Judicial Autonomy under Authoritarian Attack: Patterns and Possible Strategies of Resilience

The paper presents the conceptual framework, empirical design, and first outcomes of the ongoing research project “Judicial Autonomy under Authoritarian Attack: Patterns and Possible Strategies of Resilience”. The research contributes to the theoretical debate about the foundations of judicial autonomy as one of the main pillars of a democratic state under the rule of law. More specifically, it aims to identify the causes of the often-times empirically observed discrepancies between the levels of de jure and de facto judicial independence. For this purpose, we collected a comprehensive data-set of all legal provisions concerning individual judges’ rights, obligations and working conditions as well as the administrative and budgetary autonomy of courts in 43 Council of Europe (CoE) member states. By systematically documenting any legal changes in this regard over the last 22 years, we focus on judicial reforms as central elements in the study of democratic decay in general and attacks against the separation of power and independent judiciaries in particular. While the reforms are usually introduced by governments with the justification of strengthening the judiciary and thus protecting its autonomy, on a closer inspection, and in conjunction with other amendments in a particular setting, they may instead result in weakening or even undermining de facto judicial autonomy. Only by systematically comparing the normative settings and introduced amendments in a medium-N design, possible patterns of such “toxic” institutional designs may be detected – and, on the other hand, strategies strengthening the courts’ capacity to implement formal and informal resilience tools may be identified. Designed as a fuzzy-set Qualitative Comparative Analysis (fsQCA), the research project tracks the norms guaranteeing judicial autonomy and their changes at both the apex courts’ and the ordinary courts’ (of the first, second and last instance) levels by using two sets of detailed questionnaires. The current phase of analysis of the collected data allows us to draw a comparison between the reforms of various types of courts and to identify causal explanations, significant combinations and intra-case variances of the institutional and judicial features under investigation. In the final phase of the research, the thorough assessment of the fsQCA will inform the selection of specific country cases to be studied in greater detail, including the implementation of the law and practice within the selected CoE member states as well as the "travelling" of legal arrangements and/or practices from country to country. In a nutshell, the project aims at answering three main questions: 1) What normative provisions exist to protect judicial autonomy in the CoE member states, how do they differ, and how did they evolve over time? 2) Which legal, institutional, and political constellations can we identify that either protect or endanger the autonomy of the judiciary? 3) Are there particular normative patterns that help to make judiciaries (more) resilient against authoritarian attacks and the resulting democratic decay?