33, 351–52 Hansen, Gary, 143 Harbans & Co. v. State Bank of India, 151 Hayden, Robert, 129n. 23 He, Haijian, 185n. 41 He, Jiahong, 175 He, Weifang, 165, 182n. 10, 186n. 49 Hegel, G. W. F., 237n. 5 Heller, Thomas, 142, 368n. 12 Hensler, Deborah, 18, 362 Hewlett Foundation, 375n. 69 high development theory, 385 – 88 Hirschman, Albert, 19n. 4, 57n. 27 Hobbes, Thomas, 226, 237n. 5 Hoffer, Eric, 18 Holland. See Netherlands, The Hollow Hope (Rosenberg), 344 hollowing-out thesis, 33n. 77, 126 homicide, 81, 82 Honduras, 302 Hong Kong, 183n. 13 Huang, Philip C. C., 128n. 8 human rights, 295, 305, 342, 347, 348, 355, 372n. 48 Human Rights Courts of Council of Europe, 89 Human Rights Watch Project for Asia, 130n. 38 Hume, David, 226 Hungary, 28 Huntington, Samuel, 370n. 23 ICITAP. See International Criminal Investigative Training Assistance Program ILANUD. See United Nations Latin American Institute for Crime Prevention and Treatment of the Delinquent

425

impartiality of justice system, 32 –33, 35 incidental civil claims, 199 independence. See judicial independence India: arbitration in, 103, 112; Asiad workers case in, 107, 130n. 35; assessment of performance of lok adalats in, 113 –16; attorneys in, 100, 122 –23; avoidance and bypassing of lower courts in, 100 –103; backlog of court cases in, 18 –19n. 1, 99 – 101, 161nn. 42 –43; Bhagwati Committee in, 105; Bhopal case in, 116 –18, 132n. 57; bonded labor cases in, 107– 8, 130nn. 35 –38; caseloads of lok adalats in, 109 – 10; claims for money damages in, 101–2; colonial period of, 103 –4, 157n. 4; comparative context of litigation in, 97–98; Constitution of, 102, 106, 127n. 2, 130n. 36; consumer forums in, 8 –10, 142 –57; dadas (local strongmen) in, 125; delays in judicial system of, 100 –101, 103, 121; democratic history of, 143; district courts in, 112; Emergency Rule in, 106, 107, 129n. 29, 129 –30n. 31, 132n. 60, 143; fact-finding and compensation awards by lok adalats in, 110 –13, 112; functioning of lok adalats in, 108 –13; and globalization, 122, 132 –33n. 67; government parties in court cases in, 101; gram panchayats in, 125 –26; high courts in, 100, 112, 414n. 11; informalism in regular courts in, 116 –24; jan adalats in, 124; judges in, 99, 128n. 12; judges’ promotion of compromise in, 118 –19; law school in, 360; legal aid in, 106 –7, 129 –30nn. 31– 34; legal system of, generally, 96; litigation in, 97–103, 127n. 3, 127n. 7, 128nn. 9 –10; lok adalats and legal rights in, 7– 8, 96 –127, 144, 157n. 2, 356; lower courts in, 7, 100 –103, 159n. 24, 375n. 70; Maoist Communist Centre (MCC) in, 124, 133n. 71, 133n. 73; Naxalites in, 124 –25, 133n. 70; nyaya panchayats in, 104 –5, 112, 113, 115, 120, 129nn. 24 –27, 144, 158n. 6; Panchayati Raj policy in, 104; panchayats in, 7, 103 – 6, 112, 113, 115, 125, 129nn. 22 –27, 130n. 42; People’s Council for Social Justice (PCSJ) in, 113; perceptions and realities of litigation in, 99 –103, 99; population of, 97, 127n. 4; problems of judicial system in, 7,

426 Index 99 –103, 143, 157n. 4; public-interest litigation in, and influence on lok adalats, 106 – 8, 132n. 60; recommendations on judicial reform in, 121–27, 157–58n. 5; shakhas in, 125; and sunk-cost auction, 7, 101; Supreme Court of, 103, 107– 8, 112, 116 –17, 126, 127n. 2, 128n. 15, 128n. 18, 130n. 35, 130n. 39, 145, 151, 414n. 11; and torte law, 121–22, 132nn. 64 – 65; tribunals in, 8 –9, 102, 128nn. 19 –20, 144, 158n. 8; writ jurisdiction in, 102, 128n. 18 India University Law School, 360 Indonesia, 355, 374n. 63 informalism: appeal of, 119; compared with public-interest litigation, 117–18; difficulties with, 119 –24; and documentation, 119 –20; and lok adalats (people’s courts), 105 – 6, 117, 129n. 28; questions on, 119; in regular courts in India, 116 – 24 INL (Bureau for International Narcotics and Law Enforcement Affairs), 311 Institute for Legal Research, National University, 245, 254 –55 institutional effectiveness, 55n. 15 institutional efficacy, 34, 55n. 16 institutional efficiency, 55n. 15 Inter-American Development Bank (IDB), 237n. 1, 240, 301, 302 –4, 309, 327n. 33, 327nn. 35 –39, 347, 351 international assistance to justice programs: assessment of, 290, 316 –22; beginnings of, 307–10; bureaucratic politics in bilateral programs, 310 –12; and competition for proposals, 309 –10; definition of donor, 292; and development projects, 292 – 93; and donor cooperation, 315 –16, 329n. 53; European Union, 305; and field staff for grant management, 294; general concepts on, 292 –95; grants and loans by, 292, 293 –94, 324n. 12; Inter-American Development Bank (IDB), 237n. 1, 240, 301, 302 –4, 309, 327n. 33, 347; in Latin America, 15 –16, 220, 290 –322; objectives of, 290, 318 –320; and opportunity costs of justice reform, 317–18; organizational politics and MDB programs, 312 – 15; and policy-based loans (PBLs), 351, 372nn. 40 –41; political economy of do-

nor assistance, 306 –16, 350 –52; quasidonors, 305 – 6, 327n. 42; and sector assessment, 309; and training programs, 359 – 60; United Nations, 304, 309, 347; U.S. Agency for International Development (USAID), 295 –98, 301, 307–12; waste in, 318; World Bank, 298 –302, 307, 308, 312 –15, 347 International Association of Democratic Lawyers, 132n. 61 International Criminal Investigative Training Assistance Program (ICITAP), 294, 310, 324n. 14 International Republican Institute, 327n. 42 Internet, 374n. 63, 409 Ireland, 29 Italy: appeal courts and highest courts in, 75 –76, 76; attorneys in, 64 – 65, 64; budget for judicial system in, 84 – 88, 85; caseload of prosecutors’ offices in, 80, 81; civil justice in, 68 –77, 69, 76; constitutional courts in, 88 – 89; criminal justice in, 79 – 84, 80 –84; judges and prosecutors in, 65 – 66, 66; judicial review of administration in, 78 –79, 78; judicial systems in, 6, 63 –92; labor law disputes in, 77–78, 78; legal culture in, 91–92, 91; litigation rates in, 69 –72, 69; police reports and prosecutions of crimes in, 82, 83, 83; prison system in, 84, 85; prosecutors in, 54n. 7; public opinion on efficiency and social legitimacy of justice system in, 29; symbolic reinauguration of courts in, 27; trust in courts in, 89 –90, 90; victim surveys in, 80, 80 Iyer, Krishna, 105 jan adalats, 124 Japan, 98, 99, 127n. 5 Jensen, Erik, 142, 373n. 51 judges: in Asia, 99; bribery of, in China, 212; in Chile, 230; in China, 11–12, 164, 166, 173 –77, 174, 185 – 86nn. 44 –45, 186n. 49, 186n. 51, 187n. 58, 187n. 60, 197, 203, 206 –14, 216n. 20, 216 –17nn. 23 –30; competence of, in China, 11–12, 206 –10, 213, 216 –17nn. 24 –27; and corruption in China, 211–13, 214; education of, in China, 175 –77, 186n. 49, 186nn. 52 –53, 208, 210, 213; education

Index of, in Mexico, 269, 271–72, 271, 273; in India, 99, 128n. 12; and judicial councils, 264 – 65; lifestyle of, in China, 217n. 29; and lok adalats (people’s courts), 108, 130n.40; in Mexico, 256 – 60, 266 –73, 269, 271, 282nn. 35 –36, 282 – 83nn. 40 – 45, 283n. 53, 284n. 60; promotion of compromise by, 118 –19; salaries of, 187n. 60, 273, 284nn. 61– 62, 373n. 57; societal accountability of, 262; and standard package of judicial reforms, 353 –54; status of, in China, 11–12; in United States, 99, 282n. 41; in Western Europe, 65 – 66, 66, 99 judicial capacity, 394, 395 –97 judicial councils, 264 – 65, 326nn. 29 –30, 350 judicial independence: in China, 11–12, 203 – 6, 213, 215 –16n. 18, 216n. 20; definition of, 31–32; essays on, 57n. 29; goverments’ ambivalence toward, 57n. 30; in Mexico, 251, 255 –59, 259, 264 – 65; and politicians, 280n. 23; and rule of law, 341–42; as variable in public opinion research, 31–32, 33, 34 judicial presidentialism, 265, 283n. 54 judicial reform. See justice systems and justice reform; and specific countries judicial review of administration: in China, 194, 200 –203, 203; in Western Europe, 78 –79, 78, 93n. 18 judicial systems. See justice systems and justice reform; and specific countries Justice Studies Center of the Americas, 312 justice symbol, 55n. 17 justice systems and justice reform: accountability of, 21–23, 54n. 1; case management and computerization, 358 –59; in Chile, 12 –14, 225 –37; in China, 10 –12, 164 – 81, 193 –214; cost-benefit analysis of, 13, 19n. 6; and courthouses, 358; economic analysis of, 329n. 61; empirical research on, 10, 164 – 81, 242, 273n. 5, 320 –21, 330nn. 62 – 63, 330n. 66, 361– 65; evaluation of, by public opinion polls, 4 – 6, 21–59; five waves of judicial reform, 345 –48, 370nn. 25 –26, 383; improvement of reform efforts, 361– 65; international assistance to Latin American

427

justice programs, 15 –16, 220, 290 –322; in Latin America generally, 220 –25; meaning of rule of law, 1–3; in Mexico, 14 –15, 240 –77; monitoring and evaluation of, 364 – 65; opportunity costs of justice reform, 317–18; overview of themes and lessons on, 3 –18; “publics” of, 4 –5, 23 –25, 25, 54n. 11, 55n. 14; purposes of, 184n. 32; social-benefits model of, 13, 19 –20n. 7; standard package of judicial reforms, 337, 345 –57; successes and failures of judicial reform, 16 –17, 357– 60, 373n. 56; in Western Europe, 6 –7, 63 – 92. See also rule of law; and specific countries juvenile justice, 83, 302, 304, 305, 327n. 39 Kassebaum, Gene, 111 Kelsen, Hans, 367n. 4 KGB, 28, 56n. 23 King, Gary, 330n. 62 Klarman, Michael, 369n. 20 Klitgaard, Bob, 374n. 62 Korea, 98, 99 Kothari, Smitu, 129n. 29 Krasner, Steve, 351 Kritzer, Herbert M., 127n. 5 Krugman, Paul, 385 Kushawaha, R., 129n. 23 labor law. See employment cases labor movement, 355 landlord–tenant disputes: in Western Europe, 70, 74 Lasswell, Harold, 58n. 37 Latin America: civil society in, 13, 228 –29; democratization in, 221; economic growth and development in, 221, 240, 404n. 9; factors affecting success of judicial reforms in, 222 –25; international assistance to justice programs in, 15 –16, 220, 290 –322; judicial reform in, 220 – 25; legal education in, 12 –13, 229 –30, 243, 275 –76, 346; ministries of justice in, 328n. 49; political parties in, 227–28. See also specific countries law schools. See education; legal education lawyers. See attorneys; legal professionals legal academics, 354 legal aid: budgets for, 85, 87– 88; in India, 106 –7, 129 –30nn. 31–34; in Mexico,

428 Index 266, 267; in Western Europe, 66 – 68, 67, 85, 87– 88 legal cultures, 7, 91–92, 91, 94n. 25, 167, 382, 405 – 6 legal domain and rule of law, 402 –3 legal education, 12 –13, 229 –30, 243, 275 – 76, 312, 325n. 25, 330n. 66, 346, 350, 354, 359 – 60, 374n. 60. See also education legal information, 360, 374nn. 63 – 64 legal professionals: definition of, 6, 92n. 2; in evaluation of justice systems, 6 –7, 23 – 24; in India, 122 –23; in Western Europe, 64 – 66. See also attorneys; judges legal systems, definition of, 340 –41. See also justice systems and justice reform legitimacy. See political legitimacy; social legitimacy of courts Levine, R., 19n. 4 Lex Mundi, 54n. 9 Li, Hao, 185 – 86n. 45 Li, Xiaobin, 166, 174, 175 liability, 73 –75 Lippman, W., 55n. 13 Lipset, S. M., 21, 55 litigation rates: in Asia, 97–98, 127–28nn. 7– 8; definition of, 68; in Ethiopia, 97; in India, 97–98, 127n. 7, 128nn. 9 –10; in Western Europe, 69 –72, 70, 97 Locke, John, 237n. 5 lok adalats (people’s courts): assessment of performance of, 7– 8, 113 –16, 126; Baxi on, 105 – 6, 129n. 28; beginning of, 109, 131n. 45; caseloads of, 109 –10, 131nn. 46 –47; characteristics of, compared with other forums for justice, 112; compared with panchayat system, 113, 115, 130n. 42; debased informalism of, 116, 117, 124; fact-finding and compensation awards by, 110 –13, 112; in India, 7– 8, 96 –127, 112, 144, 157n. 2, 356; and judges, 108, 130n. 40; legislation on, 113, 131nn. 50 –51; and monetary settlements, 111, 113, 115 – 16, 131n. 46, 131n. 54; motor vehicle accident cases in, 111, 113, 127n. 5, 131nn. 46 –48; names for, 130n. 41; operations of, 108 –113; origin of term, 129n. 28; overview of, 7– 8; public-interest litigation’s influence on, 106 – 8; purpose of, 110; questions on, 8, 114; record keeping for, 120

López Portillo, José, 249 Luhmann, Niklas, 226 Luxembourg, 29 M. C. Mehta v. Union of India, 158n. 7 MacMillan, John, 372n. 44 Magaloni, A. L., 280n. 25 Magaloni, Beatriz, 252 –53 Malaysia, 98, 99, 355 Manion, Melanie, 182 – 83nn. 11–12 Maoist Communist Centre (MCC), 124, 133n. 71, 133n. 73 Mathur, S. N., 129n. 25 MCC. See Maoist Communist Centre MDBs. See multilateral development banks media, 38, 58 –59nn. 36 –39 Media: A Guide for Judges, 58n. 36 mediation, 170, 198 –99, 212, 375n. 72 medical malpractice, 161n. 38, 215n. 7 Mendelsohn, Oliver, 98, 107– 8 Menkel-Meadow, Carrie, 151, 152, 158n. 13 Messick, Richard, 19nn. 3 –4, 375n. 71 Mexico: abstract review of legislation by Supreme Court in, 251, 280n. 24; access to courts in, 266; accountability of judicial system in, 259 – 62; ADR (alternative dispute resolution) in, 265; amparo ( judicial review) in, 241–42, 254, 255, 268, 274, 278n. 3, 278n. 9, 283n. 50, 414n. 9; assessment of judicial reform in, 255 –73, 324n. 18; attorneys in, 245 –46, 275, 276, 279n. 14; bankruptcy in, 261; bar associations in, 246, 276, 279n. 14; budget for judicial system in, 240 –41, 242, 258 –59, 259, 278n. 4, 282nn. 36 –39, 283n. 46; challenges and perspectives on judicial reform in, 273 –77; Chiapas rebellion in, 251, 254; corruption in, 245, 279n. 11, 283n. 45; Council of the Federal Judiciary in, 241, 245, 247, 260 – 61, 265, 269, 270, 283n. 45, 284nn. 58 –59; criminal justice in, 244; demise of authoritarian rule and paradox of judicial reform in, 250 –53; democratization in, 243; dismissal rate of complaints in, 280 – 81n. 25; district and circuit courts and judges in, 262 – 64, 263, 269 –72, 269, 271, 283n. 44, 283n. 50, 284n. 60; duration of proceedings in, 265 – 66; economic policies

Index of, 14, 249 –50, 278n. 1; education of judges in, 269, 271–72, 271, 273; efficiency of judicial system in, 262 – 66, 263; electrical power and private utilities in, 253, 281nn. 28 –31; empirical research on judicial reform in, 242, 278n. 5; employment in, 248, 248; federal courts in, 262 – 64, 263, 269 –72, 269, 271, 274 –75, 303; Federal Electoral Tribunal in, 246; Federal Law on Transparency and Access to Public Governmental Information in, 15, 261; federal tribunals in, 280n. 20; future judicial reforms in, 15; and General Agreement on Tariffs and Trade (GATT), 249; growth in number of courts in, 262 – 64, 263; illiteracy in, 248, 248; impeachment of Supreme Court judges in, 282n. 40; international assistance for judicial reform in, 298, 311; judges in, 256 – 60, 266 –73, 269, 271, 282nn. 35 –36, 282 – 83nn. 40 –45, 283n. 53, 284n. 60; judicial councils in, 264 – 65; judicial independence in, 251, 255 –59, 259, 264 – 65; judicial presidentialism in, 265, 283n. 54; judicial reform in, 14 –15, 240 –77; judicial reform of 1987 in, 254 –55, 268; judicial reform of 1994 in, 244 –55, 268, 269, 274; judicial reform of 1999 in, 255, 269; judicial reforms between 1917 and 1987 in, 254; legal aid in, 266, 267; legal education in, 243, 275 –76; local judiciaries in, 247; and NAFTA (North American Free Trade Agreement), 249, 250, 251, 408; ombudsman for consumer affairs in, 283n. 55; Organic Law of the Federal Judiciary in, 260, 282n. 41, 282n. 43; overview of, 14 –15; PAN (Partido Acción Nacional) in, 244, 245, 253, 260, 278n. 8, 281n. 31; population of, 248, 248; PRD (Partido de la Revolución Democrática) in, 244, 245, 253, 278n. 8, 281n. 31; presidential powers in, 277– 78n. 1; PRI (Partido Revolucionario Institucional) in, 15, 245, 250 –51, 253, 277, 278n. 6, 280n. 22, 281n. 31; public defenders in, 266, 267; salaries of judges in, 273, 284n. 62; social indicators in, 248, 248; state courts and judges in, 247, 256 – 59, 273, 274 –75, 282n. 34, 283n. 53, 284n. 62, 284n. 64, 327n. 37; Supreme

429

Court in, 14, 15, 240, 241–42, 245 –47, 251–56, 259 – 62, 267– 69, 267, 278n. 2, 278 –79nn. 9 –13, 279n. 15, 280n. 19, 281nn. 27–29, 281– 82nn. 32 –33, 282nn. 40 –41, 283n. 45, 283n. 49, 284nn. 56 – 57; Visitaduría Judicial in, 260; workload of federal courts in, 263 – 64, 263; and WTO, 414n. 9 ministries of justice, 328n. 49 Misra, Ranganath, 117, 148 –49, 161n. 38 modernity, 368n. 10, 384 Montes, Ana, 327n. 38 Moog, Robert, 98, 111, 114, 118, 128n. 12, 131n. 47 Moon, Penderel, 100 Morgan Stanley v. Kartik Das, 151 motor vehicle accident cases, 111, 113, 127n. 5, 131nn. 46 –48, 215n. 9 motor vehicle theft, 80, 80, 82 multilateral development banks (MDBs): “big loan” incentives of, 350 –52, 374n. 65, 384; and criminal justice projects, 371n. 35; and economic justification of judicial reform, 345, 347; investment in judicial-reform activities by, 1, 2, 19n. 3, 293; and legal education, 350; loans and grants by, 292, 293, 294, 323n. 9; and organizational politics, 312 –15; and political economy of donor assistance, 350 – 52; reports by, 291, 323n. 5; and rule of law, 347; and United Nations Development Program (UNDP), 304. See also World Bank NAFTA. See North American Free Trade Agreement National Center for State Courts, 57n. 34, 58n. 36, 59n. 41, 306, 328n. 44 National Democratic Institute, 327n. 42 National Endowment for Democracy, 327n. 42 National Law School of India University, 360 National University (UNAM), 245, 254 –55, 271, 272 Naumann Foundation, 328n. 46 Naxalites, 124 –25, 133n. 70 Negrete, Layda, 280n. 25 Nelken, David, 94n. 25 Nepal, 97, 356, 372n. 50, 374n. 59

430 Index Netherlands, The: administrative disputes in, 368n. 9; appeal courts and highest courts in, 75 –76, 76; assessment of judicial system in, 54n. 10; attorneys in, 64 – 65, 64; budget for judicial system in, 84 – 88, 85, 94nn. 20 –21; caseload of prosecutors’ offices in, 80, 81; civil justice in, 68 –77, 69, 76, 92n. 5; criminal justice in, 79 – 84, 80 –84; debt collection in, 73; divorce in, 368n. 9; judges and prosecutors in, 65 – 66, 66; judicial review of administration in, 78 –79, 78, 93n. 18; judicial systems in, 6, 63 –92; labor law disputes in, 77–78, 78; legal aid in, 66 – 68, 67, 87; legal culture in, 91–92, 91; litigation rates in, 69 –72, 69; police reports and prosecutions of, in Western Europe, 81– 83, 82, 83; prison system in, 84, 84, 85 – 86, 85, 94n. 20; public opinion on efficiency and social legitimacy of justice system in, 29; tort and liability in, 93n. 12; trust in courts in, 89 –90, 90; victim surveys in, 80, 80 NGOs. See nongovernmental organizations Nicaragua, 304 Noelle-Neumann, E., 36 nongovernmental organizations (NGOs), 106, 149, 292 –95, 298, 305, 309, 311, 328n. 43, 390, 412 North, Douglass, 223, 343, 389 North American Free Trade Agreement (NAFTA), 249, 250, 251, 384, 408, 410 Norway, 92n. 4, 305 nyaya panchayats, 104 –5, 112, 113, 115, 120, 129nn. 24 –27, 144, 158n. 6 OAS (Organization of American States), 220 O’Brien, David M., 57n. 29 O’Brien, Kevin, 183n. 14 OECD, 278n. 4 Olson, Mancur, 356, 372n. 49 OPDAT. See Overseas Prosecutorial Development Assistance and Training opinion polls. See public opinion polls Organization of American States (OAS), 220 “organized hypocrisy,” 351 Overseas Prosecutorial Development As-

sistance and Training (OPDAT), 294, 310 –11 ownership and rule of law, 399 –401 Pakistan, 19n. 1, 357, 362 – 63, 370n. 23, 374n. 65 PAN. See Partido Acción Nacional Panama, 302, 304, 305, 325n. 23 panchayats, 7, 103 – 6, 112, 113, 115, 125, 129nn. 22 –27, 130n. 42, 363 Pandley v. Union of India, 131n. 50 Paraguay, 329n. 60 Partido Acción Nacional (PAN), 244, 245, 253, 260, 278n. 8, 281n. 31 Partido de la Revolución Democrática (PRD), 244, 245, 253, 278n. 8, 281n. 31 Partido Revolucionario Institucional (PRI), 15, 245, 250 –51, 253, 277, 278n. 6, 280n. 22, 281n. 31 Pastor, Santos, 54n. 10, 356 Paz Ciudadana (Citizen Peace) Foundation, 13, 229, 355 PBLs. See policy-based loans Peerenboom, Randall, 167, 339, 367n. 5 Pei, Minxin, 182n. 11 penetration: and rule of law, 404 –5 People’s Tribunals (PTs), 179 – 80, 187– 88n. 67 Peoples’ Union for Democratic Rights v. Union of India, 107, 130n. 35 Peru, 27, 28, 228, 298, 302, 304, 324n. 18, 328n. 46, 328n. 48, 329n. 60, 330n. 64 pharmaceutical industry, 368n. 12 piracy laws, 133n. 67 Poland, 355 police: in China, 195, 196, 215n. 9; clearance rates of, 81– 83, 82, 83; international assistance for work with, 294, 324n. 14 policy-based loans (PBLs), 351, 372nn. 40 – 41 political economy: definition of, 19n. 5; of donor assistance to Latin America, 306 – 16, 350 –52; and legal and judicial reform, 16 –27, 225 –30; and rule of law, 382 – 83 political legitimacy, 55n. 16 political parties, 227–28 political system: competition and cooperation in, 206; and concern for the future,

Index 226 –27; judicial reform as political process, 226 –30; and political parties, 227– 28 Population Reference Bureau, 127n. 4 Portugal: appeal courts and highest courts in, 75 –76, 76; attorneys in, 64 – 65, 64; budget for judicial system in, 84 – 88, 85, 94n. 24; caseload of prosecutors’ offices in, 80, 81; civil justice in, 68 –77, 69, 76; constitutional courts in, 88 – 89; criminal justice in, 79 – 84, 81–84; judges and prosecutors in, 65 – 66, 66; judicial review of administration in, 78 –79, 78; judicial systems in, 6, 63 –92; labor law disputes in, 77–78, 78; legal aid in, 66 – 68, 67; legal culture in, 91–92, 91; litigation rates in, 69 –72, 69; police reports and prosecutions of crimes in, 82, 83, 83; prison system in, 84, 85; public opinion on efficiency and social legitimacy of justice system in, 29; symbolic reinauguration of courts in, 27; trust in courts in, 89 –90, 90 poverty-focused judicial reform, 348, 354 – 55, 371n. 38 PRD. See Partido de la Revolución Democrática PRI. See Partido Revolucionario Institucional prison system, 83 – 86, 84, 85, 94n. 20 prisoner’s dilemma, 223, 321 procedural justice, 57n. 31 product-liability cases, 58n. 38 prosecutors: caseload of, in Western Europe, 80, 81; as operators of justice system, 23, 54n. 7; public prosecutors, 231– 32, 306; in Western Europe, 65 – 66, 66, 80, 81 Provine, Doris Marie, 127n. 5 public attorneys, 54n. 8 public defenders, 266, 267, 306 public good, 234 public opinion, definition of, 59n. 40 public opinion polls: and accessibility of justice system, 32, 34; and accountability of courts, 21–23, 54n. 1; and accountability of justice system, 33, 35; criticisms of, 24 –25, 55n. 13; and effectiveness of justice system, 5, 25 –26, 34; and efficiency of justice system, 5, 25 –31, 28, 29, 33 –

431

34; for evaluation of justice systems, 4 – 6, 21–59; expert evaluation versus, 35 –38, 36; and impartiality of justice system, 32 – 33, 35; and judicial independence, 31–32, 33, 34, 57nn. 29 –30; overview of, 4 – 6; protocol for, 31–35; and “publics” of justice system, 4 –5, 23 –25, 25, 54n. 11, 55n. 14; questionnaire on social images of systems of justice, 40 –53; and social legitimacy of justice system, 5, 25 –35, 28, 29; in Spain, 5, 29, 30 –31, 30; and strengthening the rule of law, 5 – 6, 38 – 40; technical problems with, 38; typology of social attitudes toward justice system, 28 –31, 29 –31; uses of, 5 – 6, 35 –40; and voting, 24 public policy: in Chile, 230 –34 public sphere, 228 public-interest litigation, 106 – 8, 117–18, 132n. 60 Putnam, R., 228 Qi, Shuyu, 178 questionnaire on social images of systems of justice, 40 –53 Rae, S. F., 59n. 40 Ramseyer, J. Mark, 280n. 23 RAND study, 362, 375n. 69 Rankin Committee Report, 19n. 1, 157n. 4 Rao, M. J., 127n. 3 rape, 81– 82, 82 Rawls, John, 226 resistance to change, 223 Resnick, Judith, 117 results indicators, 293, 295, 318, 324 –25n. 20 Revenshaw, 96 Rheinstein, Max, 21 robbery, 80, 80, 81, 82 Rocha Díaz, Salvador, 279n. 13 Romania, 55n. 18 Rosenberg, Gerry, 344 –45, 369n. 18, 369n. 20, 371n. 33 Ruhlin, Charles, 93n. 10 rule of law: alternative lines of approach to, 405 –13; and autonomy, 401–2; and baseline data in diverse institutional settings, 363 – 64; and case management and com-

432 Index puterization, 358 –59; categories of ruleof-law programs, 394; and competition in provision of law services, 406 –13; and constitutional courts, 394 –95, 397–99; and courthouses, 358; demands for, and increased demands on courts, 343 –45; and democracy, 343, 388 –90; and development circles, 142; and development theory, 382, 385 –94; difficulties in propagating through court-centric programs, 336; and economic growth, 343; elements and analysis of record of, 394 –405; empirical approach to, 337, 361– 65; and five waves of judicial reform, 345 –48, 370nn. 25 –26, 383; and former Soviet Union, 365; growing momentum for, 342 –43; and high development theory, 385 – 88; and human rights, 342; and improvement of reform efforts, 361– 65; and incentives to restructure, 406 –11; and judicial capacity, 394, 395 –97; and legal culture, 59n. 42, 405 – 6; and legal domain, 402 – 3; and legal information, 360, 374nn. 63 – 64; meaning of, 1–3, 142, 338 –42, 367nn. 2 –4; and modernity, 368n. 10; and monitoring and evaluation, 364 – 65; overview of themes and lessons on, 3 –18, 366; and ownership, 399 –401; and penetration, 404 –5; and political economy, 382 – 83; and refocusing reform on nonlegal institutions, 411–13; reforms based on, 142 –43; and standard package of judicial reforms, 337, 345 –57; strengthening of, and public opinion polls, 5 – 6, 38 –40; successes and failures of judicial reform, 16 –17, 357– 60, 373n. 56; thick and thin definitions of, 7– 8, 338 –42, 382; and training programs, 359 – 60 Russell, Peter H., 57n. 29 Russia, 27, 28, 56n. 24, 365, 369n. 16 Sabatino, Jack M., 150 Salinas de Gortari, Carlos, 250, 284n. 56 Sánchez Galindo, Arianna, 252 –53 Sanders, Joseph, 127n. 5 Schneider, W., 21 Scott, W. Richard, 370 –71n. 29 sector assessment, 309 Selected Cases from People’s Courts, 167 Selected Important Trial Cases of China, 167

Shaiko, Ronald, 133n. 68 shakhas, 125 Sharmma, Jitendra, 132n. 61 Shavell, Steven, 235, 326n. 32 Shen, Hongwei, 170, 183n. 21 Shetreet, S., 57n. 29, 184n. 32 Shourie, Arun, 108, 126 Shri K.K. Das v. M/s. Titan Industries Ltd., 160n. 32 Singapore, 373 –74n. 58 SLADE (Studies in Law and Development), 54n. 10, 340 Slovakia, 55n. 18 social action litigation. See public-interest litigation social legitimacy of courts, 5, 25 –35, 28, 29, 55n. 16 social value, 231, 238n. 8 social-benefits model, 13, 19 –20n. 7 SOEs. See state-owned enterprises South Africa, 37, 414n. 8 South Korea, 99 Soviet Union, former, 28, 56n. 23, 324nn. 15 –16, 365. See also Russia Spain: appeal courts and highest courts in, 75 –76, 76; assessment of judicial system in, 54nn. 9 –10, 54 –55n. 12; attorneys in, 64 – 65, 64; budget for judicial system in, 84 – 88, 85, 94n. 24; caseload of prosecutors’ offices in, 80, 81; civil justice in, 68 – 77, 69, 76; constitutional courts in, 88 – 89; criminal justice in, 79 – 84, 80 –84; international assistance on judicial reform by, 305 – 6; judges and prosecutors in, 65 – 66, 66; judicial review of administration in, 78 –79, 78, 93n. 18; judicial systems in, 6, 63 –92; labor law disputes in, 77–78, 78; legal aid in, 66 – 68, 67; legal culture in, 91–92, 91; litigation rates in, 69 –72, 69; media coverage of courts in, 58 –59n. 39; police reports and prosecutions of crimes in, 82, 83, 83; prison system in, 84, 85; public opinion on justice system in, 5, 29, 30 –31, 30; symbolic reinauguration of courts in, 27–28, 56n. 21; trust in courts in, 89 –90, 90; victim surveys in, 80, 80 special jurisdiction courts: in Western Europe, 77–79 staggered conditionality in loans, 305

Index standard package of judicial reforms: absence of broader, well-organized constituencies from, 355 –57; and ADR and special courts, 356; and baseline data in diverse institutional settings, 363 – 64; and case management and computerization, 358 –59; and citizens, 354 –55; and civil society organizations, 354, 355; constituencies for and against, 352 –57; and consultants, 352, 354, 371n. 37; and courthouses, 358; empirical approach to, 361– 65; and history of rule-of-law reform, 345 –48, 370nn. 25 –26, 383 – 84; improvement of, 361– 65; and judges and lawyers, 353 –54; and legal academics, 354; and legal information, 360, 374nn. 63 – 64; and lip-service interventions, 350; and modest-resource interventions, 349 – 50; and monitoring and evaluation, 364 – 65; and political economy of donor assistance, 350 –52; and problems with collective action, 356; and resource-intensive interventions, 349; and substitutes for formal legal institutions, 356; three levels of engagement in, 348 –49; and training, 359 – 60 Stanford University, 340 state-owned enterprises (SOEs), 200, 407 Stephenson, Matthew C., 181n. 2, 341 Sternlight, Jean, 160n. 29 stiftungen (development foundations), 149, 228n. 46, 292, 307– 8 students, 355 Studies in Law and Development (SLADE), 54n. 10, 340 Su, Li, 182n. 6 sunk-cost auction, 7, 101, 128n. 17 Supreme Court. See specific countries Sweden, 29, 97, 305 symbolic reinauguration of courts, 26 –28, 56n. 20, 59n. 42 Taiwan, 98, 99, 183n. 13 Tamanaha, Brian, 369n. 19 Tan, Shigui, 185n. 39 Tate, C. N., 57n. 29 tenant–landlord disputes, 70, 74 Texas, 54n. 9 Tinker Foundation, 305 Tocqueville, Alexis de, 228

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tort law, 73 –75, 93n. 12, 121–22, 132nn. 64 – 65, 198 township and village enterprises (TVEs), 407, 411 traffic accidents, 111, 113, 127n. 5, 131nn. 46 –48, 215n. 9 traffic tort, 70, 74 tragedy of commons, 226 training. See education Transparency International, 32, 57n. 32, 376n. 76 tribunalization, 8 –9, 144 tribunals: in India, 8 –9, 102, 128nn. 19 –20, 144, 158n. 8; in Mexico, 246, 280n. 20; People’s Tribunals in China, 79 – 80, 187– 88n. 67 Trubeck, David, 370n. 25 True Believer (Hoffer), 18 true believers, 28 trust in justice system, 26, 36, 55n. 17, 57n. 34, 89 –90, 90 Tsintsadze, I., 56n. 23 TVEs. See township and village enterprises Ukraine, 365 UNAM. See National University UNDP. See United Nations Development Program Union Carbide Corp. v. Union of India, 116 – 17 Union Carbide Corporation, 116 –18 United Kingdom. See England and Wales United Nations, 283n. 45, 292, 304, 309, 347 United Nations Development Program (UNDP), 292, 304, 309, 327n. 41, 347, 376n. 76 United Nations Latin American Institute for Crime Prevention and Treatment of the Delinquent (ILANUD), 310, 312, 328n. 50 United States: and antiscientific bias in legal culture, 320 –21; assessment of federal judicial performance in, 54n. 9; and assistance to China, 164 – 65, 181– 82nn. 2 –3; Best Practices Institute in, 59n. 41; biased media coverage of courts in, 58n. 38; Civil Justice Reform Act in, 362; civil rights movement in, 369n. 20; conference on trust in justice system in, 33, 57n. 34;

434 Index corporate law in, 409; courts in, 171, 184n. 30; credit card collection in, 93n. 10; criminal justice in, 127n. 5; education in, 19n. 2; international assistance on judicial reform from, 305, 306, 327n. 42, 388; judges in, 99, 282n. 41; liability in, 73; and NAFTA, 249, 250, 408, 410; Supreme Court in, 184n. 30, 344, 369n. 20, 371n. 33 U.S. Agency for International Development (USAID): and alternative dispute resolution methods, 157n. 1; amounts of grants by, 19n. 3, 295; and bureaucratic politics in the shaping of bilateral programs, 310 – 12; and Chile’s judicial reform, 13, 229; and due process criminal justice codes, 328n. 45; and external incentives for judicial reforms, 373n. 54; Global Democracy Center of, 308 –9, 326n. 33; goals and objectives of, 295, 345, 347; and Latin American justice programs, 15, 295 –98, 302, 307–12; management of grants by, 294, 352, 371n. 37; project evaluation by, 301, 326n. 31, 351; and reasons for lack of progress in judicial reform, 297–98; reports by, 291, 323n. 4; results framework of, 293, 295, 318, 324 –25n. 20; types of projects supported by, 295 –97, 347, 350, 370n. 22, 371n. 35 U.S. General Accounting Office (GAO), 365, 373n. 54 U.S. Information Agency (USIA), 310 U.S. Office of Management and Budget, 376n. 76 USAID. See U.S. Agency for International Development USIA. See U.S. Information Agency Vallinder, T., 57n. 29 Velasco government, 228 Venezuela, 228, 298, 299 –300, 326n. 30, 330n. 64, 342, 360, 374n. 63 Versailles, Mary, 131n. 48 victim surveys, 79 – 80, 80 Vietnam, 372n. 44 voting, 24 Wales. See England and Wales Waltman, Jerold L., 184n. 32 Wang, Chenguang, 165, 187n. 58

Wang, Liming, 174 –75, 185 – 86n. 45, 187n. 58 Washington, George, 184n. 30 Washington Consensus, 347, 370n. 28 Weber, Max, 343, 389 Weng, Qibin, 187n. 63 West, Robin, 367n. 3 West Germany, 27, 90 –91, 90 –91, 93n. 8. See also Germany Western Europe: appeal courts and highest courts in, 75 –76, 76; attorneys in, 64 – 65, 64; budgets for judicial systems in, 84 – 88, 85, 94nn. 20 –24; civil justice in, 68 –77, 68 –70, 76; constitutional courts in, 88 – 89; court fees in, 86; criminal justice in, 79 – 84, 80 –84; debt collection in, 70 –73, 70, 92n. 7; demand and supply factors of civil litigation, 76 –77; divorce and related family matters in, 70, 74 –75, 93n. 13; fines imposed by courts in, 87; growth rates of justice systems in, 63; judges and prosecutors in, 65 – 66, 66; judicial independence in, 31; judicial review of administration in, 78 –79, 78, 93n. 18; judicial systems in, 6 –7, 63 –92; juvenile justice system in, 83; labor law disputes in, 77–78, 78; landlord–tenant disputes in, 70, 74; legal aid in, 66 – 68, 67, 85, 87– 88; legal cultures in, 7, 91–92, 91; legal profession in, 64 – 66; litigation rates in, 69 –72, 70, 97; mobilization of and avoidance of courts in, 72 –73; police reports and prosecutions of crimes in, 81– 83, 82, 83; prison systems in, 83 – 86, 84, 85, 94n. 20; public expenditures in, 86; special jurisdiction courts in, 77–79; tort and liability in, 73 –75; trust in courts in, 89 –90, 90 Wike, Jonathan, 132n. 65 Williamson, John, 370n. 28 Willis, Paul, 19n. 2, 372n. 38 Wollschläger, Christian, 76, 97–98, 127nn. 6 –7 Woodruff, Christopher, 372n. 44 Woolf, Harry, 22 World Bank: amounts of loans and grants by, 298, 299; assessment of, 300 –302, 329n. 58, 351–52, 371n. 37; “budgetized” lending by, 293, 314, 323n. 10; compared with Inter-American Develop-

Index ment Bank (IDB), 303, 327n. 35, 351; Comprehensive Development Framework of, 357; and conditionality in loans, 314 –15, 318; and development of instruments constructing aggregate measures, 376n. 76; goals of, 373n. 53; and Latin American justice programs, 15 –16, 237n. 1, 240, 298 –302, 307, 308, 312 –15, 325 – 26nn. 26 –27; and organizational politics, 312 –15, 328n. 51; Public Sector Unit of, 308 –9; reports by, 323n. 5; and rule of law, 347, 348; and staggered conditionality in loans, 315; types of projects supported by, 298 –99, 360, 371n. 35, 371n. 38 World Trade Organization (WTO), 164, 165, 182n. 3, 384, 408, 414n. 9 Wu, Zeyong, 180 Wuhan University’s Center for the Protection of the Rights of Disadvantaged Citizens, 181n. 3

Xue, Jiangwu, 186n. 54 Yearbook of People’s Courts, 166 Yoo, John C., 133n. 67 Yuan, Shuhong, 178 Yugoslavia, 355 Zedillo, Ernesto, 244 –45, 274, 278n. 3, 278n. 6, 279n. 9, 281n. 31 Zepeda Lecuona, Guillermo, 278n. 5 Zervos, S., 19n. 4 Zhang, Weili, 176 Zhang, Wusheng, 180 Zhang, Yongling, 186n. 54 Zhao, Junru, 176 Zhao, Xiaoli, 182n. 6, 187– 88n. 67 Zhao, Ziyang, 184n. 34 Zhu, Suli, 179 Zuckerman, Adrian, 353

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