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Publications: Judiciary
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By Linn Hammergren
Research: Additionally, certain elements are added largely because they are popular –judges want new laws, equipment, training, and buildings. External assistance agencies tend to feature activities conventionally included in all their programs. And finally, there are the various preconceived notions about what is wrong with judicial systems which are again far easier to incorporate in a program than to contest. For all these reasons, knowledge building based only on actual reform programs is inherently limited. The full range of possibilities, whether of solutions or underlying causes, is unlikely to be explored because they have never become part of the standard reform repertoire. Research is thus a vital fourth element in the knowledge management program. It can examine conventional understandings, test dominant hypotheses, and even attempt novel solutions which would not be possible in an ordinary reform. Research on judiciaries and judicial reforms is far from nonexistent, but as currently conducted suffers from some potentially serious problems:
The explanations for the first two phenomena largely lie in the absence of a well-established academic discipline focusing on the judiciary and its reform. Researchers come from a variety of disciplines. This in itself is desirable, but some of the negative side effects are that content, methodologies, and eventual dissemination are usually driven by the parent discipline’s priorities and that published articles are scattered through a vast number of journals, only a few of which focus specifically on legal and judicial reform. The fact that academic careers, access to funding, and publication depend on a disciplinary community less interested in judicial reform for its own sake creates two interlocking vicious circles which also explain a good part of the third observation. Researchers select topics, questions, and methodologies defined as important by their disciplines, and so tend to keep cross-disciplinary, thematically determined issues off the agenda, thereby guaranteeing they will continue to be seen as less significant. Practitioners’ inherently lesser interest in reviewing research is thus reinforced because much research is not relevant to their activities. The cycles tend to affect even research sponsored by assistance agencies, which often seems more influenced by academic than practitioner concerns. For example, much of the recent work sponsored by the World Bank has involved the statistical analysis of relationships between aggregate indicators of judicial and economic performance. Its apparent purpose is to demonstrate the need for judicial reform, but beyond that its impact on reform content is dubious. Even discounting questions about concept validity [ 15 ], the further problem is in unpacking the indicators to understand the nature (and direction) of the relationships. Efforts to breech that gap by linking major variations in judicial structure or legal tradition to performance face similar criticisms. The construction of both the dependent and independent variables often involve some fairly arbitrary distinctions [ 16 ], but even if we accept their findings, the implicit recommendations (change to a common law system, or a parliamentary as opposed to presidential one) will not be easy to enact. While the grand distinctions (civil versus common law, inquisitorial versus accusatory criminal proceedings) may matter, the emphasis on tracking their impact fails to recognize that they are the least amenable to change. It also overlooks the potentially greater variations within the grand categories (e.g. between the inquisitorial justice system as practiced in Haiti and in France). Such within-category variations are intrinsically less interesting to academic researchers because they hinge on a multitude of differences of detail, most of which will not be statistically significant. The obvious conclusion is that if practitioners are going to benefit from research, they must help define the agenda and finance those studies most likely to have an impact on their own work. Inevitably these will involve more intensive comparisons of a limited number of cases. As they will be more costly to conduct [ 17 ], it is also important that the themes be selected with care. As a start toward a new research agenda, the following general topics are suggested, ordered from least to most ambitious:
Donors will have to sponsor this research, but to the extent they can help build a body of relevant work they may also help legitimate it within the academic community. An obvious first priority is that they reorient their in-house research programs to coincide more closely with programming needs. A second is a larger research budget both for in-house and sponsored work. And a third is that research be reviewed and utilized. That is has not been so far may be a disguised blessing, but it is time to replace the two vicious circles with a virtuous one. If reform planners are forced to incorporate research findings in their own designs, they will pay more attention to what is proposed and what is delivered. When the results are, as is currently the case, contradictory [ 20 ], someone will have to resolve the differences. ____________________________[15] These are legion. Most involve the judicial performance indicators which are usually based either on surveys or expert opinions. Even in a single country, there are question as to what is really being measured (public perceptions, the perceptions of a small group of citizens, experiences respondents are willing to report, and so on). However, cross-national comparisons are still more problematic because of the different perceptions of what is normal. One researcher using this approach notes the perplexing finding that residents of London reported more exposure to street crime than those of Caracas. Further interviewing revealed that the threshold for reporting incidents was far lower in England than in Venezuela. (Juan Jose Toharia in a presentation at the Law and Society Association meetings, Miami, 2000.) A 2000 Gallup poll on citizen satisfaction with government handing of crime is also illustrative. The second highest ranking went to Nigeria, the fourth to the Philippines, while France, the Netherlands, Finland, and Sweden received only half the positive responses of the two former countries. [16] A series of studies (la Porta et al, 1998) focusing on differences between civil and common law systems have been criticized (Pistor, 1995) for overlooking the enormous variation within and cross fertilization between the two traditions. Another Bank study (Buscaglia and Dakolias) relating delay to such traits as computerization of courts, investments in infrastructure, and proactive judges raises many questions as to how the last three variables were constructed.as well as to the posited causal links. Courts which invest in computers may simply be courts interested in reducing delay, and it may be that interest, not the computers, which explains their success in shortening time to disposition. [17] Aside from the disciplinary biases of the researchers doing macro studies (most of whom are economists) another explanation for their methodological focus is that they can use data bases that already exist. This means that they can do a study covering 80 countries for less than it costs to do original research in one. [18] For some reason certain donors (most notably the World Bank) have become extremely critical of the term. Taken as blueprint solutions, the criticism may be well placed. However, as more flexible rules of thumb or basic principles for conducting activities, “best practices” are demonstrably effective. For example, we know that training is best done with a needs assessment; that the focus should be not on simple knowledge transfer, but rather on improving concrete practices and behaviors; and that repetition and complementary organizational changes substantially enhance training’s effect. [19] Equipment and infrastructure often constitute the major part of investments in reform programs. Ad hoc arguments and some empirical work (Buscaglia and Dakolias) suggest an impact on performance. However despite (or because) of their popularity, critics have expressed doubts which are worth pursuing. [20] For example two recent Bank publications found that salaries were 1) unimportant to and 2) highly predictive of levels of judicial corruption. The different sources of data easily explain the discrepancies but to my knowledge no one has even noticed them.
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