The Rise of Judicial Self-Government: Changing the Architecture of Separation of Powers without an Architect

Project Information

JUDI-ARCH

Grant agreement ID: 678375

DOI

10.3030/678375

Project closed

EC signature date 31 March 2016

Start date 1 September 2016

End date 31 August 2021

Funded under

• EXCELLENT SCIENCE - European Research Council (ERC)

Total cost

€ 1 499 625,00

EU contribution

€ 1 499 625,00

Coordinated by

Masarykova univerzita
Czechia

Periodic Reporting for period 4 - JUDI-ARCH (The Rise of Judicial Self-Government: Changing the Architecture of Separation of Powers without an Architect)

Reporting period: 2021-03-01 to 2021-08-31

Summary of the context and overall objectives of the project

The aim of the project “The Rise of Judicial Self-Government: Changing the Architecture of Separation of Powers without an Architect” (JUDI-ARCH) was to understand the process of empowerment (and more recently disempowerment) of judges in judicial governance and to analyse its impact on domestic and supranational judiciaries.

After WWII, many European states transferred decision-making powers regarding court administration and judges’ careers from political bodies to special organs in which judges have had a major say. Judicial councils and other bodies of judicial self-governance (JSG) spread particularly quickly during the accession of Central and Eastern European countries to the European Union.

However, while the unprecedented rise of courts’ decision-making power has stirred up vibrant academic discussion, the rise (and fall) of JSG and its effects remained under-researched, as the traditional normative scholarship was not able to capture them.

JUDI-ARCH filled this gap and addressed the implications of this phenomenon for the “new” as well as “old” EU member states. JUDI-ARCH’s central research question was: how has the rise of JSG affected the functioning of judiciaries in Europe and what implications has it for the concept of separation of powers? This question was unpacked in 4 interrelated research aims: 1) to provide a richer understanding of JSG in Europe, 2) to find out what the actors involved in the daily business of JSG think about the strengths and weaknesses of JSG, 3) to explore how much power judges hold in individual models of JSG (ministerial, judicial councils, court service etc.), and 4) to account for how JSG has affected the separation of powers.

In this respect, JUDI-ARCH provided a novel understanding of the separation of powers, introducing a complete reconceptualization of JSG and judicial councils. The project argues that in order to secure sufficient checks and balances, if established, judicial councils should be institutionalised as a fourth branch, independent of all three other branches of governmental power, and adhering to principles of functional, institutional and personal incompatibility. The composition of judicial councils (both members and the actors who select them) should be more open and provide sufficient plurality of relevant social groups and actors: judges, politicians, as well as experts and the wider public.

Work performed from the beginning of the project to the end of the period covered by the report and main results achieved so far

Following the 4 research aims, the JUDI-ARCH project was divided into 4 interrelated work packages (WPs), which focused on conceptual (WP1), qualitative socio-legal (WP2), quantitative (WP3) and theoretical issues (WP4).

WP 1 created a novel conceptualization of JSG, and resulted in a special issue of the German Law Journal entitled “Judicial Self-Government in Europe” (vol. 19, no. 7, 2018), which provided a comprehensive and up-to-date comparative account of major JSG models and issues across Europe. The special issue covered 12 national jurisdictions, which represent all existing models of judicial self-governance: a strong judicial council model (France, Italy, Romania, Slovakia), a moderate judicial council model (Spain, the Netherlands, Poland, Slovenia), a Court service model (Ireland) and a Ministry of Justice model (Germany, the Czech Republic). It also addressed 2 supranational courts and a number of crucial cross-cutting issues, such as judicial selection, the role of court presidents and a pioneering article analysing JSG at international courts. The special issue made a considerable impact in terms of readership both within the research field and in practice, being referred to in Opinions of the Advocate General of the CJEU in cases addressing the Polish constitutional crisis.

In order to systematise the scope of actors and competences conceptualised in WP1, we constructed the de jure JSG index as a main result of our WP3. The index seeks to capture the amount of power held by judges in various institutional models of JSG. Following the completion of the index, WP3 explored the effects of the institutional organization of JSG on principles of judicial independence. A set of articles published in leading journals showed that even ministerial models delegate significant powers to judges and that more decentralised regulation of JSG makes the field less susceptible to capture from outside (political interferences) or inside (judicial oligarchies).

A major innovation in our approach was the integration of comparative legal perspectives with sociological and political science approaches. On the basis of over a hundred interviews with insiders (judges, politicians and lawyers), the WP2 explored how elites in six old and new EU member states perceive the functioning, positive and negative, and how they envisage improvements in the JSG system. Combined with the overarching theoretical WP4, we analysed the different perceptions of judicial councils from the perspective of the separation of powers (Kosař et al. European Visions of Judicial Self-Governance, manuscript under review in CUP). WP4 also reacted to some of the most recent challenges to the separation of powers, such as the rise of populism and emergency governance following the Covid-19 outbreak, and provided for their better understanding by studying them through the prism of JSG and the separation of powers.

Progress beyond the state of the art and expected potential impact (including the socio-economic impact and the wider societal implications of the project so far)

By exploring the effects of JSG on the functioning of the judiciary and on the separation of powers, the JUDI-ARCH team pushed the boundaries of the existing scholarship and practice in several ways:

First, the JUDI-ARCH project significantly contributed to the field by providing a novel complex conceptualization of JSG, broadening the scope of the main actors. While, previously, scholars had predominantly focused on judicial councils, the extensive comparative inquiry of the project showed that JSG is a much broader phenomenon encompassing a number of other bodies (such as court presidents, judicial appointments commissions and disciplinary panels) with varied degrees of judicial participation.

Second, the JUDI-ARCH project contributed by providing crucial exploratory work, new qualitative and quantitative data, and new theoretical findings. In particular, the project probed into what the actors involved in daily JSG practice actually think about their JSG systems, conducting over a hundred qualitative interviews with judges, politicians and lawyers who participate in JSG practice. Based on this rich empirical material, the JUDI-ARCH project shed light on what formal and informal factors affect the varying perceptions of JSG across countries and professions.

Third, the input gained from qualitative interviews brought a theoretical contribution into the understanding of the placement of judicial councils in the system of separation of powers. It demonstrated that domestic political and judicial elites differ in their perceptions of judicial councils depending on whether they see them as representatives of judicial power, a platform bringing together the interest of judicial, executive and legislative power, or a separate, regulatory institution which could be conceptualized as an independent fourth branch. Besides this qualitative material, the JUDI-ARCH team constructed the JSG index, which traces the actual power of judges across various JSG dimensions. This is an important breakthrough in the field as the index allows for more fine-grained and less formalistic comparisons of JSG systems.

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