Measuring the Judicial Power of Regions:
A Judicial Regional Authority Index∗
Joan-Josep Vallbé
University of Barcelona, Catalonia (Spain)
[email protected]
Instituut voor Informatierecht, Universiteit van Amsterdam (Netherlands)
[email protected]
March 30, 2014
Abstract
Due to its special political nature, the attention given to high court selection processes
has tended to focus either on the selection process itself and on the relationship and
tensions between governments and justices on features such as ideology or policy issues
at the federal level. Yet, the articulation of some jurisdictional authority among the
different judicial and administrative components of decentralized political systems has
led to a number of other relevant known tensions. In this context, though, the role of
sub-national entities on the dynamics of high court selection and behavior still lacks a
systematic or unified approach. On one hand, only a few cases of federal arrangements
allow for some kind of state-level participation in high court judicial selection. On the
other, it is still not clear what is the relationship between these provisions of judicial
federalism and the dynamics of political decentralization and regional authority. To deal
with these shortcomings, this paper presents the Judicial Regional Authority Index, a
composite indicator of seven dimensions of regional judicial power including the role
of regions in high court appointments and decision-making, that currently covers the
1950-2006 period for a sample of cases within different models of decentralization. The
results show that the indicator has enough granularity to account for subtle differences
in judicial capacity both among regions, within and between countries and legal systems,
and it aims at providing an empirical tool to explore the complex relationship between
political-judicial dynamics and multi-level governance.
1
Introduction
The articulation of some jurisdictional authority among the different (judicial or administrative) components of a political system with some degree of decentralization (whether it is of
∗
In the making of this work many people helped me. I would like to thank Xavier Arbós, Josep M. Castellà,
Jaume Magre, and Albert Falcó-Gimeno at the University of Barcelona. Part of this project has been funded
by the Catalan government: Centre d’Estudis Jurídics, beques de recerca 2012. I would like to thank profs.
Gary Marks and Liesbet Hooghe for their insightful comments on earlier drafts of the paper and for hosting
me at VU Amsterdam, where this draft was written.
1
autonomous, regional, or federal kind) has led to a number of relevant tensions (Baker 1995),
covered to some extent by the literature. In general terms, these tensions have been found
to take place either between federal (or central) level courts and the other branches of the
polity; between regional governments and federal courts; between federal courts and the other
branches of regional government; or even between federal/central and regional courts.
These phenomena have been dealt with by a literature that is thematically plural (within
the boundaries of political science and legal studies), that presents low levels of cross-polinization
(Halberstam 1998) triggered by a usually high level of legal technicality and the predominence
of research based on case studies.
These last two common features have had serious implications on the empirical approach
to the comparative study of the judicial component of decentralized political systems. On
one hand, the difficulty to meet the demmanding methodological standards associated to
the successful development of case studies has produced research with limited generalization
power. On the other hand, most legal technical approaches have tended to stress out the
particularities of the judicial organization in single cases (whether federal or regional) than
to try to find a common language to allow for systematic, empirical comparisons among and
within systems. As a consequence, the existence of differences, similarities or simply patterns
in the organization of the judicial power in decentralized countries remains largely unexplored.
Our main research questions are:
1. Is there any relationship between processes of political decentralization and the organization of the judicial power?
2. Do different models of political decentralization produce systematically distinct models
of judicial decentralization?
These are relevant questions that, as said above, have not yet found answers in the literature. The existence of distinct, sub-federal judicial systems seems to be a defining feature
of federalism (Aparicio 2013, Arbós 2013), but while each Land in the federal Germany and
each U.S. state haver their own judicial system, Landër in federal Austria largely lack judicial
capacity. Even more, should the territorial organization of judicial power be a key element of
the capacity of sub-national entities to make autonomous decisions, then the judicial power of
regions should be taken into account to measure, compare, and evaluate processes of political
decentralization, in both space and time, and within and among countries. Because then the
achievement of high levels of political power by regions should be accompanied by at least
some degree of judicial autonomy. The cases of Spain and Italy, however, tell us that different
levels of regional political power can coexist with highly centralized judicial systems.
In order to answer these questions, this paper designs and presents an instrument to measure, first, the level of judicial decentralization of countries, and second, the level of judicial
power of regions. In particular, it presents a composite indicator of judicial decentralization
(the Judicial Regional Authority Index)1 taking the region as the unit of analysis, with the
aim of (1) achieving a clear language to support systematic comparison between the relevant components of what can be understood as “judicial decentralization”, (2) offer a way to
empirically evaluate and compare a high number of cases in a single moment in time (crosssectional), the evolution of particular cases (longitudinal), or both combined, in order to (3)
explore the patterns of judicial organization in scenarios of political decentralization.
1
Based on Marks et al.’s (2008) Regional Authority Index.
2
In sum, the main contribution of this work is related to the empirical approach to the
judicial dimension of regional autonomy thorugh an interdisciplinary approach, the consideration of regions as the valid unit of analysis to carry out comparative research in this field,
and the design of an analytical and empirical framework that should be sensitive to variations
in the organization of the judicial power within and between countries.
In section 2 a literature discussion is carried out along three main themes: first, the limited role of the organization of Justice in the comparative literature on federalism; second, the
difficulties found to carry out empirical research on models of decentralization including the
judicial dimension; and third, the limited contribution of literature on multilevel governance
on this issue. After that, sections 3 and 4 present the components of the Judicial Regional
Authority Index, discuss how regional judicial power is measured, and provide a formal definition of the composite indicator. Finally, section 5 presents the main results on the four
cases selected as test data, first comparing countries and regions on judicial decentralization,
and it also provides a brief example of empirical evaluation of judicial decentralization within
one single country. The current dataset contains data on all the components of the Judicial
Regional Authority Index (JRAI) for all the sub-federal units in Germany, United Kingdom,
Italy, and Spain, between 1950 and 2006.
2
2.1
Literature
Federalism and judicial federalism
The variety of theoretical formulations around federalism is well-known. A main feature of
these definitions, though, is their focus on the role of both executive and legislative powers.
A second defining characteristic is that federal studies have tended to privilege the analysis
of federal constitutions—i.e., they have usually taken the federal level or state as the unit of
analysis.
Regarding the first question, essentially these classic formulations (Lijphart 1999, Riker
1964) have pointed out that “[t]he basic feature of a federal system is an institutionalized division of power between a central government and a set of constituent governments—variously
denominated as states, regions, provinces, Länder, or cantons—in each each level of government has the power to make final decisions in some policy area but cannot unilaterally modify
the federal structure of the state” (Amoretti 2004).
This basic theoretical formula has the division of powers as its core element. Coherently
with this definition, different attempts to elaborate on the concept of federalism analytically
have tried to establish the mechanisms of the exercise of that power. For instance, in his
groundbreaking work aimed at measuring intergovernmental relations and presenting an empirical account of different models of demcoracy, Lijphart (1999) defines five oft-cited areas
of power in which the differences between unitary and decentralized models are apparent.
Regardless of the particular formulation of these main features, the basic idea under this and
most definitions is that federal models host two different kinds of power: (1) the capacity of
the constitutive polities to govern themselves (understanding government in a broad sense),
and (2) the need to share a part of their power with a central government. This dichotomy
was synthesized by Elazar (1987) as self-rule and shared-rule.
A special aspect some authors have related to the foundation of federal states are territorial
problems. The logical mechanism is simple: federalism is prescribed for the accommodation of
3
territorial divisions and to manage ethno-linguistic conflicts (Erk and Anderson 2010), meaning that federalism is conceived of as a way to manage conflicts in societies that are divided
throughout some cleavage that can, ultimately, be drawn upon territorial lines. Although the
study of federalism as a way to manage territorial divisions has received relevant volumes of
attention among political scientists, even in extreme cases such as South Africa, Nigeria and
Irak (de Villiers 2012), the attention payed to a universal mechanism for conflict resolution
at local, regional, or federal levels such as the judicial system has been invariably low.
One might argue that in the case we used as a reference (Lijphart 1999) and in most
analyses, judicial review is in effect taken into account. This mechanism, though, is vital
to this model of federalism because it serves as a mechanism for dispute resolution between
federated states and the federal government (Amoretti 2004). In this sense, tipically the
entities with the capacity to control the constitutional validity of legislation of both federal
and federated powers are either not strictly judicial in an ordinary sense (e.g., the politically
appointed Spanish Constitutional Court), o they are, but are also given additional powers
regarding this special jurisdiction. Be as it may, usual approaches to this issue focus on the
constitutional reivew but not on the extent to which “jurisdictional organs of member states
have also a role in the interpretation of the federal constitution” (Arbós 2013), and even
less on more particular aspects of the organization of ordinary jurisdictions such as the first
instance within the federated states or decentralized regions.
Nevertheless, the structure of the judicial power in federal models, its defining role for
federalism, or even the different levels at which this may be relevant are all questions of
evident scientific interst. Yet, the importance of the judicial dimension of federalism seems to
have only appealed students of the so-called judicial federalism, which is to be found mainly
among legal theorists and constitutional experts bounded to the analysis of case studies (Jacob
et al. 1996, Shapiro 1981, Gerpe and Barceló 2006, Gerpe and Cabellos 2013).
For instance, Arbós (2013) underscores both the existence of the federated states’ own
judicial system as a defining aspect of federalism, and the absence of regional judicial systems
in other types of decentralized state. In the same direction and focused on the Spanish case,
Aparicio (2013) points out that the absence of a regional judicial system is precisely what
makes the Spanish model anything but federal, “because there is no federal contract, there
is no participation of the autonomous entities in the central state, [...] and, among other
reasons, because autonomous communities lack their own judicial power.”
Regarding its methodological nature, though, in the area of judicial federalism we may find
studies comparing common elements and differences in the judicial organization of federal or
quasi-federal models (Casañas-Adam 2010, Halberstam 2005, Watts 1999) such as the analysis
of the role of judges and the institutional dynamics surrounding the judicial practice, usually
as case studies, and with special interest on the United States and the European process of
judicial interaction (Burley and Mattli 1993, Coffin 1980, Dahl 1957, Friedman 2005, Garrett
et al. 1998, Halberstam 2005, Levinson 2005, Posner 1993, Segal 2002, Shapiro 1981, Slaughter
et al. 1988, Solberg and Lindquist 2006).
However, on one hand, in these studies the relationships between administration of Justice
and judicial power have not received an amount of attention comparable to other issues such
as the role of high or constitutional courts in the dynamics of federalism. On the other
hand, literature on judicial federalism has also favored the global treatment of groups of
political or legal systems (or countries that are “representative” of them) regarding some of
4
their constitutional features (Koopmans 2003) or even the type of legal system they present
(Shapiro 1981, Jacob et al. 1996), leaving aside specific features to be found at a regional
level.
This leads us to the second main characteristic of the studies of federalism, in which both
legal and political approaches do present striking similarities. In effect, a common feature
of studies of both political and judicial federalism has been the dominance of the federal
perspective comapred to the regional level. With the aim to provide clear-cut classifications
of federal political systems, a great deal of the studies on federalism have been prone to
focus the attention on the mechanisms that facilitate the existence and functioning of federal
systems. The elements that Lijphart (1999) proposed, for instance, or even the more abstract
conceptualization of the kind of power that is being federated (Elazar 1984, 1987) tend to see
federalism as a form to organize, divide, share a power that at some point was in fewer hands.
In one of the few cases in which this issue has been clearly stated, Tarr et al. (2004) point
out that despite its obvious relevance, the federal standpoint does not exhaust the whole set
of constitutional issues in a federal system, “in part because it encourages an understanding of
federalism as a top-down or center-periphery arrangement rather than as one based on differing
spheres of governmental authority”. Even though, some excpetions can be found to this so
common approach (Biaggini 2004, Tarr 2004). However, even in these cases the persistent
tendency among comparative legal scholars to use case studies impedes generalization of
results and limits, therefore, the explanatory power of the proposed models.
2.2
Regional autonomy and models of decentralization
This mainly empirical difficulty has been, in part, dealt with by a third corpus of literature
on the notion of regional autonomy, especially on the explanatory models of the processes
of contemporary political decentralization. In particular, this literature explores how the
articulation of authority in different general purpose jurisdictions affects political participation, accountability, territorial conflicts, corruption, public spending, and democratic stability
(Marks et al. 2008).
Usually comparative literature about regional autonomy has focused on comparing political systems through elements such as judicial review, legislatures, executive power, constitutional courts, fiscal control (Rodden 2004), high courts of appeal, or even the number
of judicial jurisdictions and the conflicts that stem from it. Moreover, it is also usual for
these measures to be produced with the aim (very successful in some cases) of distinguishing between decentralized and centralized systems—thence Lijphart’s (1999) federal-unitary
dimension—but not so much at exploring thoroughly the organizational differences between
sub-federal units themselves (Rodden 2004). Threrefore, for instance, it is common to find
a particular country classified as having certain level of decentralization, but it is not possible to distinguish, within that country, whether the components of the decentralized system
(regions) present relevant differences, not only in their levels of decentralization, but also
in important institutional and organizational features. Therefore, usually this literature is
not sensitive enough to observable variations in the organization of sub-national governemnts
within decentralized systems.
In contrast with this, though, the project to study and measure regional political autonomy
with a large sample of countries and regions by Marks et al. (2008) has delivered the most
complete database so far on this issue, and a way to gauge the political power of regions
5
through one single measure: the widely used Regional Authority Index (RAI) (Marks et al.
2008). The database used to build this indicator has the region as the unit of analysis for 42
countries, and contains measures that are combined to build two different dimensions of the
regional authority. On one hand, four indicators summarize the capacity of a region to govern
and manage its own matters (so-called self-rule dimension): institutional depth, policy scope,
fiscal autonomy, and capacity of representation at the regional level. On the other hand, a
second dimension measures the extent to which regions may exert some influence on decisions
made at the national level (shared-rule), measured through four indicators: regional influence
in national law making, executive control, fiscal control, and constitutional reform. However,
judicial power at the regional level is not part of that measure of regional authority.
2.3
Multilevel governance
Finally, another relevant corpus of literature for the theme of this paper deals with the analysis of the emergence of new forms of governance and dispersion of decision-making centers
(Hooghe and Marks 2003), and the role that the political configuration of the territory has to
play in them. In general terms, here we find works focused on the redefinition of traditional
understandings of the conflictive relationship between center and periphery in the contemporary configuration of the State (Brake 1997, Ertman 1997, Poggi 1978, Rokkan and Eisenstadt
1973, Spruyt 1994, Tilly 1975). In this vast literature, the process of European integration
has received a privileged attention (Bartolini 2005, Ferrera 2005), which has led to a new
definition of the problem of the center-periphery relation (Piattoni 2010).
Most of the original contributions focused on the effects of the ever increasing complexity
and relevance of EU policy making in a wide range of matters (Hooghe and Marks 2003).
More specifically, the EU integration process has also allowed for the distinction of different
models of supra-national or federal design vis à vis different multilevel governance structures
or dynamics.
In this sense, de Bruyn (2009) states that federalism or even confederation may be perceived as a specific type of multilevel governance (MG), for instance what Hooghe and Marks
(2003) call Type I MG. This type of multilevel structure is characterized by the existence
of general-purpose, non-intersecting jurisdictions (although some policy competences may be
shared (de Bruyn 2009)), the organization of jurisdictions in a limited number of levels, and
an architecture that covers the whole system. Notice that this model does not entail, however, the existence of a strong center (federal government, European superstate). Therefore, it
could fit into Elazar’s (1984) ideal notion of the federation as a “matrix” without focal center,
and also into models of incomplete decentralization.2
But most connected to the current paper, one essential aspect of multilevel governance
approaches has been the acknowledgement, on one hand, of the increasing role of regions
(Brugué et al. 2000, Jeffrey 1997) or other levels of government such as metropolitan or other
second level entities (Tomàs 2009) in the process of policy design and implementation, and on
the other on the growing interst in the effects of the existence of overlapping levels of power
in the basic relationships between citizens and the political system (Oliver 2001).
2
In contrast with this type of governance, the Type II multilevel governance is featured by the existence of
task-specific jurisdictions, the intersection among jurisdictions, the limitless number of levels, and its design
flexibility.
6
However, in this literature, as in the previous corpora, the existence of different models
of multilevel governance in the administration of Justice remains largely unexplored, especially regarding the role of regions in the reconfiguration of the relationships between the
administration of Justice and the judicial power.
3
Towards an indicator of judicial decentralization
Our main objective is to build indicators of judicial autonomy or fragmentation aimed at
(1) enriching the concept of judicial autonomy, and (2) enable the analysis of differences in
judicial decentralization both among countries and regions. Our basic methodology is based
upon that which Marks et al. (2008) used to design and implement their Regional Authority
Index.
At the outset of their empirical approximation to the notion of regional authority, Marks
et al. (2008) first drew upon a commonly accepted two dimensional approach (Elazar 1987).
The authors conceive that regional authority is not only to be understood as a region’s capacity
to govern itself (self-rule), but also as its capacity to influence (along with the other territories
within the polity) the general affairs at the upper level (shared-rule). This way, Marks et al.’s
(2008) measure of regional authority is at the same time an indirect measure of the autonomy
of central governments.
On one hand, Marks et al.’s (2008) notion of self-rule refers to the extent to which a region
can exercise authority within its jurisdiction, and it “is operationalized as the extent to which
a regional government has an independent executive, the scope of its policy competencies,
its capacity to tax and the extent to which it has an independent legislature” (Marks et al.
2008: 115). On the other hand, the notion of shared-rule refers to the capacity of a region to
influence decision-making at the central level, in four key areas: “normal legislation, executive
policy, taxation, and constitutional reform” (Marks et al. 2008: 115).
We adopt this two-fold approach, too, due to the widely acknowledged validity of this
approach in the literature, although we adapt the components of each dimension to effectively
measure judicial capacity. To do that, we first distinguish between two dimensions of judicial
autonomy. On one hand, we want to measure a region’s capacity to have judicial self-rule
taking into account the institutional, decisional, and economic aspects of judicial autonomy.
On the other hand, the second dimension of judicial autonomy (judicial shared-rule) intends
to measure the capacity of a region to influence those decisions affecting the organization
and functioning of the upper-level’s Justice administration and the judicial power. Table 1
presents the components of each dimension, and the next sections discuss and operationalize
them.
3.1
Judicial self-rule
Institutional autonomy The first component of judicial self-rule captures the extent to
which a region has its own administration of Justice. Rather than a typical binary mechanism,
judicial institutional autonomy is here conceived of as a gradual, continuous dimension that
ranges from a complete absence of a regional judicial system to a full-fledged administration
of Justice at the regional level. The extent to which a region is more “judicially capable”
is measured by the accumulation of issues its administration of Justice (AoJ) is entitled to
7
Table 1: List of the theoretical components of the notion of regional judicial authority.
Self-rule
Shared-rule
Regional Judicial Authority
Judicial institutional autonomy
Judicial recruitment
Judicial design
Judicial economic autonomy
Capacity to make ultimate decisions
Judicial representation
Judicial executive control
Fiscal control
manage. Note that this is mostly a matter of formality—i.e., we intend to measure the extent
to which the existence of a regional AoJ is formally recognized.
Thus, this first dimension has four categories, the first one being a null one, where a
region has not its own administration of Justice. The second is reserved for the existence of
a regional AoJ that is only entitled to manage minor issues. The third and fourth categories
complete a cumulative logic, the third referring to the existence of a regional AoJ with a full
jurisdiction in either civil or criminal cases, reserving the fourth for a regional AoJ with full
jurisdiction in both areas of law.
Table 2: Operacionalization of the Judicial Autonomy dimension.
0:
1:
2:
3:
Judicial Autonomy
no Administration of Justice at the regional level
a small regional Administration of Justice to deal with minor issues
a regional Administration of Justice to deal with either civil or criminal
issues
a regional Administration of Justice to deal with both civil and criminal
issues
To score more than zero in this dimension, some form of regionalization of the administration of Justice must be accepted to exist, at least formally. For intance, Italy is one
case of null regional judicial decentralization as a constitutional principle. During the constitutional process of the Italian Republic after World War II there was a timid attempt of
judicial decentralization for those regions with “special characteristics”. Thence the Statute
of the Region of Sicily aproved in 1946,3 which contains the provision of the creation of a
High Court (Alta Corte) (art. 24) with six members appointed equally by the national and
regional legislative assemblies. Moreover, the Alta Corte was to have powers on constitutional
review for regional legislation and national legislation to be applied in the region (arts. 25-30).
Despite this advanced beginning, though, the Sicilian Alta Corta will be left to no effect by
successive decisions of the Italian Constitutional Court, thus finishing any attempt of judicial
decentralization in Italy. Therefore, Italian regioni have no judicial system whatsoever and
score zero in this first dimension.
Spain, too, has a judicially centralized system. Any potential judicial decentralization in
3
Statuto della Regione siciliana, approvato col decreto legislativo 15 maggio 1946, n. 455, transformed into
a Constitutional Law on February 26, 1948, n.2.
8
Spain is bounded, on one hand, by a few constitutional principles regarding the organization
of the judicial power (articles 117 and 122 of the Spanish Constitution), which, on the other
hand, have been implemented and interpreted in a strongly unitarian and centralizing way
(Díez-Picazo 1991, Porras 2013). These constitutional principles establish a unique and central jurisdiction throughout Spain, under which the whole Spanish court system is deployed,
which logically leads to the fact that, at least formally, none of the Spanish autonomous communities can be said to have its own judicial system (Aparicio 2013). Yet, as explained below,
not having a formal recognition of regional judicial system has not stopped several Spanish
comunidades autónomas from having a certain role in judicial matters.
At the other end of this dimension lie the German Länder, in which all state-level judicial
systems control the first and second instances in civil and criminal matters, while federallevel appeal courts make last instance decisions on almost all kinds of matters. Thereore,
German Länder have their own judicial systems although they are not completely self-sufficient
(Riedel 2005). In that sense, Germany presents a completely symmetric model with an equally
distributed set of both political and judicial powers to the länder, which in this dimension
obtain 3 points.
In contrast with the German case, the United Kingdom constitutes a highly asymmetrical
case. In the last 15 years, the UK has carried out thorough constitutional reforms (e.g., Constitutional Reform Act 2005) that have brought a significant level of structural institutional
updating: devolution of powers to Northern Ireland (Northern Ireland Act 1998), Scotland
(Scotland Act 1998 and 2012) and Wales (Government of Wales Act 1998 and 2006), independence of the Bank of England, or the election of the Mayor of London and other cities within
a great reform of local government (Greater London Authority Act 1999; Local Government
Act 2000).
These reforms, though, have not only had a deep effect on the political and territorial
organization of the UK, but they also had the aim of “the institutional separation of the
executive and judicial branches” (Masterman 2011)4 and, therefore, they have deeply affected
the structure and functioning of basic elements of the judicial branch.5
In the judicial field proper, the UK presents a fairly high level of judicial decentralization.
The system, though, is not symmetric in that only two of the four regions (Northern Ireland
and Scotland) present their own judicial system, while England and Wales share one single
system. Moreover, judicial autonomy in each territory has not been achieved at the same
moment. Our notion of judicial autonomy, then, is actually only applicable to Scotland and
Northern Ireland in the period that our data cover, insofar in these territories the specific law
of the land (Scottish Law and Northern Ireland Law, respectively) prevails.
The judicial autonomy applies to both civil and criminal jurisdictions (with some exceptions such as immigration, labor law, and issues related to the military and terrorism). In our
data, then, Scotland and Northern Ireland obtain 3 points while Wales obtains 0 points.
4
See also Department for Constitutional Affairs, A Supreme Court for the United Kingdom (CP 11/03, July
2003); Department for Constitutional Affairs, Reforming the Office of Lord Chancellor (CP 13/03, September
2003).
5
For instance, on the one hand, the reform has stripped all the judicial power from the Chamber of Lords
to create a new Supreme Court. On the other, the constitutional reform also makes the appointment of judges
more independent (Department for Constitutional Affairs, A New Way of Appointing Judges (CP 10/03, July
2003).) through the Judicial Appointments Comission (Constitutional Reform Act 2005, ss. 61-2.)
9
Recruitment While the first dimension of judicial self rule captures a formal feature of
the capacity of regions to have their own judicial system, the second dimension of judicial
autonomy tackles a more substantive matter: the extent to which regions have any role in
the recruitment of the personnel that works in the administration of Justice within their
boundaries. This dimension is conceived, again, as a continuous measure that ranges from
the absolute lack of participation of regions in the recruitment of Justice personnel, to the
full regional recruitment for the adminsitration of Justice.
Table 3: Operationalization of the Judicial Recruitment dimension
0:
1:
2:
3:
4:
Judicial recruitment
the region does not have any role in recruiting the staff for the adminsitration of Justice (AoJ) or the judicial branch
the region recruits only administrative staff for AoJ
the region recruits administrative staff and lat least one group of specialized staff (forensic doctors, clercks of the court, experts)
the region complies with all the above and also recruits prosecutors
the region complies with all the above and also recruits judges in its
jurisdiction
The null category in this dimension refers to the absence of regional participation in the
recruitment of any personnel, as in the case of Italian regions. Once regions have some role in
judicial recruitment, the gradual importance of their role is a function of the type of personnel
the region is entitled to recruit. For instance, hypothetically we consider that the recruitment
of administrative staff gives less power to a region than its capacity to recruit the clercks of
the court or forensic doctors. In turn, a region that recruits clercks has less judicial capacity
than one that can recruit prosecutors or even judges.6 The basic logic here is that regions
with capacity to recruit higher-level decision-makers (e.g., judges and prosecutors) are more
able to give some particular form to to judicial policy. In our data, this is the case of the
German Länder. The German constitutional norm on courts (CCA)7 does not establish a
unique, central judicial office at the federal level, but every Land has its own—and different
(Riedel 2005)—judicial recruitment system applicable to judges, prosecutors and staff. For
instance, in recruiting prosecutors, German Länder have the authority to establish statutory
mechanisms to appoint the groups of civil servants and other personnel who are to serve in
the prosecution office. In our data, therefore, German Länder score 4 in judicial recruitment.
In contrast, Spanish regions vary in their scores, both at a cross-sectional and temporal
level. To begin with, the Spanish Constitution establishes the existence of a unique body of
judges, which in principle cuts off any possibility for regions of even influence decision-making
in this subject. But at lower levels of decision-making, the advancements made by regions
such as Catalonia and successive judgements made by the Spanish Constitutional Court (e.g.,
6
We are blind toward the specific method of judicial appointment, although popular election of judges,
prosecutors and clerks implies in practice at least some degree of decentralization of justice. In that case, an
indicator would be whether the power to manage such elections lies in federal- or state-level hands.
7
Die Übersetzung berücksichtigt die Änderung(en) des Gesetzes durch Artikel 4 des Gesetzes vom 7.12.2011
(BGBl. I S. 2582). I am using the official English translation of the law: Courts Constitution Act in the
version published on 9 May 1975 (Federal Law Gazette [Bundesgesetzblatt] I p. 1077), last amended by Article
4 of the Act of 7 December 2011 (Federal Law Gazette I p. 2582).
10
SSTC 56/1990 and 62/1990), have progressively allowed certain regions to recruit or have
influence in the recruitment of administrative staff of the administration of Justice within
their territory. However, historically not all regions have adopted these capacities, nor the
capacity to do so has been acquired simultaneously by all regions that have it. For instance,
Catalonia scores 0 in recruitment between 1978 and 1990, and 1 between 1990 and 2006, while
Andalusia scores 0 until 1995, and then 1 from that year until 2006. Other regions such as
Cantabria have never developed such capacity and, therefore, score 0 for the entire period.
Some extreme variation is also observable among British regions, with Wales scoring 0
and Northern Ireland scoring 1 for their whole periods of existence as regions, and Scotland
scoring the maximum (4) from 1950 until 2006.
Judicial design The next component involves the ability to shape the map of judicial
districts in the boundaries of regions. This capacity theoretically has two major components.
First, whether there is a perfect match between the boundaries of the judicial districts of the
first judicial instance within a region and the boundaries of the region itself. Second, whether
regions can decide on reshaping the map of judicial districts within their boundaries. The
notion is incremental, and so is the indicator. There can be a mismatch between judicial
districts and regional boundaries, where regions have no say in districting, such as in Italy.
There can be perfect boundary matching but regions cannot influcence districting, such as
in Scotland, Wales and Northern Ireland. There can be perfect boundary matching and the
capacity of regional influence in redistricting together with an upper political instance, such
as in Catalonia or the Basque Country in Spain, where moreover there is temporal variation.
Finally, it might be the case that regions or states can even design and reshape their own
judicial districts, as in the German Länder. Each of these stages score 0.5.
Table 4: Opertionalization of the Judicial Design component.
0.5
+
+
+
Capacity of judicial design
is scored for each of the following features (scores range 0 and 1.5)
match between boundaries of judicial districts and region, but the region
does not interevene in redistricting
boundary match, and the region can interevene in design together with
the central or federal government
boundary match of districts and region, and the region has the exclusive
capacity of reshaping the judicial map (create or eliminate districts)
Economic judicial autonomy This component measures the capacity and responsibility
of a region to provide for resources to courts within its boundaries. Again, we envisage a
cumulative process where, on one end, a region does not provide any resource to courts, and
on the other extreme, regions that provide all material resources to the courts, and pay the
salaries of all personnel, including judges. Table 5 outlines six different variations of the
economic judicial autonomy, where the lower level (0) is occupied by decentralized units,
such as Italian regions, that do not provide any kind of resource to the courts wihtin their
territory. A first step in resource involvement is made by regions that provide just material
resources (offices, computers, paper) but that have no involvement in paying salaries for any
11
judicial staff, administrative or not. Again, in Spanish regions we find both cross-sectional and
temporal variation, from regions with no involvement at all for the whole 1978-2006 period
(e.g. Cantabria), and regions that have acquired the capacity to provide material resources
and even pay the salaries for judicial administrative staff (e.g., Catalonia). In any case, the
distribution of such capacities in Spain in asymetrical. At the other end of the scale are the
German Länder, with full economic capacity, and Scotland, which scored 0 from 1950 until
1999, and acquied full capacity (scoring 5) from the year 2000 on.
Table 5: Operationalization of the values of the Economic Judicial Autonomy component.
0:
1:
2:
3:
4:
5:
Economic Judicial Autonomy
the region does not provide any resource to the administration of Justice
the region provides material resources
the region provides material resources and pays salaries of administrative
staff
the region provides material resources and pays salaries of adminsitrative
staff + other experts (medical examiners, clerks, other technical experts)
the region provides all the above + pays salary of prosecutors
the region provides all the above + pays salary of judges
Ultimate decision Finally, the last component of our notion of judicial self-rule is measured
by the extent to which ordinary court cases dealt with (started) within the boundaries of a
region can find the ultimate decision made by courts within the same regional boundaries
(last instance). In the conception of this component, regions with higher judicial capacity do
have courts of appeal within their boundaries with the capacity of making final decisions on
most civil and criminal cases.8
This is a complex matter. In this case variation is expected on both the volume of issues on
which regional courts of appeal can state final judgments, and on the nature of the cases that
can be decided upon, civil or criminal. Regarding the first issue, in any case, the existence of
a court of appeal with final decision capacity within the boundaries of a region does not entail
that the court of appeal is part of the regional administration. This is the case, for intance,
of the Spanish Superior Courts of the Autonomous Communities: their existence responds to
the very existence of the Spanish regions (called autonomous communities), but in no case
does this entail the existence of a regionalized judicial system (Gimeno Sendra 2013).
On the issue regarding the nature of the matters to be decided upon by the “regionalized”
court of appeal, we have opted for a simple solution given the existing diversity. We broadly
classify all possible matters as either civil or criminal, understanding that having the capacity
to issue final decisions on criminal cases entails more power than to decide upon civil cases.
The Spanish case is, again, an example of this complexity.
The Superior Courts of the Autonomous Communities have the capacity to issue final
decisions in general civil matters and in those civil procedures that affect the regions’ particular
civil law,9 and therefore these courts present the actual capacity to establish unified criteria
8
With usual exceptions on constitutional issues or fundamental rights.
Regions such as Catalonia and Comunitat Valenciana have particular civil legal provisions affecting real
estate or marriage procedures, among others.
9
12
for legal interpretation in such matters (Gimeno Sendra 2013). These courts, however, have
no final decision capacity on criminal matters. All Spanish regions score 2 in this variable.
In contrast with the other dimensions, the German case of regional appeal does not follow
a full federal model. In fact, in both criminal and civil cases, the last instance of decision in
Germany is the Federal Court of Appeal (arts. 123 ss. CCA), and the state-level courts can
only issue final decisions for some particular cases of civil matters, scoring 1 in the dimension
of judicial decision capacity.
This way, Table 6 establishes a four-category scheme where regions where not a single
court can issue a final decision on any matter score 0, and regions where courts of appeal can
issue final judgments on bot civil and criminal matters score 3.10
Table 6: Operationalization of the values of the Judicial Decision component.
0:
1:
2:
3:
3.2
Capacity of Final judicial Decision
there is no final court of appeal in the region
there is final appeal for minor civil and/or criminal issues (low quantities,
minor offence, etc.)
there is final appeal for most civil or criminal cases
there is final appeal for most civil and criminal cases (except the usual
constitutional and fundamental rights issues)
Judicial shared-rule
Judicial autonomy and power in multi-level or composite political systems can also be exercized through the influence of the decentralized units on decisions affecting the organization
and functioning of the administration of Justice at a federal level. In particular, this influence
can be exerted, first, through the regional representation or participation in the decisions
concerning the composition of upper-level jurisdictional bodies such as Supreme or Constitutional courts. Second, judicial shared rule can also take the form of the regional participation
or membership in the governing bodies of the administration of Justice at a federal level.
Representation The first way of having a shared-rule capacity, as stated above, is through
the regional representation in federal-level High courts. As Table 7 shows, representation is
measured here as a 4-level variable, where regions can score 0 when they have no influence
whatsoever in the composition of High courts. This is the case of the Spanish and Italian
regions. In Spain, the Supreme Court is the apex of the whole judicial system (except for
constitutional matters). All the members of the Supreme Court are royal appointments prior
proposal by the governing body of the Spanish judges (General Council of the Judiciary). To
the extent that Spanish regions have no role to play in the governing body of judges, neither
they can have any influence in appointing any member of the Supreme Court. Regarding
the Constitutional Court, the appointment of its 12 members is determined by constitutional
mandate: four appointed by the lower legislative chamber (Congreso de los Diputados), four
10
The great variation found among judicial systems impedes a neat classfication of regions in this dimension,
though.
13
by the upper chamber (Senado), two by the Spanish central government, and the final two
proposed by the General Council of the Judiciary.
Given that in Spain the electoral district for the elections to both chambers is the province
and not the region, any regional influence on the appointment of the eight members of the
Constitutional Court through the legislatures is very unlikely. It is true, though, that a
reduced number of members of the Spanish Senate are directly elected by the regional legislatures. However, due to (1) the fact that only 57 out of the 264 (21.5 percent) senators
are thus elected, and (2) the fact that the election of members of the Constitutional Court
by senators requires a qualified 2/5 majority, the actual capacity of regions to influence these
appointments would be a rarity, and extremely indirect in any case, and therefore Spanish
regions, with no exception, score 0 in this matter.
Table 7: Operationalization of the Judicial Representation component.
0:
1:
2:
3:
Judicial Representation
regions do not interevene at all in the appointment of member of High
Courts
regions do not intervene in the appointmet, but regional origin of High
Court judges is taken into account in their appointment
regions intervene in the appointment of at least some members of the
High Court (mixed appointment), or appointments are decided together
with central decisional bodies
regions determine the composition of High Courts
In contrast, the Basic Law for the Federal Republic of Germany (art. 95.2) determines
that the judges of all courts pertaining to the Federal Court “shall be chosen jointly by
the competent Federal Minister and a committee for the selection of judges consisting of
the competent Land ministers and an equal number of members elected by the Bundestag.
Therefore, German Länder score 2 in representation.
Executive control On the other hand, the executive control component measures the
capacity of a region to participate in the decision-making processes that take place in the
governing bodies of the judicial power at a federal level. These governing bodies may have
many duties, ranging from the organization of judicial selection at different levels to decide
upon any disciplinary measures to be taken against any member of the judiciary. Regional
power here is measured through the level of influence regions have in appointing the members
of such governing bodies, if they exist, or in case there is no separate body for governing
the judiciary, in whose hands remains the capacity to enforce disciplinary measures against
judges.
Table 8 presents the categories for this variable. From the data, Spanish regions score 0
in this variable, too, while German Länder score 3. In fact, Germany does not have a unique
governing body for the judiciary, but there is a service court in each Länder, composed by
judges, that is in full charge of deciding and enforcing any disciplinary measures together with
promotions, transfers, appointments, and reppeal. In the UK the situation is asymetrical,
where only Scotland scores 3 in executive control, given that the lord president of the Court
of Session has full authority over all the courts under the Scottish judicial system (except the
14
Table 8: Operationalization of the values of the variable of judicial executive contol.
0:
1:
2:
3:
Executive Control
regions do not intervene in the appointment of members of the governing
body of the judiciary (or don’t have any disciplinary capacity)
regions do not intervene in the appointment of members of teh governing
body, but regional origin of appointees is taken into account in their
appointment
regions participate in the appointment of at least some members of the
governing body of the judiciary (mixed appointment)
regions determine the composition of the members of the governing body
of the judiciary, or have full competence to discipline judges
Supreme Court of the United Kingdom). In 2007, moreover, the Judicial Council for Scotland
was created, composed by judges of all categories from the Scottish judicial system, and with
aim to “provide information and advice to the Lord President of the Court of Session and the
judiciary of Scotland on matters relevant to the administration of justice in Scotland”.11 In
Northern Ireland, the head of the judiciary is the lord Chief Justice, as the president of the
Courts of Northern Ireland. As in judicial recruitment, the election of the lord Chief Justice
for Northern Ireland has been reserved to the Queen (officially) with prior recommendation
from the prime minister of the United Kingdom (through the advice of the lord Chancellor).
Therefore, Northern Ireland has no actual control over judicial executive matters.
Fiscal control Shared rule over the distribution of resources obtained through taxes is a
key element that several authors have usually considered separately from the fiscal authority
of regions. In fact, Marks et al. (2008) created a variable exclusively focused on measuring this
ability to influence decisions over the redistribution of federal-level resources (fiscal control).
Naturally, if this regional capacity is relevant to measure political authority, so it is to measure the role of regions in redistributing resources devoted to the administration of Justice.
However, given that (1) a variable already exists to measure the notion, and that (2) there
is little use in trying to extract the influence of regions in this matter regarding exclusively
regarding judicial matters, the creation of another variable to measure just the same would
be highly redundant. We therefore use that of Marks et al. (2008).
Constitutional courts Almost all studies on regional political power taken into account
the regional intervention in constitutional reform or in Constitutional courts (if any). This
is a very special type of authority that presents problems when trying to measure judicial
authority at the regional level. We find cases in which there is one single Supreme court
with power to both serve as the ultimate court of appeal, and decide upon constitutional
matters. Sometimes, as in Spain or Italy, these functions are carried out by two different
courts. Moreover, sometimes (e.g., Spain), although the Constitutional Court is referred to
as a court (Tribunal Constitucional), in actuality it is not part of the judicial system per se,
nor is it part of the administration of Justice, and its members do not belong to the judiciary.
11
http://scotland-judiciary.org.uk/65/0/Judicial-Council-for-Scotland.
15
Table 9: Original operationalization of the Fiscal control variable made by Marks et al. (2008).
0:
1:
2:
3:
Fiscal Control
regional governments or their representatives in the legislature are not
consulted over the distribution of tax revenues
regional governments or their representatives in the legislature negotiate
over the distribution of tax revenues, but do not have a veto
regions participate in the appointment of at least some members of the
governing body of the judiciary (mixed appointment)
regional governments or their representatives in the legislature have a
veto over the distribution of tax revenues
We believe, in sum, that measuring regional capacity in constitutional matters is not
convenient for our indicator for two main reasons. First, in cases where constitutional matters
and highest appeal are carried out by the same court, this variable would be perfectly collinear
with the two first measures of shared judicial rule (Representation and Executive control),
since they measure precisely that. Second, in cases where the Constitutional court is not part
of the judicial system (e.g. Spain), it would add nothing to measure the judicial capacity of
regions.
4
The Judicial Regional Authority Index
4.1
Judicial Regional Authority Index (JRAI)
The composite indicator of judicial regional authority sinthetizes the two dimensions of judicial
capacity in one single normalized, thus comparable value. Therefore, it may be calculated
from all the components of judicial decentralization:
• Judicial autonomy
• Recruitment capacity
• Judicial design capacity
• Judicial economic autonomy
• Last instance capacity
• Judicial representation
• Judicial executive capacity
• Fiscal control
The formal definition of the Judicial Regional Authority Index is:
JRAIr =
Q
X
q=1
16
Iqr
(1)
where q represents the normalized values of each individual component I of regional judicial authority for each region r. The index has a value range of [0,1].
4.2
Judicial Regional Authority sub-indices
According to our conceptual approach to the notion of regional judicial authority, based on
the separation of self-rule and shared-rule, we may also create two separate indicators:
• A Judicial Self-rule Subindex (JSS)
• A Judicial Shared-rule Subindex (JShS)
4.2.1
Judicial Self-rule Subindex (JSS)
The Judicial Self-rule Subindex (JSS) represents the extent to which regions have a capacity
for governing their own judicial matters—i.e., the self-rule dimension of judicial authority
through the following components:
• Judicial autonomy
• Recruitment capacity
• Judicial design capacity
• Judicial economic autonomy
• Last instance capacity
The formal definition of the Judicial Self-rule Subindex is thus:
JSSr =
Q
X
Aqr
(2)
q=1
where q represents the normalized values of each individual component S of judicial selfrule for each region r. The sub-index has a value range of [0,1].
4.2.2
Judicial Shared-rule Subindex (JShS)
The second dimension of regional judicial authority captures the extent to which regions can
exert some degree of influence in the organization and functioninig of the judicial branch and
the administration of Justice at the upper political level (federal, central or general)—i.e., the
shared-rule dimension through the following components:
• Judicial representation
• Judicial executive capacity
• Fiscal control
17
The formal definition of the JShS sub-index is:
JShSr =
Q
X
(3)
Shqr
q=1
where q represents the normalized values of each individual component Sh of judiicial
shared-rule for each region r. The sub-index has a value range of [0,1].
5
Comparing judicial decentralization
Complete data have been gathered on all the sub-national entities of Germany, Italy, Spain,
and the United Kingdom, for the period 1950-2006.12 In total, then, we have 3,136 region-year
observations for each of the 8 components that constitute the Judicial Regional Authority Index (JRA), totalling around 25,000 region-year-component observations. This section presents
the main results of the Judicial Regional Authority Index (JRAI), and compares the results
obtained for the regions and years in the database. I will first comment on the evolution of
the JRAI index. Secondly, I will explore the evolution of the two subdimensions of the index,
and finally I shall compare the results against data on political decentralization, namely the
Regional Authority Index (RAI) by Marks et al. (2008).
5.1
Changes in judicial decentralization
Table 10 shows basic descriptive statistics for the JRAI index, its subdimensions, and all its
components. Note that only the self-rule and shared-rule dimensions, along with the JRAI
index, are normalized to have values between 0 and 1, while the rest have different value
ranges. Figure 1, on the other hand, presents the average value of the JRAI index for each
year and country in the current database,13 unconvering sharp differences between cases.14
Table 10: Descriptive statistics of the main components of the Judicial Regional Authority Index.
Statistic
Judicial autonomy
Recruitment capacity
Judicial design
Judicial Economic autonomy
Ultimate decision
Representation
Executive control
Fiscal control
Judicial self-rule
Judicial shared-rule
JRAI
N
Mean
St. Dev.
Min
Max
874
874
874
874
874
874
874
874
874
874
874
0.587
0.695
0.219
0.474
1.348
0.144
0.391
0.784
0.201
0.147
0.181
1.191
1.344
0.399
1.345
0.884
0.518
1.011
0.540
0.237
0.171
0.206
0
0
0
0
0
0
0
0
0
0
0
3
4
1.5
5
2
2
3
2
0.879
0.778
0.841
In effect, the plot shows four different realities at least in two ways. On the one hand,
regarding temporal evolution, two distinct groups may be observed; those countries whose
12
Except Spain, where autonomous communities are not given legal status until 1978.
Country scores are calculated through the average of the scores of the regions within that country.
14
Complete country scores in the index and its subdimensions can be seen in Appendix A.
13
18
0.6
GER
0.4
UK
0.2
Mean JRAI
0.8
1.0
regions experience multiple changes in time (UK and Spain), and those whose regions present
a more stable, almost flat evolution in terms of judicial power (Germany and Italy). On
the other hand, difference is also perceived in the level of judicial authority itself, the four
countries representing four distinct cases.
ES
0.0
IT
1950
1960
1970
1980
1990
2000
Figure 1: Compared evolution of the Judicial Regional Authority Index (JRAI) for Germany, Italy,
Spain, and the United Kingdom (1950-2006).
Italy is the case with a lower level of regional judicial authority and with lower level of
change in time, while at the other end we find Germany, with the higher level of judicial
decentralization in the database (0.84). In between, Spanish regions show lower levels of
judicial power compared to the UK and Germany, just above Italy. However, Spain presents
a more gradual pattern of variation in time. With an average value of 0.16 in 2006, Spain has
doubled its average level of regional judicial authority in a short period of time.
Finally, the data show that the United Kingdom is the case with a higher level of variation
in time. Moreover, it is the only case with dramatic decreases in the average value of JRAI
during the period under study (with the slight exception of Italy). This negative change in
the index in the average Brisith regions’ judicial capacity, though, is due to the inclusion of
Wales as a distinct region in 1963, but with no judicial capacity. In general terms, however,
the United Kingdom has experiended a notable increase in regional judicial autonomy during
this period.
But, are changes in regional judicial capacity due to changes in the judicial self rule or
evolution is mostly explained through an increasing capacity of regions to influence judicial
matters at the federal level? Figure 2 shows two panels. The left panel shows the evolution
of the regional judicial self rule in each country, while the right panel delivers the same
information for the judicial shared rule. On the left side, the data show that neither German
Länder nor Italian regions have experienced any changes in their capacity to govern their own
19
1.0
Judicial Shared−rule
1.0
Judicial Self−rule
0.8
0.8
GER
0.4
UK
0.6
0.4
Mean IPJC
Mean IAJ
0.6
GER
0.2
0.2
UK
ES
IT
ES
0.0
0.0
IT
1950
1960
1970
1980
1990
2000
(a) Judicial self rule by countries, 1950-2006.
1950
1960
1970
1980
1990
2000
(b) Judicial shared rule by countries, 1950-2006.
Figure 2: Evolution of the values of the JRAI subdimensions. The value corresponding to each
country for each year is the average of the scores obtained by each region each year.
judicial matters (at both extremes of the measure) between 1950 and 2006. As a general
pattern, though, it can be observed that countries tend to present higher levels of regional
judicial self rule than shared judicial rule.
Situations in the United Kingdom and Spain, on the other hand, are evidently different,
the British case showing dramatic shifts in particular moments in time. For that case we may
observe, first, that as noted above the incorporation of Wales as a region in 1963 entails a
drecrease of the average level of judicial self rule that doesn’t reach prior levels until 2000 and
beyond. In contrast, the right panel shows that the capacity of British regions to influence
judicial matters at the general level (shared rule) is not as senstitive to the incorporation of
Wales as it was in the previous indicator, but that it is extremely sensitive to the consitutional
reforms of 2005, that raise the average level of judicial self rule to 0.46, a higher value than
the judicial self rule.
Spain, on the other hand, shows this difference in a clearer way. In fact, the separation
of both dimensions of the judicial authority index uncovers the fact that the few reforms
carried out to give Spanish regions some judicial power have been exclusively focused on their
ability to have some degree of power in managing the administration of Justice within their
own boundaries, but not in their participation in deciding upon judicial affairs at the central
level.15 Therefore, all the evolution in regional judicial authority in Spain has taken place
in the judicial self rule dimension, while in judicial shared rule Spain and Italy share very
modest development.
15
The bump observed in Spain in the early 1980s is due to the incorporation of new regions to the general
level of fiscal control. From then on, the level is steady.
20
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Figure 3: Relationship between political decentralization (RAI) and judicial decentralization (JRAI)
in the four countries within our dataset. Points represent the yearly position of each country in both
indicators, and colors distinguish each country.
5.2
Judicial and political decentralization
Is there any relationship between processes of political and judicial decentralization? Should
both processes take place in parallel, we would expect to find correspondence between the
JRAI and the RAI indicators. Figure 3 shows this relationship where countries are distinguished by color. Each point represents a country for each year between 1950 and 2006 (except
Spain, that begins in 1978). Given that, as seen above, change in judicial decentralization
keeps unchanged for several years, serveral points are overlapped and cannot be distinguished.
This is most evident in the case of Germany. Apart from the coincidence between both levels of decentralization in the case of Germany, the figure allows for the observation of two
different phenomena.
The first one is that during the period under study, the change within countries is experienced horizontally, that is, countries have evolved mainly in their processes of political
decentralization (the x axis in the figure), but movements in the vertical axis (judicial decentralization) has been rather modest. The second phenomenon is that the only abrupt change
in judicial decentralization is found in the United Kingdom (blue dots), but when this change
takes place the evolution is exclusively vertical, and not at the same time that regions are
evolving politically.
This preliminary graphical evidence seems to indicate, therefore, that despite there might
be some relationship between political and judicial processes of decentralization (e.g., Germany), this relationship is not evident in most cases. Nevertheless, at the country level this
relationship is only of relative interest. Exploring whether this relationship exists at the regional level is, indeed, far more relevant. This is what Figure 4 shows, where each data point
21
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Figure 4: Relationship between political decentralization (RAI) and judicial decentrlization (JRAI)
for all the regions in the database (1950-2006). Points represent the position of each region in each
year in both indicators, and colors distinguish the countries to which each region belongs. Noise has
been added to the data so that several points in the same position can be distinguished.
represents the position in both political and judicial authority of one region in a particular
year. In order to avoid the visual effect of overlapping points, some noise has been added to
the data (R Core Team 2013).
The first thing that may be observed in the figure is that in general terms, regions in
each country tend to “move” in one single region of the plot, with the exception of the United
Kingdom. This may be relevant to study comparative decentralization processes, because the
patterns followed by regions reflect the interaction between the structure of preferences of the
actors implied in the process, on one hand, and the institutional limits to which these processes
are bound. In other words, the relationship between both variables (RAI and JRAI) point—
despite the limited scope of our current data—to the existence of three models of relationship
between political and judicial autonomy.
According to this, the Italian and Spanish cases, represented by the red and green colors,
respectively, tend to shape a uniform, horizontal distribution. This means that their regions
have experienced different levels of decentralization but that these processes, on one hand,
have taken place mainly in the political dimension but not in the judicial realm, and on the
other, almost all regions within the country have experienced similar levels of decentralization.
This first model, then, defines a mainly political and rigid evolution. Later in section 6, the
Spanish model is explored with further detail.
The second model, to some extent opposite to the first one, is represented by the United
22
Kingdom. The British case shows, first, that it is possible to have regions with moderate levels
of judicial decentralization combined with null levels of political autonomy. Apart from that,
secondly, the British model presents a very high level of heterogeneity in the decentralization
processes within the country, which points to higher levels of flexibility (compared to the
former model) that allow for the coexistence of separate models under one single political
system: on one hand, Scotland presents high levels of autonomy in both dimensions (political
and judicial, upper right part of the graphic, in blue); on the other, Northern Ireland and
Wales, in which we find the combination of high levels of judicial decentralization with low
political power (Northern Ireland until very recently), or some advances in political autonomy
without any development of judicial decentralization (Wales).
Finally, the third model is represented by the federal case of Germany, and it would point
to a model, on one hand, with high levels of both political and judicial decentralization, and
on the other with low levels of flexibility (high uniformity) in so far all regions share the
same levels of development. In any case, though, further data should be collected to test the
existence of such models.
However, if we turn one more time to Figure 4 we may observe that, even when we
analyze the regional cases, the increasing movements along the political dimension of regional
authority (horizontal axis) are not always followed by vertical increases in judicial autonomy.
Figure 5 shows exactly the same data with the addition of a loess curve (Cleveland 1994) that
indicates a marked non-linear pattern in the data.
In fact, the Spanish and British cases (green and blue, respectively) are two clear examples
of non-linear relationship between both variables: the moves along both axes are produced
either horizontally or vertically, but it is extremely rare to observe a region that experiences
gains in political and judicial autonomy simultaneously. Should that be the case, it would
indicate that both types of decentralization are related, but our (limited) data seem to indicate
that although there are situations in which both types of decentralization coincide (Germany
and at some point Scotland), it is not only the case that the relationship between one type of
decentralization and the other seems to be weak, but the evolution of the regions covered by
the dataset has taken place mainly in the political dimension of autonomy, not in the judicial
one. In Figure 5 this fact is evident for the United Kingdom. For instance, in the upper left
part of the plot, the upper blue dots (that represent Scotland) could achieve relatively high
levels of judicial autonomy without having noteworthy levels of political power. In the next
section we briefly explore the use of our data to account for variations in regional judicial
capacity within one single political system.
6
Political and judicial decentralization in Spain: an empirical
exploration
In the last section we have observed an interesting phenomenon: in the processes of political
and judicial decentralization, regions tend to “move” within a bounded space. The boundaries
of this space are a function, on one hand, of changes in the structure and distribution of
preferences among key decision-makers (citizens and elites) and, on the other, it is affected
by the institutional paths and designs wihtin which this interaction takes place. It is only
fair to assume these two limits are not independent, given that the institutional structure of
democratic regimes can be conceived of as an equilibrium in a context of conflictive preferer23
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Regional Authority Index (RAI)
Figure 5: Relationship between political decentralization (RAI) and judicial decentrlization (JRAI)
for all the regions in the database (1950-2006), with the addition of a loess curve that represents the
non-linear relationship between the variables. Points represent the position of each region in each year
in both indicators, and colors distinguish the countries to which each region belongs. Noise has been
added to the data so that several points in the same position can be distinguished.
ences (Przeworski 2004, 2005) that not only determines specific institutional designs, but also
the mechanisms that facilitate (or impede) reform—i.e., institutional rigidity towards their
future reform (Greif and Laitin 2004). In this sense, our data could help exploring models of
institutional path dependence (North 1990).
Figure 6 shows the evolution of our indicator of judicial decentralization (JRAI) for all
the Spanish autonomous communities, between 1978 and 2006. In all these years, judicial
decentralization in Spain has been modest in two ways. First, the maximum level of judicial
decentralization achieved by a Spanish region has been of only 0.25. Second, only a few autonomous communities have reached this rather modest threshold. In fact, only four Spanish
regions have reached this relative maximum level, and Figure 6 uncovers the existence of three
distinct moments.
The first one begins at the outset of the Spanish democracy (1978) until the mid 1980s,
and is characterized by a first and very limited acquisition of competence of the Spanish regions. At this time, the low level of judicial development is widely shared by all regions. From
1986 until the mid 1990s, though, the two most politically advanced autonomous communities
(Basque Country and Catalonia) start acquiring further competences in judicial matters: the
acknowledgement of a limited participation in the design of judicial districts, some responsabilities in providing material resources to the administration of Justice, and the recruitment
24
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Figure 6: Evolution of judicial decentralization (JRAI) in all Spanish autonomous communities
(1978-2006). Dots represent the position of each region each year. Noise has been added to the data
so that overlapping dots can be distinguished.
of some adminsitrative staff. Most of the other regions, though, remained in the lower levels of judicial power. Finally, from 1996 a new period begins when some other autonomous
communities start acquiring further judicial power, and Catalonia and the Basque Country
(followed by Galicia) reach a new maximum (0.25).
The unequal evolution of regional capacities in the Spanish process of judicial decentralization resembles the different paces followed by Spanish regions in strengthening their political
autonomy, summarized by the fact that regional access to autonomy was regulated by different
articles in the newly approved constitution, and therefore a few regions (Catalonia, Basque
Country, Galicia and Andalusia, regulated by art. 151 CE16 ) were given a wider bundle of
powers than the rest (art. 143 and 144 CE) from the outset. Figure 7 shows how regional
autonomy in Spain has been distributed among regions, with three clear moments of regional
reform that have progressively brought the regional system to a more homogeneous distribution in levels of political autonomy. But, are those regions that enjoyed a wider political
autonomy from the outset those who developed higher levels of judicial capacity in the following years? Or, in other words, are increaes in judicial autonomy the result of an increase
in regional political power?
Figure 8 shows the evolution of the JRAI index among Spanish regions taking into account their level of initial access to political autonomy. Red and green dots indicate regions
with lower levels of political autonomy at the moment of their creation (ordinary regions),
16
CE stands for Constitución Española, Spanish Constitution.
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Figure 7: Evolution of the the level of political autonomy of Spanish regions between 1978 and 2006,
measured through Marks et al.’s (2008) Regional Authority Index. Black dots represent the position
of each region for each year. The loess curve reflects the existence of three different stages of increase
in political autonomy of regions. Noise has been added to the data so that overlapping dots can be
perceived.
while black dots show the evolution of the four initially more developed regions. Data show
that none of the ordinary regions achieved any significant level of judicial capacity until the
mid 1990s, when most of them reformed their statutes of autonomy (Aja 2003), followed by
the acquisition of further political powers. From that moment on, however, most of them
remained at minimum levels of judicial capacity, with very few exceptions, although their
levels of political autonomy were increasingly similar to that of the most advanced regions.
For instance, while the region of Navarre acquired the maximum level of powers in judicial
matters at once, Canary Islands, Valencian Community, Madrid and Asturias experienced no
changes in their levels of judicial autonomy.
On the other hand, the evolution of judicial autonomy among the four most “advanced”
autonomous communities neither presents a clear uniformity. Figure 9 presents only those
four cases and plots their evolution in judicial capacity. The data show how only the Basque
Country and Catalonia opt for higher levels of judicial capacity at very early stages, while
Andalusia chose to remain at lower levels, and Galicia performs a dramatic shift from the
minimum to the maximum in one single year.
Therefore, the question remains: to what extent there is a systematic relationship between
the levels of political and judicial autonomy in the process of decentralization in Spain? Should
there be a strong relationship between both processes, we would observe that those regions
26
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Figure 8: Evolution of judicial autonomy (JRAI) in all Spanish autonomous communities according
to their initial level of access to autonomy (1979-2006). Dots represent each region each year, levels of
access to autonomy are distinguished by color, where black indicates the most advanced level. Noise
has been added so that overlapping dots can be distinguished.
with higher levels of political power tend to achieve also higher levels of judicial capacity, while
those regions with lower levels of political autonomy present lower levels of judicial power.
Let’s test this simple hypothesis.
Figure 10 shows the relationship between judicial capacity (JRAI) and political autonomy
(RAI (Marks et al. 2008)) for all the Spanish regions. The data show a complex pattern,
suggesting that modest levels of judicial capacity are oly achieved at certain threshold of
political autonomy. However, firm conclusions cannot be drawn.
In order to further test the relationship between both variables, we regress the level of
judicial capacity (JRAI) of Spanish regions on their level of political autonomy (RAI). In order
to address the needs derived from the panel structure of our data (we have several observations
for each region, one per year), we take the following steps. First, we fit a model in which we
just regress the Judicial Regional Authority Index (JRAI) on the level of political autonomy
(RAI), controlling only for autocorrelation in JRAI (including the lagged dependent variable
as a predictor). Second, we fit the same model but including a control for the initial level of
access to autonomy in 1978, i.e., the regional level of autonomy at the outset. Third, we fit
the model including year fixed effects, to try to capture the effect of particular years in which
general regional reforms took place. Finally, a last model includes also regional fixed effects
in order to capture the individual effect of some regions (thus dropping constitutional status
form the model).
27
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Figure 9: Evolution of the judicial autonomy (JRA) among the more politically powerful Spanish
regions, regulated by article 151 of the Spanish Constitution (151CE): Catalonia, Basque Country,
Galicia and Andalusia. Noise has been added to the data so that overlapped dots can be perceived.
Table 11 presents the results. In the first column the model shows a significant positive
effect of the level of political autonomy, although the effect is small.17 We observe, though,
that the relationship holds even when the model includes controls for the initial level of access
of the regions to autonomy. Here the reference category is the extraordinary constitutional
status of Catalonia, Basque Country, Galicia and Andalusia. We further distinguish between
two ordinary levels of access: the first one refers to most autonomous communities created
during the late 1970s and early 1980s, while the second level stands for the two Spanish
enclaves in the north of Africa (Ceuta and Melilla), which were given status of region in the
mid 1990s. The model, therefore, shows that having an ordinary access to autonomy (wether
past or recent) had also a negative effect on the level of judicial capacity of regions. The model,
however, shows in the third and fourth columns that when we control for the individual effects
of regions and years the effect of political autonomy on political regional power disappears,
suggesting that the agendas driving regional political development and judicial capacity may
be separated, contrary to what our hypothesis expected.
17
Both indicators of autonomy (JRAI and RAI) are scaled to range [0,1].
28
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0.10
Judicial Regional Authority Index (JRAI)
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10
11
12
13
14
15
Regional Authority Index (RAI)
Figure 10: Relationship between the level of political autonomy (RAI) and judicial regional power
(JRAI) in all Spanish autonomous communities (1978-2006). The curve points out the non-linear
relationship. Noise has been added so that overlapping data points can be distinguished.
7
Conclusions
This paper presents a new tool to measure the evolution of regional judicial autonomy. Its
main contribution is two fold. On one hand, it provides an operationalization of the legal
structure of the multi-level organization of the administration of Justice in a number of cases.
On the other, it makes use of this operationalization to build an empirical composite indicator
of judicial autonomy that (1) takes the region as the unit of analysis and (2) allows for the
elaboration and testing of analytical models to be tested against data.
The first part of the paper has emphasized that the literature on federalism, political or
judicial, and on models of decentralization has tended (1) to disciplinary isolation, (2) to
focus on a few number of cases without generalizable power, and (3) to emphasize the role
of high courts as referees in conflict management and resolution between federal governments
and the federal states, leaving aside differences in models of territorial structuration of the
political power. In this sense, the inclusion of the judicial dimension related to the organization of a decentralized administration of Justice, taking the region as the unit of analysis,
and the combination of this knowledge in one single, empirical measure constitute the main
contributions to the literature on federalism.
The second part of the paper has described and presented the steps carried out to build
the Judicial Regional Authority Index (JRAI), with the aim of adding a judicial dimension
to existing notions of regional autonomy that focus mainly on political issues. To to so, I
29
Table 11: Results of the OLS regression of judicial autonomy (JRAI) on the level of regional political
power (RAI), for all Spanish regions, 1979-2006.
Dependent variable:
Judicial Regional Authority Index (JRAI)
(1)
Lagged JRAI
Political autonomy (RAI)
Level of access:
ordinary
Level of access:
Ceuta & Melilla
Year fixed effects
(not shown)
Year and region fixed
effects (not shown)
Constant
Observations
R2
Residual Std. Error
∗∗∗
(2)
∗∗∗
(3)
(4)
0.041
(0.001)
0.002∗∗
(0.001)
0.040
(0.001)
0.002∗∗
(0.001)
−0.005∗∗∗
(0.002)
−0.005∗∗
(0.002)
0.040
(0.001)
0.001
(0.001)
−0.006∗∗∗
(0.002)
−0.006∗∗
(0.002)
0.037∗∗∗
(0.001)
−0.002
(0.002)
0.133∗∗∗
(0.001)
0.137∗∗∗
(0.001)
0.136∗∗∗
(0.008)
0.128∗∗∗
(0.009)
470
0.926
0.012 (df = 467)
470
0.928
0.012 (df = 465)
470
0.934
0.011 (df = 438)
470
0.937
0.011 (df = 422)
∗
Note:
∗∗∗
p<0.1;
∗∗
p<0.05;
∗∗∗
p<0.01
have adapted the methodology established by Marks et al. (2008) to build the widely used
and influential Regional Authority Index. This provides the JRAI with a stabble, proven
methodological and analytical framework to build indicators of regional autonomy. Moreover,
it enables the use of both indicators in a complementary way.
Finally, the third part of this work has tested the Judicial Regional Authority Index
(JRAI) with actual data in order to take on two basic questions. First, to what extent the
JRAI allows for the identification of different models of judicial decentralization. Secondly,
whether the indicator of judicial decentralization can help further understanding particular
processes of political an judicial decentralization.
First, observing the cases for which whe have data, the indicator proves sensitive to the
variations between countries, thus complying with one of the basic objective of such tools. In
particular, data show four different models in terms of judicial development in both temporal
and substantive terms. On one hand, data single out countries whose regions have achieved
distinct levels of judicial autonomy, and countries whose regions, regardless of their levels of
autonomy, experience very few changes during the period under study. Secondly, regarding
the value of the level of judicial autonomy itself, the indicator points to the existence of four
different scenarios.
Actually, the data show that when change in autonomy has taken place, it has not taken a
homogeneous pattern either in judicial self rule or shared rule. A clear example was delivered
by the data on Spain, where there is almost null judicial shared rule among regions. In fact,
until 2005 all countries present higher values in judicial self rule than shared rule.
Regarding the relationship between political and judicial decentralization, the data enable
30
the observation that, first, during the period 1950-2006 the evolution within countries takes
place eminently in the political dimension, and second, the only abrupt change in judicial
decentralization takes place in the United Kingdom, but when it occurs it is exclusively
judicial, and not political.
The preliminary evidence, therefore, suggests that even though some relationship may
exist between both dimensions of decentralization, this relationship disappears in some cases.
To tets this suggestion, though, focus has to be put on the regional cases.
Doing so, data suggest the existence of three models of relationship between political and
judicial decentralization. The first one is featured by Italian regions and Spanish autonomous
communities, showing a uniform evolution (very few differences between regions) and mostly
political decentralization. The second model is the opposite, featured by the regions in the
UK: coexistence of high levels of judicial decentralization with no political autonomy (e.g.,
Scotland during most of the period), and a high level of flexibility or heterogeneity, allowing
the coexistence of regions with large differences in both dimensions. And finally, a third model
is highly rigid (like Spain and Italy) with no differences among regions and no changes in time,
but allowing the full development of both political and judicial autonomy from the outset.
A brief exploration of the specific relationship between political development and judicial
autonomy in Spain, finally, suggests that these data can provide a solid basis to empirically
test the complex dynamics of political devolution and the extent to which agendas for political
and judicial decentralization follow distinct paths.
Despite the clear limits of the data, the fact that the current database is so sensitive as
to suggest these differences emphasizes the need to further explore the complex relationships
between political and judicial power, and gives promise to our measurement instrument.
Therefore, it is convenient to gather further data and to measure the judicial capacity of a
greater number of regions and uncover unexplored patterns of multilevel politics.
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35
A
The JRAI index and its components
Table 12: Values of the JRAI index and its components for the cases in our database. Values are
averages of the regions within each country.
year
1950
1951
1952
1953
1954
1955
1956
1957
1958
1959
1960
1961
1962
1963
1964
1965
1966
1967
1968
1969
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
JRAI
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.04
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.03
0.06
0.06
0.06
0.06
0.06
0.06
Italy
self rule
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
shared rule
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.07
0.15
0.15
0.15
0.15
0.15
0.15
JRAI
0.76
0.76
0.76
0.76
0.76
0.76
0.76
0.76
0.76
0.76
0.76
0.76
0.76
0.76
0.76
0.76
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
0.84
Germany
self rule
shared rule
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.56
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
0.88
0.78
36
JRAI
0.33
0.33
0.33
0.33
0.33
0.33
0.33
0.33
0.33
0.33
0.33
0.33
0.33
0.33
0.22
0.22
0.22
0.22
0.22
0.22
0.22
0.22
0.22
0.22
0.22
0.22
0.22
0.22
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.23
0.29
0.29
0.29
0.29
0.29
0.42
0.42
United Kingdom
self rule
shared rule
0.42
0.17
0.42
0.17
0.42
0.17
0.42
0.17
0.42
0.17
0.42
0.17
0.42
0.17
0.42
0.17
0.42
0.17
0.42
0.17
0.42
0.17
0.42
0.17
0.42
0.17
0.42
0.17
0.28
0.11
0.28
0.11
0.28
0.11
0.28
0.11
0.28
0.11
0.28
0.11
0.28
0.11
0.28
0.11
0.28
0.11
0.28
0.11
0.28
0.11
0.28
0.11
0.28
0.11
0.28
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.30
0.11
0.40
0.11
0.40
0.11
0.40
0.11
0.40
0.11
0.40
0.11
0.46
0.33
0.46
0.33
JRAI
0.08
0.10
0.10
0.11
0.11
0.11
0.11
0.11
0.12
0.12
0.12
0.12
0.12
0.12
0.12
0.12
0.12
0.13
0.14
0.15
0.15
0.15
0.15
0.15
0.15
0.16
0.16
0.16
0.16
Spain
self rule
0.12
0.12
0.12
0.12
0.12
0.12
0.12
0.12
0.12
0.12
0.12
0.13
0.13
0.14
0.14
0.14
0.14
0.14
0.16
0.17
0.17
0.18
0.18
0.18
0.18
0.19
0.19
0.19
0.19
shared rule
0.00
0.06
0.06
0.08
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11
0.11