A Tale of Two Transitions: Exploring the Origins of Post-Communist Judicial Culture in Romania and the Czech Republic

Abstract

Abstract: Much of the debate about the rule of law in democratizing states centers on formal institutional design as the key to building a democratic judiciary. While acknowledging the importance of a good institutional blueprint, I argue that superior institutional rules do not necessarily lead to a healthy judicial culture that enshrines democratic principles and compels actors within the judiciary to take the formal rules seriously. Drawing on nearly 400 original survey and interview responses from judges in Romania and the Czech Republic, this article offers an empirical overview of aggregate-level trends across several key dimensions of judicial culture, including perceptions of judicial independence, attitudes toward corruption in the judiciary, and the professional satisfaction and commitment of judges. The findings of the study not only run counter to the institutionalist thesis that better institutional rules will produce a more democratic judiciary, they suggest an important theoretical linkage between judicial culture and patterns of trust in the self-governing institutions of the judiciary. (1) Keywords: Czech Republic, democratization, judicial culture, Romania, rule of law ********** In both academic and policy circles, the "rule of law" (2) is often treated as a kind of panacea for democratizing states--at once credited with protecting the basic rights and liberties of citizens, providing a key horizontal check on government power, and laying the institutional groundwork for a functioning market economy. (3) In turn, a substantial body of literature has emerged in recent years examining the development of the rule of law in politically transitioning states around the world, including a significant corpus of research focused specifically on the challenges faced by transitioning legal systems in the post-Communist region. One of the clearest themes in this literature is the importance of institutional design in the post-Communist legal reform process. More specifically, reform advocates argue that by crafting institutional rules that encourage judicial independence and protect against political interference in the judiciary, policymakers can stave off corruption and lay the foundations for the democratic rule of law. However, empirical studies of courts in the region tell a different story, indicating that court performance is seldom a direct function of formal institutional powers and protections. Moreover, a large body of social science research suggests that formal legal institutions, like other political and social institutions, are shaped by powerful informal rules and norms that may contradict or undercut the effectiveness of formal procedures and safeguards. Following these insights, the present study explores the role of the judiciary's informal culture in the process of post-Communist legal reform. While acknowledging the importance of a good institutional blueprint, I argue that superior institutional rules do not necessarily lead to a healthy judicial culture--i.e., one that enshrines democratic principles and compels actors within the judiciary to take the formal rules seriously. Rather, the informal culture of the judiciary reflects a variety of concerns beyond the bounds of formal institutional design, which often work at cross purposes with formal structures and safeguards designed to foster transparency and judicial independence. In turn, if we are interested in building the rule of law in the transitioning states of the region, I argue that we must focus not only on designing good institutions, but on promoting an informal judicial culture that contributes to that goal, rather than working against it. Drawing on nearly 400 original survey and interview responses from judges in Romania and the Czech Republic, this article offers an empirical overview of aggregate-level trends in judicial culture in two post-Communist states. Surveying several key dimensions of informal culture--including perceptions of judicial autonomy, attitudes toward corruption and professional misconduct, and the professional satisfaction and commitment of judges--I demonstrate that macro-level attitudinal patterns in the two cases run counter to the institutionalist thesis that better institutional rules will produce a more democratic judiciary. …