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Defining independence:. Two dimensions of independence, and their sources. Control vs. Independence. Autonomy/Control : the degree of uncertainty we will tolerate in judicial decisions; the amount of discretion left to individual judges
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Defining independence: Two dimensions of independence, and their sources
Control vs. Independence • Autonomy/Control: the degree of uncertainty we will tolerate in judicial decisions; the amount of discretion left to individual judges • Independence/Partisanship: the extent to which the decision-maker is identified with one of the parties to the dispute.
Control over preferences vs. control over decision-making • lack of preference independence: the over-identification of judges with a party that has an interest in the dispute (often, the executive) • E.g., the Menem court in Argentina, the Constitutional Court in Kyrgyzstan under Akayev • lack of decisional independence: the capacity of an interested party (often, the executive) to interfere with judicial decision-making • E.g., “telephone justice” in Bahia and across the region
The source of control: institutional design • Mechanisms of appointment produce different levels of control over the preferences of appointees • Compare simple majority of Senate, to simple majority with filibuster rule, to 2/3 majority • Mechanisms that control decision-making (discipline, promotion, compensation, appellate oversight) produce different levels of control over decision-making • Compare impeachment, to discipline and promotion by an oversight body • Variation in degrees depends on capacity: access to information, available sanctions, ease of use
The source of partisanship: politics • Factional dominance of mechanisms of appointment and control • Open and public mechanisms force the use of more consensual standards, so reduce any one faction’s capacity to bias outcomes • Internal mechanisms typically have more information than external mechanisms and are more effective, but harder for outside factions to control • When these mechanisms are controlled by an identifiable faction, the courts lose (at least the perception) of independence. • Political Partisanship • Other kinds of factions: e.g. economic elites (São Paulo, Brz); conservative social elites (Córdoba, Arg)
In short: Politics interacts with institutional design to produce varying levels of independence and control.
