To organize the massive number of scholarly studies about justice reforms of the last thirty years, the review was structured around the basic set of policy issues that most authors in the fields of law, political science and economics have detected around the reforms’ purposes and processes. As the objectives embodied in the legal instruments (constitutions or high-level legislation) that contain the reform are supposed to be consistent with the common values of democratic polities (e.g. judges’ independence and universal access for citizens), the review preferred to look into the issues that deal mostly with the economic rationale of the reform (its expected costs and benefits) and the political processes for the reform to happen (the decision-makers and the formal/informal rules-of-the game they follow).
As noted above, the high-level legal objectives that the court systems should pursue are commonly reiterated in any modern justice reform proposal. The courts are supposed to provide independent dispute resolution services accessible to all citizens, to ensure effective protection of individual rights and freedoms against government encroachment. However, to that end they need to receive appropriate resources, manage them efficiently and provide prompt response to societal demands. Any mismatch between the high-level societal goals and the performance of the court system triggers calls for reforms designed to close the gap by strengthening the institutions or improving the services they deliver (
The complexity of a modern justice apparatus and the rapid change in social demands from the courts requires that any reform proposal focuses only on a few institutional strengthening and service delivery reforms where the underpinnings of the performance improvements sought by the reformers are traceable so as to track performance improvement patterns. This approach is consistent with the recent reform experience of most countries where the key political decisions typically: (i) Select a few high-level objectives to improve court performance; and (ii) identify institutional/procedural changes that are conducive to achieve the expected improvements. Holistic approaches are becoming rare so that most reformers prefer to look into particular reforms dealing with groups of courts (e.g. civil or criminal) or geographical subdivisions (states or provinces).
Lastly, measuring the “success” of judicial reforms is acknowledged in the literature as one of the most difficult tasks. Change may happen, but the levels of “success” can be quite varied depending on the measurements selected. For instance, the metrics of particular Judiciaries and international organizations are different, while civil society/private sector organizations tend to set a very high bar inspired by OECD countries standards.
The main political trigger of justice reform proposals is related to the peculiar challenge that judicial institutions confront: The courts have improved services quality and quantity (as measured in the four areas identified above), but the citizens’ demands have increased even more. In other words: Court performance improvements have not met the increased citizens’ expectations. New generations of users are more demanding than the old: They do not accept excuses based on limited resources but feel entitled to receive the best services at the lowest cost and within the shortest timeframes.
Two types of political processes develop around this reform cycle: (A) The large country Politics (uppercase
Traditionally, the courts’ objectives have been described in terms of high-level normative principles (“achieve justice or fairness”). In Roman Law the purpose of the courts was “to render everyone his due.”
The seminal decision about these normative principles may be the result of a political process but is embodied in a legal document such as the constitution or basic/organic law of the country. For example, the U.S. Declaration of Independence mentions the “Laws of Nature” of Locke and the Constitution vests the judicial power “in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
For modern scholars, the rule of law is a concept distinct but closely associated with democracy, both key pillars of modern states. More than a legal doctrine, it is the basis of a fair and just society, a guarantee of responsible government, a contributor to economic growth and a system for securing peace and cooperation.
However, in spite of the common principles, justice institutions are established with unique structures and practices, after long historical processes within a national context. Basic adjudication functions are similar, but significant differences remain across countries. Legal systems in Continental Europe and Civil Law countries in Africa, Asia, and Latin America share similar court frameworks. The same happens with systems belonging to the English Common Law family. However, even within the same legal traditions different national organizations and practices have developed.
From a political science point of view, judicial institutions are a small part of the complex web of networks that overlay official governance structures with political bargains. The study of how these networks behave is critical to determine whether reformers can make progress. Judicial reform is part of a political process in which the internal leaders and operators of the judicial bureaucracy interact with external leaders in the government, and influencers in the private sector, civil society, or academia (
The general literature on bureaucratic behavior
A strong internal operators’ group is usually located in the middle-to-low levels of justice institutions and comprises unionized career officials or organizations of frequent users (for instance, litigants’ associations). For this group the institutions are generally working well, and the only change required is for additional resources to be allocated to continue delivering more of the same services, in essence more budget and personnel that would help them to continue “business-as-usual.” This group has a very long-term horizon that ensures opposition will be resilient and may block reform attempts. This group’s knowledge of the inner workings of the system is quite superior to that of the leaders and its ability to stop any unsupported reform is very high, so they have to be engaged at all stages of the process.
Some scholars have analyzed the risk that judges may only pursue reforms to increase their powers (additional budgets and staff, more prestige and influence). In these cases, the internal reformers may be advancing an agenda that is inconsistent with that of other stakeholders or society at large. A major potential political economy problem may thus arise: How can be judges constrained in their ability to extract rents from the reforms agreed with the other stakeholders? In the literature, the solution comes from a “general political equilibrium” model in which an independent judiciary has to manage carefully the relationship with the executive and legislative branches, while politicians have to monitor the courts performance. A study has found that players in this “equilibrium” system have incentives to enforce mutual restraint, including some moderation about the aspirations of judges.
The group of external reform leaders is decisive for the reform process to begin. It encompasses the Government and the political parties, stakeholders that have no permanent involvement into justice business but may be seriously affected by the results of the reforms. They may become winners or losers in a reform process that has unexpected turns and twists, after reformers and opposers make the case for the merits of various proposals/counterproposals. Politicians like the credit they can take from the reform results but rarely find justice among the priority issues in the agenda of electoral processes so only a few engage in a reform that in the end they will not control. The parties are typically indifferent about the technical fixes and may look only into advancing ideological platforms.
The external influencers group is led by CSOs working on the justice sector or advocating for the interests of vulnerable citizens that often have to make effective their rights through the court system (i.e., minorities, women, pensioners, or taxpayers associations). CSOs take the initiative in advancing reform proposals to address dysfunctions that affect the groups they represent. Sometimes, they may provide support to the proposals advanced by the reform leaders in the Judiciary or in Government but more commonly are critical of them. CSOs expect to continue operational in the long term so they have time to develop capabilities to monitor the reforms along the road.
Business groups would generally expect better services at lower costs, but some subgroups have more specific interests in particular courts (bankruptcy, commercial) and would like these services to be addressed by the reforms. Academic institutions expect to participate as advisors of the reforms, and through graduates in various positions of the judicial hierarchy have access to information about the internal operation of the courts. Some have built the expertise to monitor and evaluate the reforms, and to propose alternatives. All members of this group also have a very long-term perspective and are careful not to engage in supporting questionable or non-durable reforms.
A peculiar influencer group comprises the main mass media outlets and polling companies that are intermediaries in the generation and measurement of public opinion about justice issues. Judicial matters used to be relegated to the last pages of the traditional papers devoted to the coverage of sensational criminal cases, but in the last decades have turned into major sources of information for all the stakeholders about broader reform issues, sometimes because of the improved quality of the analysis (as in the case of media committed to investigative journalism) or as a result of the rapid and persuasive dissemination of citizen grievances against unresponsive courts. Finally, the polling companies try to measure the evolution of public opinion around a large number of policy issues, with a few specific questions about the justice sector in nationwide surveys that may provide support to the reformers or their opposers.
Materializing courts’ reforms and the performance improvements sought requires reformers to develop a framework that connects the original objectives and the results to be achieved. While useful to determine high-level/long-term societal aspirations purely normative frameworks (i.e., what constitutions or laws say about these courts) are not sufficient. Instead, the reformers’ framework has to look into how these courts operate and the impact court changes may have on users and society at large. That is the practical purpose of some of the literature reviewed for this article: tracking how court performance improvements happen (or not) as a result of a reform process in terms of service delivery and institutional strengthening.
The key determinant for consolidation/implementation is the overall context of a country’s political decision-making. A number of scholars trace the connections between political players and the courts: While the courts are supposed to be independent, certain rulings have enormous impact on the political arena (e.g., decisions about elections by the administrative courts), and governments and political parties have a stake in the way judges decide. Other vested interests, such as powerful economic groups, may be equally active in tilting the ground to their own benefit, for instance in large financial disputes under civil courts review.
Within a given political context, any reform proposal that modifies the status quo of a justice system by providing checks-and-balances on the discretion of the political branches should expect strong resistance from vested interests. Scholarly review of “why and how” judicial reforms happen is generally focused on the cases where that resistance is overcome, the reforms pass, and new checks-and-balances emerge. For instance, Constitutional/Administrative Courts are the courts that limit the political discretion of the other Branches of Power so reforms in this area are particularly sensitive for political parties.
This literature has found that fully independent, well-managed, accessible, and responsive justice institutions are highly correlated with democratic checks-and-balances. Case studies of major transitions to democracy have explored this phenomenon but have not found a single cause; they agree that a transition to enhanced democratic institutions provides the typical opening for judicial reform as it helps overcoming resistance to change that otherwise is entrenched both inside the judiciary and in the overall political system. Apart from those transitions only limited-scope reforms usually move forward.
Also determinant for the progress of justice reforms is the ability to prevent or mitigate counter-reforms resulting from changes in the political cycle. Some authors have noted that reforming the courts is an intrinsically unstable process as the positive results of an initial reform (for instance, more independent courts) may generate counter-reform efforts from the executive and other political or interest groups that feel their powers have been restrained by an assertive judiciary. The continuous demand for new reforms may then result not from the failure of previous attempts but from their own success in curtailing the powers of the other stakeholders. Reforms can then follow a cyclic/counter-cyclic pattern in which these courts enter into conflict with the groups that benefitted from the pre-reform status quo. The “losers” of a particular reform may become the strongest supporters of subsequent reform proposals designed to undermine the achievements of previous ones. Reforms embedded in constitutional documents may have higher chances of survival than those dependent on lower-level legal instruments.
Another determinant of the chances of success of judicial reforms is the effectiveness of the prioritization/sequencing process. Scholars have found that is easy to identify specific areas in which systemic dysfunctionalities block the achievement of the high-level objectives usually pursued in justice reform programs—independence, management, access, responsiveness—, but also note that some objectives may sometimes enter into conflict and therefore are unlikely to make progress at the same time.
A final determinant of these reforms is the ability to control the behavior of the justice institutions’ internal stakeholders, essential to ascertain whether the reforms can achieve the expected results. For instance, the absence of external controls or the institutional leadership inability (or unwillingness) to monitor the actions of judicial staff may block the change process, weaken the formal governance structures, and strengthen informal networks opposed to change. Within the extremes of full-fledged judicial independence and “State capture” (in which political parties or interest groups determine judicial decisions) there may be a number of intermediate steps worth exploring to gauge the ability of the pro-reform forces to counteract such capture attempts and help strengthening the institutions.
The broad scope of the objectives that justice reforms could pursue and the variety of instruments available to that end pose significant challenges to conceptualize improvement-tracking methodologies based on economic principles such as efficiency. The courts feature many overlapping layers of performance areas. For example, certain management improvements may have positive impact on access (new court offices are open) but not on responsiveness (cases continue lagging). Reduced judicial independence may generate perception barriers for access to justice but improved independence does not necessarily mean other barriers (cultural or physical) are removed. Similarly, the reform tools may overlap: The independence/management areas are typically targeted by the strengthening components of a reform program featuring not only small investments in technical assistance and training but also substantial legal changes, while access/responsiveness are more directly addressed by the service delivery components where larger investments in infrastructure and technology are included, but some institutional reforms may also happen.
Aware of these constraints, scholars usually limit themselves to observe discrete sets of processes or courts where it is possible to track the improvements achieved as a result of a reform. These authors warn against casting a large net over many processes or courts that could make extremely difficult to determine whether a reform was successful or not and why. However, the same studies also suggest covering a reasonably long period to determine to what extent reforms with short-to-midterm goals were sustainable or supported long-term objectives.
Subject to the above caveats,
Statistics about workloads (incoming/outgoing cases, end-of-period inventories) are the preferred indicators about court performance improvements in the areas of management, access, and responsiveness. The use of certain indicators developed by CEPEJ such as the partial clearance rate and disposition time is widespread,
Executive agencies that deal with the financial and economic aspects of the justice sector (typically the Ministries of Finance or Economy) provide information about court budgets (both for operational and investment expenditures) that are critical to assess management performance. Using that information some scholars have evaluated court improvements via tracing the “macro” connection between the budget allocated to the reform and the post-reform deliverables, as a common explanation for judicial underperformance is the lack of resources. Some studies of judicial budgets have also tried to identify efficiency and effectiveness
A few studies have explored: (i) How the courts ensured the actual protection of fundamental rights and freedoms or made government officials and institutions accountable to citizens; and (ii) the impact of court decisions on actual government services delivery, i.e. cases where judges have had a major role in facilitating the operation of the state apparatus, for instance by resolving grievances against government agencies and their actions based on individuals’ complaints.
Finally, some studies have focused on gathering data about how the strengthening of functional capacities of a set of courts occurred by observing only a small number of internal processes (caseload management, judgment generation, settlement incentives). This research was designed to capture what is at stake in a narrow reform setting and what needs to happen to set the foundations for further performance improvements.
Some court reform impacts (particularly in the area of independence) can only be measured by the quality of the broad outcomes delivered to society, as assessed by the opinions of experts and users,
Particularly useful for the assessment of independence is the surge in the number of sources devoted to ascertaining the progress of democratic governance through perception data that include the courts among the target institutions. For instance, World Bank’s (WB) Worldwide Governance Indicators (WGI) have reported aggregate data for six dimensions of governance after 1996, including a rule of law indicator that captures perceptions about confidence in, and compliance with, the basic rules of society, with particular reference to the quality of the courts responsible for contract enforcement and property rights.
Among the most relevant sources of WGI for the courts, the executive survey of World Economic Forum (WEF) and the citizen survey/expert consultation of World Justice Project (WJP) include several specific questions about court performance.