Measuring the Judicial Power of Regions:A Judicial Regional Authority Index∗

Joan-Josep Vallbé

University of Barcelona, Catalonia (Spain)vallbe@ub.edu

Instituut voor Informatierecht, Universiteit van Amsterdam (Netherlands)j.j.vallbefernandez@uva.nl

March 30, 2014

Abstract

Due to its special political nature, the attention given to high court selection processeshas tended to focus either on the selection process itself and on the relationship andtensions between governments and justices on features such as ideology or policy issuesat the federal level. Yet, the articulation of some jurisdictional authority among thedifferent judicial and administrative components of decentralized political systems hasled to a number of other relevant known tensions. In this context, though, the role ofsub-national entities on the dynamics of high court selection and behavior still lacks asystematic or unified approach. On one hand, only a few cases of federal arrangementsallow for some kind of state-level participation in high court judicial selection. On theother, it is still not clear what is the relationship between these provisions of judicialfederalism and the dynamics of political decentralization and regional authority. To dealwith these shortcomings, this paper presents the Judicial Regional Authority Index, acomposite indicator of seven dimensions of regional judicial power including the roleof regions in high court appointments and decision-making, that currently covers the1950-2006 period for a sample of cases within different models of decentralization. Theresults show that the indicator has enough granularity to account for subtle differencesin 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 betweenpolitical-judicial dynamics and multi-level governance.

1 Introduction

The articulation of some jurisdictional authority among the different (judicial or administra-tive) 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 fundedby 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 hostingme at VU Amsterdam, where this draft was written.

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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 foundto take place either between federal (or central) level courts and the other branches of thepolity; between regional governments and federal courts; between federal courts and the otherbranches of regional government; or even between federal/central and regional courts.

These phenomena have been dealt with by a literature that is thematically plural (withinthe 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 predominenceof research based on case studies.

These last two common features have had serious implications on the empirical approachto the comparative study of the judicial component of decentralized political systems. Onone hand, the difficulty to meet the demmanding methodological standards associated tothe successful development of case studies has produced research with limited generalizationpower. On the other hand, most legal technical approaches have tended to stress out theparticularities of the judicial organization in single cases (whether federal or regional) thanto try to find a common language to allow for systematic, empirical comparisons among andwithin systems. As a consequence, the existence of differences, similarities or simply patternsin 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 organi-zation of the judicial power?

2. Do different models of political decentralization produce systematically distinct modelsof judicial decentralization?

These are relevant questions that, as said above, have not yet found answers in the liter-ature. The existence of distinct, sub-federal judicial systems seems to be a defining featureof federalism (Aparicio 2013, Arbós 2013), but while each Land in the federal Germany andeach U.S. state haver their own judicial system, Landër in federal Austria largely lack judicialcapacity. Even more, should the territorial organization of judicial power be a key element ofthe capacity of sub-national entities to make autonomous decisions, then the judicial power ofregions should be taken into account to measure, compare, and evaluate processes of politicaldecentralization, in both space and time, and within and among countries. Because then theachievement of high levels of political power by regions should be accompanied by at leastsome degree of judicial autonomy. The cases of Spain and Italy, however, tell us that differentlevels 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 mea-sure, first, the level of judicial decentralization of countries, and second, the level of judicialpower 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 theaim of (1) achieving a clear language to support systematic comparison between the rele-vant components of what can be understood as “judicial decentralization”, (2) offer a way toempirically evaluate and compare a high number of cases in a single moment in time (cross-sectional), the evolution of particular cases (longitudinal), or both combined, in order to (3)explore the patterns of judicial organization in scenarios of political decentralization.

1Based on Marks et al.’s (2008) Regional Authority Index.

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In sum, the main contribution of this work is related to the empirical approach to thejudicial dimension of regional autonomy thorugh an interdisciplinary approach, the consider-ation 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 variationsin 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 lim-ited role of the organization of Justice in the comparative literature on federalism; second, thedifficulties found to carry out empirical research on models of decentralization including thejudicial dimension; and third, the limited contribution of literature on multilevel governanceon this issue. After that, sections 3 and 4 present the components of the Judicial RegionalAuthority Index, discuss how regional judicial power is measured, and provide a formal def-inition of the composite indicator. Finally, section 5 presents the main results on the fourcases 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 withinone single country. The current dataset contains data on all the components of the JudicialRegional Authority Index (JRAI) for all the sub-federal units in Germany, United Kingdom,Italy, and Spain, between 1950 and 2006.

2 Literature

2.1 Federalism and judicial federalism

The variety of theoretical formulations around federalism is well-known. A main feature ofthese 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 analysisof federal constitutions—i.e., they have usually taken the federal level or state as the unit ofanalysis.

Regarding the first question, essentially these classic formulations (Lijphart 1999, Riker1964) have pointed out that “[t]he basic feature of a federal system is an institutionalized divi-sion of power between a central government and a set of constituent governments—variouslydenominated as states, regions, provinces, Länder, or cantons—in each each level of govern-ment has the power to make final decisions in some policy area but cannot unilaterally modifythe federal structure of the state” (Amoretti 2004).

This basic theoretical formula has the division of powers as its core element. Coherentlywith this definition, different attempts to elaborate on the concept of federalism analyticallyhave tried to establish the mechanisms of the exercise of that power. For instance, in hisgroundbreaking work aimed at measuring intergovernmental relations and presenting an em-pirical account of different models of demcoracy, Lijphart (1999) defines five oft-cited areasof 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 andmost definitions is that federal models host two different kinds of power: (1) the capacity ofthe 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 dichotomywas synthesized by Elazar (1987) as self-rule and shared-rule.

A special aspect some authors have related to the foundation of federal states are territorialproblems. The logical mechanism is simple: federalism is prescribed for the accommodation of

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territorial divisions and to manage ethno-linguistic conflicts (Erk and Anderson 2010), mean-ing that federalism is conceived of as a way to manage conflicts in societies that are dividedthroughout some cleavage that can, ultimately, be drawn upon territorial lines. Although thestudy of federalism as a way to manage territorial divisions has received relevant volumes ofattention among political scientists, even in extreme cases such as South Africa, Nigeria andIrak (de Villiers 2012), the attention payed to a universal mechanism for conflict resolutionat 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 mostanalyses, judicial review is in effect taken into account. This mechanism, though, is vitalto this model of federalism because it serves as a mechanism for dispute resolution betweenfederated states and the federal government (Amoretti 2004). In this sense, tipically theentities with the capacity to control the constitutional validity of legislation of both federaland federated powers are either not strictly judicial in an ordinary sense (e.g., the politicallyappointed Spanish Constitutional Court), o they are, but are also given additional powersregarding this special jurisdiction. Be as it may, usual approaches to this issue focus on theconstitutional reivew but not on the extent to which “jurisdictional organs of member stateshave also a role in the interpretation of the federal constitution” (Arbós 2013), and evenless on more particular aspects of the organization of ordinary jurisdictions such as the firstinstance within the federated states or decentralized regions.

Nevertheless, the structure of the judicial power in federal models, its defining role forfederalism, or even the different levels at which this may be relevant are all questions ofevident scientific interst. Yet, the importance of the judicial dimension of federalism seems tohave only appealed students of the so-called judicial federalism, which is to be found mainlyamong legal theorists and constitutional experts bounded to the analysis of case studies (Jacobet al. 1996, Shapiro 1981, Gerpe and Barceló 2006, Gerpe and Cabellos 2013).

For instance, Arbós (2013) underscores both the existence of the federated states’ ownjudicial system as a defining aspect of federalism, and the absence of regional judicial systemsin 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 whatmakes the Spanish model anything but federal, “because there is no federal contract, thereis no participation of the autonomous entities in the central state, [...] and, among otherreasons, because autonomous communities lack their own judicial power.”

Regarding its methodological nature, though, in the area of judicial federalism we may findstudies comparing common elements and differences in the judicial organization of federal orquasi-federal models (Casañas-Adam 2010, Halberstam 2005, Watts 1999) such as the analysisof the role of judges and the institutional dynamics surrounding the judicial practice, usuallyas case studies, and with special interest on the United States and the European process ofjudicial interaction (Burley and Mattli 1993, Coffin 1980, Dahl 1957, Friedman 2005, Garrettet al. 1998, Halberstam 2005, Levinson 2005, Posner 1993, Segal 2002, Shapiro 1981, Slaughteret al. 1988, Solberg and Lindquist 2006).

However, on one hand, in these studies the relationships between administration of Justiceand judicial power have not received an amount of attention comparable to other issues suchas the role of high or constitutional courts in the dynamics of federalism. On the otherhand, literature on judicial federalism has also favored the global treatment of groups ofpolitical or legal systems (or countries that are “representative” of them) regarding some of

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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 regionallevel.

This leads us to the second main characteristic of the studies of federalism, in which bothlegal and political approaches do present striking similarities. In effect, a common featureof studies of both political and judicial federalism has been the dominance of the federalperspective comapred to the regional level. With the aim to provide clear-cut classificationsof federal political systems, a great deal of the studies on federalism have been prone tofocus the attention on the mechanisms that facilitate the existence and functioning of federalsystems. The elements that Lijphart (1999) proposed, for instance, or even the more abstractconceptualization of the kind of power that is being federated (Elazar 1984, 1987) tend to seefederalism 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) pointout that despite its obvious relevance, the federal standpoint does not exhaust the whole setof constitutional issues in a federal system, “in part because it encourages an understanding offederalism as a top-down or center-periphery arrangement rather than as one based on differingspheres of governmental authority”. Even though, some excpetions can be found to this socommon approach (Biaggini 2004, Tarr 2004). However, even in these cases the persistenttendency among comparative legal scholars to use case studies impedes generalization ofresults 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 literatureon the notion of regional autonomy, especially on the explanatory models of the processesof contemporary political decentralization. In particular, this literature explores how thearticulation of authority in different general purpose jurisdictions affects political participa-tion, accountability, territorial conflicts, corruption, public spending, and democratic stability(Marks et al. 2008).

Usually comparative literature about regional autonomy has focused on comparing po-litical systems through elements such as judicial review, legislatures, executive power, con-stitutional courts, fiscal control (Rodden 2004), high courts of appeal, or even the numberof judicial jurisdictions and the conflicts that stem from it. Moreover, it is also usual forthese measures to be produced with the aim (very successful in some cases) of distinguish-ing between decentralized and centralized systems—thence Lijphart’s (1999) federal-unitarydimension—but not so much at exploring thoroughly the organizational differences betweensub-federal units themselves (Rodden 2004). Threrefore, for instance, it is common to finda particular country classified as having certain level of decentralization, but it is not possi-ble to distinguish, within that country, whether the components of the decentralized system(regions) present relevant differences, not only in their levels of decentralization, but alsoin important institutional and organizational features. Therefore, usually this literature isnot sensitive enough to observable variations in the organization of sub-national governemntswithin decentralized systems.

In contrast with this, though, the project to study and measure regional political autonomywith a large sample of countries and regions by Marks et al. (2008) has delivered the mostcomplete database so far on this issue, and a way to gauge the political power of regions

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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 42countries, and contains measures that are combined to build two different dimensions of theregional authority. On one hand, four indicators summarize the capacity of a region to governand 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, asecond dimension measures the extent to which regions may exert some influence on decisionsmade at the national level (shared-rule), measured through four indicators: regional influencein 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 anal-ysis 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 toplay in them. In general terms, here we find works focused on the redefinition of traditionalunderstandings of the conflictive relationship between center and periphery in the contempo-rary configuration of the State (Brake 1997, Ertman 1997, Poggi 1978, Rokkan and Eisenstadt1973, Spruyt 1994, Tilly 1975). In this vast literature, the process of European integrationhas received a privileged attention (Bartolini 2005, Ferrera 2005), which has led to a newdefinition of the problem of the center-periphery relation (Piattoni 2010).

Most of the original contributions focused on the effects of the ever increasing complexityand 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 differentmodels of supra-national or federal design vis à vis different multilevel governance structuresor dynamics.

In this sense, de Bruyn (2009) states that federalism or even confederation may be per-ceived 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 existenceof general-purpose, non-intersecting jurisdictions (although some policy competences may beshared (de Bruyn 2009)), the organization of jurisdictions in a limited number of levels, andan architecture that covers the whole system. Notice that this model does not entail, how-ever, the existence of a strong center (federal government, European superstate). Therefore, itcould 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 governanceapproaches 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 othersecond level entities (Tomàs 2009) in the process of policy design and implementation, and onthe other on the growing interst in the effects of the existence of overlapping levels of powerin the basic relationships between citizens and the political system (Oliver 2001).

2In contrast with this type of governance, the Type II multilevel governance is featured by the existence oftask-specific jurisdictions, the intersection among jurisdictions, the limitless number of levels, and its designflexibility.

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However, in this literature, as in the previous corpora, the existence of different modelsof multilevel governance in the administration of Justice remains largely unexplored, espe-cially regarding the role of regions in the reconfiguration of the relationships between theadministration 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 injudicial decentralization both among countries and regions. Our basic methodology is basedupon that which Marks et al. (2008) used to design and implement their Regional AuthorityIndex.

At the outset of their empirical approximation to the notion of regional authority, Markset 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 capacityto govern itself (self-rule), but also as its capacity to influence (along with the other territorieswithin 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 autonomyof central governments.

On one hand, Marks et al.’s (2008) notion of self-rule refers to the extent to which a regioncan exercise authority within its jurisdiction, and it “is operationalized as the extent to whicha 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 toinfluence decision-making at the central level, in four key areas: “normal legislation, executivepolicy, taxation, and constitutional reform” (Marks et al. 2008: 115).

We adopt this two-fold approach, too, due to the widely acknowledged validity of thisapproach in the literature, although we adapt the components of each dimension to effectivelymeasure judicial capacity. To do that, we first distinguish between two dimensions of judicialautonomy. On one hand, we want to measure a region’s capacity to have judicial self-ruletaking into account the institutional, decisional, and economic aspects of judicial autonomy.On the other hand, the second dimension of judicial autonomy (judicial shared-rule) intendsto measure the capacity of a region to influence those decisions affecting the organizationand functioning of the upper-level’s Justice administration and the judicial power. Table 1presents the components of each dimension, and the next sections discuss and operationalizethem.

3.1 Judicial self-rule

Institutional autonomy The first component of judicial self-rule captures the extent towhich 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 thatranges from a complete absence of a regional judicial system to a full-fledged administrationof 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

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Table 1: List of the theoretical components of the notion of regional judicial authority.

Regional Judicial Authority

Self-rule

Judicial institutional autonomyJudicial recruitmentJudicial designJudicial economic autonomyCapacity to make ultimate decisions

Shared-ruleJudicial representationJudicial executive controlFiscal control

manage. Note that this is mostly a matter of formality—i.e., we intend to measure the extentto 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 aregion has not its own administration of Justice. The second is reserved for the existence ofa regional AoJ that is only entitled to manage minor issues. The third and fourth categoriescomplete a cumulative logic, the third referring to the existence of a regional AoJ with a fulljurisdiction in either civil or criminal cases, reserving the fourth for a regional AoJ with fulljurisdiction in both areas of law.

Table 2: Operacionalization of the Judicial Autonomy dimension.

Judicial Autonomy0: no Administration of Justice at the regional level1: a small regional Administration of Justice to deal with minor issues2: a regional Administration of Justice to deal with either civil or criminal

issues3: 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 admin-istration of Justice must be accepted to exist, at least formally. For intance, Italy is onecase of null regional judicial decentralization as a constitutional principle. During the con-stitutional process of the Italian Republic after World War II there was a timid attempt ofjudicial decentralization for those regions with “special characteristics”. Thence the Statuteof the Region of Sicily aproved in 1946,3 which contains the provision of the creation of aHigh Court (Alta Corte) (art. 24) with six members appointed equally by the national andregional legislative assemblies. Moreover, the Alta Corte was to have powers on constitutionalreview 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 bysuccessive decisions of the Italian Constitutional Court, thus finishing any attempt of judicialdecentralization in Italy. Therefore, Italian regioni have no judicial system whatsoever andscore zero in this first dimension.

Spain, too, has a judicially centralized system. Any potential judicial decentralization in3Statuto della Regione siciliana, approvato col decreto legislativo 15 maggio 1946, n. 455, transformed into

a Constitutional Law on February 26, 1948, n.2.

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Spain is bounded, on one hand, by a few constitutional principles regarding the organizationof the judicial power (articles 117 and 122 of the Spanish Constitution), which, on the otherhand, have been implemented and interpreted in a strongly unitarian and centralizing way(Díez-Picazo 1991, Porras 2013). These constitutional principles establish a unique and cen-tral 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 com-munities 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 Spanishcomunidades 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 judicialsystems control the first and second instances in civil and criminal matters, while federal-level 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 equallydistributed set of both political and judicial powers to the länder, which in this dimensionobtain 3 points.

In contrast with the German case, the United Kingdom constitutes a highly asymmetricalcase. In the last 15 years, the UK has carried out thorough constitutional reforms (e.g., Con-stitutional Reform Act 2005) that have brought a significant level of structural institutionalupdating: 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), indepen-dence of the Bank of England, or the election of the Mayor of London and other cities withina great reform of local government (Greater London Authority Act 1999; Local GovernmentAct 2000).

These reforms, though, have not only had a deep effect on the political and territorialorganization of the UK, but they also had the aim of “the institutional separation of theexecutive and judicial branches” (Masterman 2011)4 and, therefore, they have deeply affectedthe 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 Irelandand Scotland) present their own judicial system, while England and Wales share one singlesystem. Moreover, judicial autonomy in each territory has not been achieved at the samemoment. Our notion of judicial autonomy, then, is actually only applicable to Scotland andNorthern Ireland in the period that our data cover, insofar in these territories the specific lawof the land (Scottish Law and Northern Ireland Law, respectively) prevails.

The judicial autonomy applies to both civil and criminal jurisdictions (with some excep-tions such as immigration, labor law, and issues related to the military and terrorism). In ourdata, then, Scotland and Northern Ireland obtain 3 points while Wales obtains 0 points.

4See also Department for Constitutional Affairs, A Supreme Court for the United Kingdom (CP 11/03, July2003); Department for Constitutional Affairs, Reforming the Office of Lord Chancellor (CP 13/03, September2003).

5For instance, on the one hand, the reform has stripped all the judicial power from the Chamber of Lordsto create a new Supreme Court. On the other, the constitutional reform also makes the appointment of judgesmore independent (Department for Constitutional Affairs, A New Way of Appointing Judges (CP 10/03, July2003).) through the Judicial Appointments Comission (Constitutional Reform Act 2005, ss. 61-2.)

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Recruitment While the first dimension of judicial self rule captures a formal feature ofthe capacity of regions to have their own judicial system, the second dimension of judicialautonomy tackles a more substantive matter: the extent to which regions have any role inthe recruitment of the personnel that works in the administration of Justice within theirboundaries. This dimension is conceived, again, as a continuous measure that ranges fromthe absolute lack of participation of regions in the recruitment of Justice personnel, to thefull regional recruitment for the adminsitration of Justice.

Table 3: Operationalization of the Judicial Recruitment dimension

Judicial recruitment0: the region does not have any role in recruiting the staff for the adminsi-

tration of Justice (AoJ) or the judicial branch1: the region recruits only administrative staff for AoJ2: the region recruits administrative staff and lat least one group of spe-

cialized staff (forensic doctors, clercks of the court, experts)3: the region complies with all the above and also recruits prosecutors4: 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 therecruitment of any personnel, as in the case of Italian regions. Once regions have some role injudicial recruitment, the gradual importance of their role is a function of the type of personnelthe region is entitled to recruit. For instance, hypothetically we consider that the recruitmentof administrative staff gives less power to a region than its capacity to recruit the clercks ofthe court or forensic doctors. In turn, a region that recruits clercks has less judicial capacitythan one that can recruit prosecutors or even judges.6 The basic logic here is that regionswith capacity to recruit higher-level decision-makers (e.g., judges and prosecutors) are moreable to give some particular form to to judicial policy. In our data, this is the case of theGerman Länder. The German constitutional norm on courts (CCA)7 does not establish aunique, 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. Forinstance, in recruiting prosecutors, German Länder have the authority to establish statutorymechanisms to appoint the groups of civil servants and other personnel who are to serve inthe 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 temporallevel. To begin with, the Spanish Constitution establishes the existence of a unique body ofjudges, which in principle cuts off any possibility for regions of even influence decision-makingin this subject. But at lower levels of decision-making, the advancements made by regionssuch as Catalonia and successive judgements made by the Spanish Constitutional Court (e.g.,

6We 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, anindicator would be whether the power to manage such elections lies in federal- or state-level hands.

7Die 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 theversion published on 9 May 1975 (Federal Law Gazette [Bundesgesetzblatt] I p. 1077), last amended by Article4 of the Act of 7 December 2011 (Federal Law Gazette I p. 2582).

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SSTC 56/1990 and 62/1990), have progressively allowed certain regions to recruit or haveinfluence in the recruitment of administrative staff of the administration of Justice withintheir territory. However, historically not all regions have adopted these capacities, nor thecapacity 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, whileAndalusia scores 0 until 1995, and then 1 from that year until 2006. Other regions such asCantabria 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 0and Northern Ireland scoring 1 for their whole periods of existence as regions, and Scotlandscoring the maximum (4) from 1950 until 2006.

Judicial design The next component involves the ability to shape the map of judicialdistricts 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 thefirst judicial instance within a region and the boundaries of the region itself. Second, whetherregions can decide on reshaping the map of judicial districts within their boundaries. Thenotion is incremental, and so is the indicator. There can be a mismatch between judicialdistricts 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 asin Scotland, Wales and Northern Ireland. There can be perfect boundary matching and thecapacity of regional influence in redistricting together with an upper political instance, suchas 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 ownjudicial districts, as in the German Länder. Each of these stages score 0.5.

Table 4: Opertionalization of the Judicial Design component.

Capacity of judicial design0.5 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 responsibilityof a region to provide for resources to courts within its boundaries. Again, we envisage acumulative process where, on one end, a region does not provide any resource to courts, andon the other extreme, regions that provide all material resources to the courts, and pay thesalaries of all personnel, including judges. Table 5 outlines six different variations of theeconomic 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 theirterritory. A first step in resource involvement is made by regions that provide just materialresources (offices, computers, paper) but that have no involvement in paying salaries for any

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judicial staff, administrative or not. Again, in Spanish regions we find both cross-sectional andtemporal 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 resourcesand even pay the salaries for judicial administrative staff (e.g., Catalonia). In any case, thedistribution of such capacities in Spain in asymetrical. At the other end of the scale are theGerman Länder, with full economic capacity, and Scotland, which scored 0 from 1950 until1999, and acquied full capacity (scoring 5) from the year 2000 on.

Table 5: Operationalization of the values of the Economic Judicial Autonomy component.

Economic Judicial Autonomy0: the region does not provide any resource to the administration of Justice1: the region provides material resources2: the region provides material resources and pays salaries of administrative

staff3: the region provides material resources and pays salaries of adminsitrative

staff + other experts (medical examiners, clerks, other technical experts)4: the region provides all the above + pays salary of prosecutors5: the region provides all the above + pays salary of judges

Ultimate decision Finally, the last component of our notion of judicial self-rule is measuredby the extent to which ordinary court cases dealt with (started) within the boundaries of aregion 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 dohave courts of appeal within their boundaries with the capacity of making final decisions onmost civil and criminal cases.8

This is a complex matter. In this case variation is expected on both the volume of issues onwhich regional courts of appeal can state final judgments, and on the nature of the cases thatcan be decided upon, civil or criminal. Regarding the first issue, in any case, the existence ofa court of appeal with final decision capacity within the boundaries of a region does not entailthat 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 tothe very existence of the Spanish regions (called autonomous communities), but in no casedoes 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 broadlyclassify all possible matters as either civil or criminal, understanding that having the capacityto 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 finaldecisions in general civil matters and in those civil procedures that affect the regions’ particularcivil law,9 and therefore these courts present the actual capacity to establish unified criteria

8With usual exceptions on constitutional issues or fundamental rights.9Regions such as Catalonia and Comunitat Valenciana have particular civil legal provisions affecting real

estate or marriage procedures, among others.

12

for legal interpretation in such matters (Gimeno Sendra 2013). These courts, however, haveno 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 followa full federal model. In fact, in both criminal and civil cases, the last instance of decision inGermany is the Federal Court of Appeal (arts. 123 ss. CCA), and the state-level courts canonly issue final decisions for some particular cases of civil matters, scoring 1 in the dimensionof judicial decision capacity.

This way, Table 6 establishes a four-category scheme where regions where not a singlecourt can issue a final decision on any matter score 0, and regions where courts of appeal canissue final judgments on bot civil and criminal matters score 3.10

Table 6: Operationalization of the values of the Judicial Decision component.

Capacity of Final judicial Decision0: there is no final court of appeal in the region1: there is final appeal for minor civil and/or criminal issues (low quantities,

minor offence, etc.)2: there is final appeal for most civil or criminal cases3: there is final appeal for most civil and criminal cases (except the usual

constitutional and fundamental rights issues)

3.2 Judicial shared-rule

Judicial autonomy and power in multi-level or composite political systems can also be exer-cized through the influence of the decentralized units on decisions affecting the organizationand functioning of the administration of Justice at a federal level. In particular, this influencecan be exerted, first, through the regional representation or participation in the decisionsconcerning the composition of upper-level jurisdictional bodies such as Supreme or Constitu-tional courts. Second, judicial shared rule can also take the form of the regional participationor 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 throughthe regional representation in federal-level High courts. As Table 7 shows, representation ismeasured here as a 4-level variable, where regions can score 0 when they have no influencewhatsoever in the composition of High courts. This is the case of the Spanish and Italianregions. In Spain, the Supreme Court is the apex of the whole judicial system (except forconstitutional matters). All the members of the Supreme Court are royal appointments priorproposal by the governing body of the Spanish judges (General Council of the Judiciary). Tothe extent that Spanish regions have no role to play in the governing body of judges, neitherthey can have any influence in appointing any member of the Supreme Court. Regardingthe Constitutional Court, the appointment of its 12 members is determined by constitutionalmandate: four appointed by the lower legislative chamber (Congreso de los Diputados), four

10The 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 twoproposed by the General Council of the Judiciary.

Given that in Spain the electoral district for the elections to both chambers is the provinceand not the region, any regional influence on the appointment of the eight members of theConstitutional Court through the legislatures is very unlikely. It is true, though, that areduced number of members of the Spanish Senate are directly elected by the regional leg-islatures. However, due to (1) the fact that only 57 out of the 264 (21.5 percent) senatorsare thus elected, and (2) the fact that the election of members of the Constitutional Courtby senators requires a qualified 2/5 majority, the actual capacity of regions to influence theseappointments would be a rarity, and extremely indirect in any case, and therefore Spanishregions, with no exception, score 0 in this matter.

Table 7: Operationalization of the Judicial Representation component.

Judicial Representation0: regions do not interevene at all in the appointment of member of High

Courts1: regions do not intervene in the appointmet, but regional origin of High

Court judges is taken into account in their appointment2: regions intervene in the appointment of at least some members of the

High Court (mixed appointment), or appointments are decided togetherwith central decisional bodies

3: regions determine the composition of High Courts

In contrast, the Basic Law for the Federal Republic of Germany (art. 95.2) determinesthat the judges of all courts pertaining to the Federal Court “shall be chosen jointly bythe competent Federal Minister and a committee for the selection of judges consisting ofthe 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 thecapacity of a region to participate in the decision-making processes that take place in thegoverning bodies of the judicial power at a federal level. These governing bodies may havemany duties, ranging from the organization of judicial selection at different levels to decideupon any disciplinary measures to be taken against any member of the judiciary. Regionalpower here is measured through the level of influence regions have in appointing the membersof such governing bodies, if they exist, or in case there is no separate body for governingthe judiciary, in whose hands remains the capacity to enforce disciplinary measures againstjudges.

Table 8 presents the categories for this variable. From the data, Spanish regions score 0in this variable, too, while German Länder score 3. In fact, Germany does not have a uniquegoverning body for the judiciary, but there is a service court in each Länder, composed byjudges, that is in full charge of deciding and enforcing any disciplinary measures together withpromotions, 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 Courtof 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.

Executive Control0: regions do not intervene in the appointment of members of the governing

body of the judiciary (or don’t have any disciplinary capacity)1: regions do not intervene in the appointment of members of teh governing

body, but regional origin of appointees is taken into account in theirappointment

2: regions participate in the appointment of at least some members of thegoverning body of the judiciary (mixed appointment)

3: regions determine the composition of the members of the governing bodyof the judiciary, or have full competence to discipline judges

Supreme Court of the United Kingdom). In 2007, moreover, the Judicial Council for Scotlandwas created, composed by judges of all categories from the Scottish judicial system, and withaim to “provide information and advice to the Lord President of the Court of Session and thejudiciary of Scotland on matters relevant to the administration of justice in Scotland”.11 InNorthern Ireland, the head of the judiciary is the lord Chief Justice, as the president of theCourts of Northern Ireland. As in judicial recruitment, the election of the lord Chief Justicefor Northern Ireland has been reserved to the Queen (officially) with prior recommendationfrom 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 akey element that several authors have usually considered separately from the fiscal authorityof regions. In fact, Marks et al. (2008) created a variable exclusively focused on measuring thisability 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 mea-sure 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) thereis little use in trying to extract the influence of regions in this matter regarding exclusivelyregarding judicial matters, the creation of another variable to measure just the same wouldbe highly redundant. We therefore use that of Marks et al. (2008).

Constitutional courts Almost all studies on regional political power taken into accountthe regional intervention in constitutional reform or in Constitutional courts (if any). Thisis a very special type of authority that presents problems when trying to measure judicialauthority at the regional level. We find cases in which there is one single Supreme courtwith power to both serve as the ultimate court of appeal, and decide upon constitutionalmatters. Sometimes, as in Spain or Italy, these functions are carried out by two differentcourts. Moreover, sometimes (e.g., Spain), although the Constitutional Court is referred toas 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.

11http://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).

Fiscal Control0: regional governments or their representatives in the legislature are not

consulted over the distribution of tax revenues1: regional governments or their representatives in the legislature negotiate

over the distribution of tax revenues, but do not have a veto2: regions participate in the appointment of at least some members of the

governing body of the judiciary (mixed appointment)3: 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 notconvenient for our indicator for two main reasons. First, in cases where constitutional mattersand highest appeal are carried out by the same court, this variable would be perfectly collinearwith 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 partof the judicial system (e.g. Spain), it would add nothing to measure the judicial capacity ofregions.

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 judicialcapacity in one single normalized, thus comparable value. Therefore, it may be calculatedfrom 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∑q=1

Iqr (1)

16

where q represents the normalized values of each individual component I of regional judi-cial 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 onthe 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 capacityfor governing their own judicial matters—i.e., the self-rule dimension of judicial authoritythrough 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∑q=1

Aqr (2)

where q represents the normalized values of each individual component S of judicial self-rule 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 canexert some degree of influence in the organization and functioninig of the judicial branch andthe administration of Justice at the upper political level (federal, central or general)—i.e., theshared-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∑q=1

Shqr (3)

where q represents the normalized values of each individual component Sh of judiicialshared-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-yearobservations for each of the 8 components that constitute the Judicial Regional Authority In-dex (JRA), totalling around 25,000 region-year-component observations. This section presentsthe main results of the Judicial Regional Authority Index (JRAI), and compares the resultsobtained for the regions and years in the database. I will first comment on the evolution ofthe 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 theRegional 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 itscomponents. Note that only the self-rule and shared-rule dimensions, along with the JRAIindex, are normalized to have values between 0 and 1, while the rest have different valueranges. Figure 1, on the other hand, presents the average value of the JRAI index for eachyear 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 N Mean St. Dev. Min MaxJudicial autonomy 874 0.587 1.191 0 3Recruitment capacity 874 0.695 1.344 0 4Judicial design 874 0.219 0.399 0 1.5Judicial Economic autonomy 874 0.474 1.345 0 5Ultimate decision 874 1.348 0.884 0 2Representation 874 0.144 0.518 0 2Executive control 874 0.391 1.011 0 3Fiscal control 874 0.784 0.540 0 2Judicial self-rule 874 0.201 0.237 0 0.879Judicial shared-rule 874 0.147 0.171 0 0.778JRAI 874 0.181 0.206 0 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

12Except Spain, where autonomous communities are not given legal status until 1978.13Country scores are calculated through the average of the scores of the regions within that country.14Complete country scores in the index and its subdimensions can be seen in Appendix A.

18

regions experience multiple changes in time (UK and Spain), and those whose regions presenta more stable, almost flat evolution in terms of judicial power (Germany and Italy). Onthe other hand, difference is also perceived in the level of judicial authority itself, the fourcountries representing four distinct cases.

1950 1960 1970 1980 1990 2000

0.0

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AI

GER

UK

IT

ES

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 ofchange in time, while at the other end we find Germany, with the higher level of judicialdecentralization in the database (0.84). In between, Spanish regions show lower levels ofjudicial power compared to the UK and Germany, just above Italy. However, Spain presentsa more gradual pattern of variation in time. With an average value of 0.16 in 2006, Spain hasdoubled 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 variationin time. Moreover, it is the only case with dramatic decreases in the average value of JRAIduring the period under study (with the slight exception of Italy). This negative change inthe index in the average Brisith regions’ judicial capacity, though, is due to the inclusion ofWales 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 duringthis period.

But, are changes in regional judicial capacity due to changes in the judicial self rule orevolution is mostly explained through an increasing capacity of regions to influence judicialmatters at the federal level? Figure 2 shows two panels. The left panel shows the evolutionof the regional judicial self rule in each country, while the right panel delivers the sameinformation for the judicial shared rule. On the left side, the data show that neither GermanLänder nor Italian regions have experienced any changes in their capacity to govern their own

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1950 1960 1970 1980 1990 2000

0.0

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Judicial Self−rule

Mea

n IA

J

GER

UK

IT

ES

(a) Judicial self rule by countries, 1950-2006.

1950 1960 1970 1980 1990 2000

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Judicial Shared−rule

Mea

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ITES

(b) Judicial shared rule by countries, 1950-2006.

Figure 2: Evolution of the values of the JRAI subdimensions. The value corresponding to eachcountry 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 generalpattern, though, it can be observed that countries tend to present higher levels of regionaljudicial 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 mayobserve, first, that as noted above the incorporation of Wales as a region in 1963 entails adrecrease of the average level of judicial self rule that doesn’t reach prior levels until 2000 andbeyond. In contrast, the right panel shows that the capacity of British regions to influencejudicial matters at the general level (shared rule) is not as senstitive to the incorporation ofWales as it was in the previous indicator, but that it is extremely sensitive to the consitutionalreforms of 2005, that raise the average level of judicial self rule to 0.46, a higher value thanthe judicial self rule.

Spain, on the other hand, shows this difference in a clearer way. In fact, the separationof both dimensions of the judicial authority index uncovers the fact that the few reformscarried out to give Spanish regions some judicial power have been exclusively focused on theirability to have some degree of power in managing the administration of Justice within theirown boundaries, but not in their participation in deciding upon judicial affairs at the centrallevel.15 Therefore, all the evolution in regional judicial authority in Spain has taken placein the judicial self rule dimension, while in judicial shared rule Spain and Italy share verymodest development.

15The bump observed in Spain in the early 1980s is due to the incorporation of new regions to the generallevel of fiscal control. From then on, the level is steady.

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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 bothindicators, and colors distinguish each country.

5.2 Judicial and political decentralization

Is there any relationship between processes of political and judicial decentralization? Shouldboth processes take place in parallel, we would expect to find correspondence between theJRAI and the RAI indicators. Figure 3 shows this relationship where countries are distin-guished by color. Each point represents a country for each year between 1950 and 2006 (exceptSpain, that begins in 1978). Given that, as seen above, change in judicial decentralizationkeeps 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 lev-els of decentralization in the case of Germany, the figure allows for the observation of twodifferent phenomena.

The first one is that during the period under study, the change within countries is ex-perienced horizontally, that is, countries have evolved mainly in their processes of politicaldecentralization (the x axis in the figure), but movements in the vertical axis (judicial decen-tralization) has been rather modest. The second phenomenon is that the only abrupt changein judicial decentralization is found in the United Kingdom (blue dots), but when this changetakes place the evolution is exclusively vertical, and not at the same time that regions areevolving politically.

This preliminary graphical evidence seems to indicate, therefore, that despite there mightbe some relationship between political and judicial processes of decentralization (e.g., Ger-many), this relationship is not evident in most cases. Nevertheless, at the country level thisrelationship is only of relative interest. Exploring whether this relationship exists at the re-gional 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 eachyear in both indicators, and colors distinguish the countries to which each region belongs. Noise hasbeen 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 particularyear. In order to avoid the visual effect of overlapping points, some noise has been added tothe data (R Core Team 2013).

The first thing that may be observed in the figure is that in general terms, regions ineach country tend to “move” in one single region of the plot, with the exception of the UnitedKingdom. This may be relevant to study comparative decentralization processes, because thepatterns followed by regions reflect the interaction between the structure of preferences of theactors implied in the process, on one hand, and the institutional limits to which these processesare 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 relationshipbetween 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 regionshave 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 theother, 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, theSpanish 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 levelsof 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 decentralizationprocesses within the country, which points to higher levels of flexibility (compared to theformer model) that allow for the coexistence of separate models under one single politicalsystem: on one hand, Scotland presents high levels of autonomy in both dimensions (politicaland judicial, upper right part of the graphic, in blue); on the other, Northern Ireland andWales, in which we find the combination of high levels of judicial decentralization with lowpolitical power (Northern Ireland until very recently), or some advances in political autonomywithout any development of judicial decentralization (Wales).

Finally, the third model is represented by the federal case of Germany, and it would pointto a model, on one hand, with high levels of both political and judicial decentralization, andon the other with low levels of flexibility (high uniformity) in so far all regions share thesame levels of development. In any case, though, further data should be collected to test theexistence of such models.

However, if we turn one more time to Figure 4 we may observe that, even when weanalyze the regional cases, the increasing movements along the political dimension of regionalauthority (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) thatindicates a marked non-linear pattern in the data.

In fact, the Spanish and British cases (green and blue, respectively) are two clear examplesof non-linear relationship between both variables: the moves along both axes are producedeither horizontally or vertically, but it is extremely rare to observe a region that experiencesgains in political and judicial autonomy simultaneously. Should that be the case, it wouldindicate that both types of decentralization are related, but our (limited) data seem to indicatethat although there are situations in which both types of decentralization coincide (Germanyand at some point Scotland), it is not only the case that the relationship between one type ofdecentralization and the other seems to be weak, but the evolution of the regions covered bythe dataset has taken place mainly in the political dimension of autonomy, not in the judicialone. In Figure 5 this fact is evident for the United Kingdom. For instance, in the upper leftpart of the plot, the upper blue dots (that represent Scotland) could achieve relatively highlevels of judicial autonomy without having noteworthy levels of political power. In the nextsection we briefly explore the use of our data to account for variations in regional judicialcapacity within one single political system.

6 Political and judicial decentralization in Spain: an empiricalexploration

In the last section we have observed an interesting phenomenon: in the processes of politicaland judicial decentralization, regions tend to “move” within a bounded space. The boundariesof this space are a function, on one hand, of changes in the structure and distribution ofpreferences among key decision-makers (citizens and elites) and, on the other, it is affectedby the institutional paths and designs wihtin which this interaction takes place. It is onlyfair to assume these two limits are not independent, given that the institutional structure ofdemocratic regimes can be conceived of as an equilibrium in a context of conflictive preferer-

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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 thenon-linear relationship between the variables. Points represent the position of each region in each yearin both indicators, and colors distinguish the countries to which each region belongs. Noise has beenadded 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 alsothe mechanisms that facilitate (or impede) reform—i.e., institutional rigidity towards theirfuture reform (Greif and Laitin 2004). In this sense, our data could help exploring models ofinstitutional path dependence (North 1990).

Figure 6 shows the evolution of our indicator of judicial decentralization (JRAI) for allthe Spanish autonomous communities, between 1978 and 2006. In all these years, judicialdecentralization in Spain has been modest in two ways. First, the maximum level of judicialdecentralization achieved by a Spanish region has been of only 0.25. Second, only a few au-tonomous communities have reached this rather modest threshold. In fact, only four Spanishregions have reached this relative maximum level, and Figure 6 uncovers the existence of threedistinct 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 re-gions. At this time, the low level of judicial development is widely shared by all regions. From1986 until the mid 1990s, though, the two most politically advanced autonomous communities(Basque Country and Catalonia) start acquiring further competences in judicial matters: theacknowledgement of a limited participation in the design of judicial districts, some respons-abilities in providing material resources to the administration of Justice, and the recruitment

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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 dataso that overlapping dots can be distinguished.

of some adminsitrative staff. Most of the other regions, though, remained in the lower lev-els of judicial power. Finally, from 1996 a new period begins when some other autonomouscommunities 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 decentraliza-tion resembles the different paces followed by Spanish regions in strengthening their politicalautonomy, summarized by the fact that regional access to autonomy was regulated by differentarticles in the newly approved constitution, and therefore a few regions (Catalonia, BasqueCountry, Galicia and Andalusia, regulated by art. 151 CE16) were given a wider bundle ofpowers than the rest (art. 143 and 144 CE) from the outset. Figure 7 shows how regionalautonomy in Spain has been distributed among regions, with three clear moments of regionalreform that have progressively brought the regional system to a more homogeneous distri-bution in levels of political autonomy. But, are those regions that enjoyed a wider politicalautonomy from the outset those who developed higher levels of judicial capacity in the fol-lowing years? Or, in other words, are increaes in judicial autonomy the result of an increasein regional political power?

Figure 8 shows the evolution of the JRAI index among Spanish regions taking into ac-count their level of initial access to political autonomy. Red and green dots indicate regionswith lower levels of political autonomy at the moment of their creation (ordinary regions),

16CE 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 positionof each region for each year. The loess curve reflects the existence of three different stages of increasein political autonomy of regions. Noise has been added to the data so that overlapping dots can beperceived.

while black dots show the evolution of the four initially more developed regions. Data showthat none of the ordinary regions achieved any significant level of judicial capacity until themid 1990s, when most of them reformed their statutes of autonomy (Aja 2003), followed bythe acquisition of further political powers. From that moment on, however, most of themremained at minimum levels of judicial capacity, with very few exceptions, although theirlevels 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 judicialmatters at once, Canary Islands, Valencian Community, Madrid and Asturias experienced nochanges 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 thosefour cases and plots their evolution in judicial capacity. The data show how only the BasqueCountry and Catalonia opt for higher levels of judicial capacity at very early stages, whileAndalusia chose to remain at lower levels, and Galicia performs a dramatic shift from theminimum to the maximum in one single year.

Therefore, the question remains: to what extent there is a systematic relationship betweenthe levels of political and judicial autonomy in the process of decentralization in Spain? Shouldthere be a strong relationship between both processes, we would observe that those regions

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Figure 8: Evolution of judicial autonomy (JRAI) in all Spanish autonomous communities accordingto their initial level of access to autonomy (1979-2006). Dots represent each region each year, levels ofaccess to autonomy are distinguished by color, where black indicates the most advanced level. Noisehas been added so that overlapping dots can be distinguished.

with higher levels of political power tend to achieve also higher levels of judicial capacity, whilethose 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 ofpolitical autonomy. However, firm conclusions cannot be drawn.

In order to further test the relationship between both variables, we regress the level ofjudicial capacity (JRAI) of Spanish regions on their level of political autonomy (RAI). In orderto address the needs derived from the panel structure of our data (we have several observationsfor each region, one per year), we take the following steps. First, we fit a model in which wejust regress the Judicial Regional Authority Index (JRAI) on the level of political autonomy(RAI), controlling only for autocorrelation in JRAI (including the lagged dependent variableas a predictor). Second, we fit the same model but including a control for the initial level ofaccess to autonomy in 1978, i.e., the regional level of autonomy at the outset. Third, we fitthe model including year fixed effects, to try to capture the effect of particular years in whichgeneral regional reforms took place. Finally, a last model includes also regional fixed effectsin order to capture the individual effect of some regions (thus dropping constitutional statusform the model).

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Figure 9: Evolution of the judicial autonomy (JRA) among the more politically powerful Spanishregions, 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 positiveeffect 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 accessof the regions to autonomy. Here the reference category is the extraordinary constitutionalstatus of Catalonia, Basque Country, Galicia and Andalusia. We further distinguish betweentwo ordinary levels of access: the first one refers to most autonomous communities createdduring the late 1970s and early 1980s, while the second level stands for the two Spanishenclaves in the north of Africa (Ceuta and Melilla), which were given status of region in themid 1990s. The model, therefore, shows that having an ordinary access to autonomy (wetherpast 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 effectsof regions and years the effect of political autonomy on political regional power disappears,suggesting that the agendas driving regional political development and judicial capacity maybe separated, contrary to what our hypothesis expected.

17Both indicators of autonomy (JRAI and RAI) are scaled to range [0,1].

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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-linearrelationship. 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. Itsmain contribution is two fold. On one hand, it provides an operationalization of the legalstructure 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 indicatorof judicial autonomy that (1) takes the region as the unit of analysis and (2) allows for theelaboration and testing of analytical models to be tested against data.

The first part of the paper has emphasized that the literature on federalism, political orjudicial, and on models of decentralization has tended (1) to disciplinary isolation, (2) tofocus on a few number of cases without generalizable power, and (3) to emphasize the roleof high courts as referees in conflict management and resolution between federal governmentsand the federal states, leaving aside differences in models of territorial structuration of thepolitical power. In this sense, the inclusion of the judicial dimension related to the organi-zation 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 maincontributions to the literature on federalism.

The second part of the paper has described and presented the steps carried out to buildthe Judicial Regional Authority Index (JRAI), with the aim of adding a judicial dimensionto 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 politicalpower (RAI), for all Spanish regions, 1979-2006.

Dependent variable:

Judicial Regional Authority Index (JRAI)

(1) (2) (3) (4)

Lagged JRAI 0.041∗∗∗ 0.040∗∗∗ 0.040∗∗∗ 0.037∗∗∗

(0.001) (0.001) (0.001) (0.001)Political autonomy (RAI) 0.002∗∗ 0.002∗∗ 0.001 −0.002

(0.001) (0.001) (0.001) (0.002)Level of access: −0.005∗∗∗ −0.006∗∗∗

ordinary (0.002) (0.002)Level of access: −0.005∗∗ −0.006∗∗

Ceuta & Melilla (0.002) (0.002)Year fixed effects(not shown)Year and region fixedeffects (not shown)Constant 0.133∗∗∗ 0.137∗∗∗ 0.136∗∗∗ 0.128∗∗∗

(0.001) (0.001) (0.008) (0.009)

Observations 470 470 470 470R2 0.926 0.928 0.934 0.937Residual Std. Error 0.012 (df = 467) 0.012 (df = 465) 0.011 (df = 438) 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 usedand influential Regional Authority Index. This provides the JRAI with a stabble, provenmethodological 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 theJRAI allows for the identification of different models of judicial decentralization. Secondly,whether the indicator of judicial decentralization can help further understanding particularprocesses of political an judicial decentralization.

First, observing the cases for which whe have data, the indicator proves sensitive to thevariations between countries, thus complying with one of the basic objective of such tools. Inparticular, data show four different models in terms of judicial development in both temporaland substantive terms. On one hand, data single out countries whose regions have achieveddistinct levels of judicial autonomy, and countries whose regions, regardless of their levels ofautonomy, experience very few changes during the period under study. Secondly, regardingthe value of the level of judicial autonomy itself, the indicator points to the existence of fourdifferent scenarios.

Actually, the data show that when change in autonomy has taken place, it has not taken ahomogeneous pattern either in judicial self rule or shared rule. A clear example was deliveredby 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 takesplace eminently in the political dimension, and second, the only abrupt change in judicialdecentralization takes place in the United Kingdom, but when it occurs it is exclusivelyjudicial, and not political.

The preliminary evidence, therefore, suggests that even though some relationship mayexist 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 andjudicial decentralization. The first one is featured by Italian regions and Spanish autonomouscommunities, showing a uniform evolution (very few differences between regions) and mostlypolitical decentralization. The second model is the opposite, featured by the regions in theUK: 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, allowingthe coexistence of regions with large differences in both dimensions. And finally, a third modelis 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 judicialautonomy in Spain, finally, suggests that these data can provide a solid basis to empiricallytest the complex dynamics of political devolution and the extent to which agendas for politicaland judicial decentralization follow distinct paths.

Despite the clear limits of the data, the fact that the current database is so sensitive asto suggest these differences emphasizes the need to further explore the complex relationshipsbetween 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 agreater number of regions and uncover unexplored patterns of multilevel politics.

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A The JRAI index and its components

Table 12: Values of the JRAI index and its components for the cases in our database. Values areaverages of the regions within each country.

Italy Germany United Kingdom Spainyear JRAI self rule shared rule JRAI self rule shared rule JRAI self rule shared rule JRAI self rule shared rule1950 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171951 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171952 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171953 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171954 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171955 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171956 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171957 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171958 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171959 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171960 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171961 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171962 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171963 0.04 0.00 0.11 0.76 0.88 0.56 0.33 0.42 0.171964 0.04 0.00 0.11 0.76 0.88 0.56 0.22 0.28 0.111965 0.04 0.00 0.11 0.76 0.88 0.56 0.22 0.28 0.111966 0.04 0.00 0.11 0.84 0.88 0.78 0.22 0.28 0.111967 0.04 0.00 0.11 0.84 0.88 0.78 0.22 0.28 0.111968 0.04 0.00 0.11 0.84 0.88 0.78 0.22 0.28 0.111969 0.04 0.00 0.11 0.84 0.88 0.78 0.22 0.28 0.111970 0.04 0.00 0.11 0.84 0.88 0.78 0.22 0.28 0.111971 0.04 0.00 0.11 0.84 0.88 0.78 0.22 0.28 0.111972 0.03 0.00 0.07 0.84 0.88 0.78 0.22 0.28 0.111973 0.03 0.00 0.07 0.84 0.88 0.78 0.22 0.28 0.111974 0.03 0.00 0.07 0.84 0.88 0.78 0.22 0.28 0.111975 0.03 0.00 0.07 0.84 0.88 0.78 0.22 0.28 0.111976 0.03 0.00 0.07 0.84 0.88 0.78 0.22 0.28 0.111977 0.03 0.00 0.07 0.84 0.88 0.78 0.22 0.28 0.111978 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.08 0.12 0.001979 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.10 0.12 0.061980 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.10 0.12 0.061981 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.11 0.12 0.081982 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.11 0.12 0.101983 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.11 0.12 0.101984 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.11 0.12 0.101985 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.11 0.12 0.101986 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.12 0.12 0.101987 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.12 0.12 0.101988 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.12 0.12 0.101989 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.12 0.13 0.101990 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.12 0.13 0.101991 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.12 0.14 0.101992 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.12 0.14 0.101993 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.12 0.14 0.101994 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.12 0.14 0.101995 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.13 0.14 0.111996 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.14 0.16 0.111997 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.15 0.17 0.111998 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.15 0.17 0.111999 0.03 0.00 0.07 0.84 0.88 0.78 0.23 0.30 0.11 0.15 0.18 0.112000 0.03 0.00 0.07 0.84 0.88 0.78 0.29 0.40 0.11 0.15 0.18 0.112001 0.06 0.00 0.15 0.84 0.88 0.78 0.29 0.40 0.11 0.15 0.18 0.112002 0.06 0.00 0.15 0.84 0.88 0.78 0.29 0.40 0.11 0.15 0.18 0.112003 0.06 0.00 0.15 0.84 0.88 0.78 0.29 0.40 0.11 0.16 0.19 0.112004 0.06 0.00 0.15 0.84 0.88 0.78 0.29 0.40 0.11 0.16 0.19 0.112005 0.06 0.00 0.15 0.84 0.88 0.78 0.42 0.46 0.33 0.16 0.19 0.112006 0.06 0.00 0.15 0.84 0.88 0.78 0.42 0.46 0.33 0.16 0.19 0.11

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