Perception, Performance, and
Politics
Recent Approaches to the Qualitative
Comparison of Civil Justice Systems
Dr. Christoph Kern, LL.M. (Harvard)
Outline
I.
Introduction
II.
Difficulties in Measuring and Comparing Judicial
Quality
III. Recent Surveys and the Role of Politics
1.
The so-called “Lex Mundi Study” on
Procedural Formalism
2.
The 2008 Business Survey Conducted by
Clifford Chance and the University of Oxford’s
Institute of European and Comparative Law
IV. Conclusion
I. Introduction
• Cross-country comparisons of civil justice systems
– Independent surveys focusing on judicial quality (or one
aspect of quality) alone
• E.g., Transparency International, Corruption Perception Index;
European Commission for the Efficiency of Justice, European
Legal Systems
– General country rankings
• E.g., EBRD & World Bank, World Business Environment
Survey; PRS Group, International Country Risk Guide; BERI,
Operation Risk Index
– Variable in econometric research
• E.g., Djankov et al., Courts (“Lex Mundi Study”)
II. Measuring and Comparing Judicial Quality
Performance
(objective data)
Results
Process
Perception
(subjective data)
II. Measuring and Comparing Judicial Quality
Performance
(objective data)
Results
Process
Difficulties:
- Suitable proxies
- External data collected
according to divergent
definitions
- External factors (legal
system, culture) affect
significance
Perception
(subjective data)
II. Measuring and Comparing Judicial Quality
Performance
(objective data)
Perception
(subjective data)
Results
Process
Difficulties:
- Suitable proxies
- External data collected
according to divergent
definitions
- External factors (legal
system, culture) affect
significance
Difficulties:
- General problems of
subjective data
- Abstract nature of the
subject “judicial quality”
- Externalities (culture,
ideology, media
coverage)
II. Measuring and Comparing Judicial Quality
Performance
(objective data)
Results
Process
- Legal correctness and
accuracy
- Justice and fairness
- “True” resolution of
disputes
Perception
(subjective data)
II. Measuring and Comparing Judicial Quality
Performance
(objective data)
Results
Process
-
Duration
Costs
Procedural fairness
Legitimacy
Perception
(subjective data)
II. Measuring and Comparing Judicial Quality
Performance
(objective data)
Results
Process
Perception
(subjective data)
Advantages:
- Avoids the difficulties of
collecting objective data
- Framing of questions
- Law in action
Problems:
- Whose Perceptions?
- Number of respondents
- Clarity of questions
- Interpretation
III. Recent Surveys and the Role of Politics
• Institutionalist Tradition
– Institutional environment = important factor for a country’s
political and economic development (North 1990)
– Civil justice systems = part of a country’s institutional
environment
– “The better the functioning of the civil justice system, the
higher the economic prosperity”
•
Uses for comparative data on judicial quality
– Causation between judicial quality and growth
– Causation between institutional design and judicial quality
– Judicial quality as a control
III. Recent Surveys and the Role of Politics
1.
The Lex Mundi Study on Procedural Formalism
Finds a relationship between
• Legal origin
• Level of procedural formalism
• Quality of the judicial system
Problems:
• Only two model cases which are not meaningful
(Check collection and eviction of residential tenant)
• Debatable concept of procedural formalism
• Ambiguous questions
• Questionable classification of legal origins
 Hidden benchmarking?
III. Recent Surveys and the Role of Politics
1.
The Lex Mundi Study on Procedural Formalism
Importance of the study
• Sponsored by the World Bank
• May serve as basis for
–
–
recommendations to developing countries
specific requirements and conditions on how a borrowing
country has to reform its legal system
• Possibly powerful impact on future development
 Much at stake for various parties
 Influence of politics on the results?
III. Recent Surveys and the Role of Politics
2.
The 2008 Business Survey
About causation between
• the civil justice system
• the choice of forum
• the choice of law
Perception data from non experts
 Respondents may be influenced by
- law marketing
- their counsel
IV. Conclusion
“Cross-national studies … are just a beginning
that point us in the right direction”
Dani Rodrik, Arvind Subramanian & Francesco Trebbi,
Institutions Rule: The Primacy of Institutions over
Geography and Integration in Economic Development,
9 J. Econ. Growth 131, 158 (2004).