The rule of law and judicial independence are a project yet to be achieved in Mozambique. The different attempts made so far to reform the legal system, mainly after the change in political and strategic direction brought about by the Constitution of 1990, were always short-sighted and conjunctural in nature, under domestic and foreign pressure that was not always clear or well-intentioned. Real structural reforms need to be made for the judiciary to be able to affirm itself as a real power and, in this way, favour balanced growth of companies, increased productivity, investment and jobs and, at the same time, the defence of the rights and legitimate interests of individuals and groups with fewer economic resources.

In the Middle East and North Africa region, laws organising the judiciary and bilateral agreements on judicial cooperation expressly permit the use of foreign judges on domestic courts. Judicial ‘secondments’ of this type allow host courts to deal with increasing caseloads expeditiously, while providing shadow-training for domestic judges in the long term. This chapter outlines the practice of sharing judges in the region and describes how foreign judges serve on domestic courts in Bahrain, Kuwait, Qatar and the United Arab Emirates, in law and practice. Using the lens of political economy, the analysis highlights two trends in the region. The first is the recruitment of foreign judges to fill skills and knowledge-based gaps among domestic judiciaries. The second is the high degree of executive control over the movement of judges, in both sending and receiving states, with implications for the separation of powers, judicial independence and executive accountability.

This chapter examines the appointment of foreign judges through the lens of political contestation and potential judicial interference in Botswana, Lesotho and Eswatini. It first interrogates why the appointment of foreign judges continued after domestic pipelines of judges had increased. Adopting a regime-based approach, the chapter first argues that the continued appointment of foreign judges beyond functional necessity is a form of strategic policy drift, because it does not require a new policy and it may be couched in positive or populist terms. Second, this chapter examines the timing of the pivot away from the appointment of foreign judges in Botswana and Eswatini. It shows that judicial leadership combined with local demand plays an important role in the timing of change, but that the localisation of appointments to apex courts of appeal, without reform of the appointment process itself, provides democratic window dressing for hegemonic regimes. The rhetoric around citizen-based localisation (Botswana) or racially-based Africanisation (Eswatini) has a populist flavour which may provide cover for varying degrees of autocratic behaviours.

The high European judiciaries from Strasbourg, to Luxembourg, to Paris have become powerful institutional actors whose authority has moved past the interpretive, to the normative, to the political, and to the constitutional levels. At the very moment, however, that the judiciary blossoms into a full-fledged institution of government, it must find some new way to construct its legitimacy. This chapter thus sketches out two case studies that offer different, yet related, attempts to reconstruct judicial legitimacy in contemporary Europe. The first focuses on the judicial appointments reforms concerning the Court of Justice of the European Union and the European Court of Human Rights. The second turns to ongoing debates concerning the use of judicial analytics, the reform of the traditional French mode of composing judicial decisions, and other measures designed to increase access to French judicial reasoning. In a long series of interlocking reforms, both the French and European high courts have managed to further increase their already burgeoning clout.

The introduction of the book has two purposes. First, it explains why a normative theory of ECJ procedural and organisational law is needed. It puts forward three reasons: first, procedural and organisational design involves making important choices on the role of courts in society; second, the dominant normative approach to assessing the ECJ’s work, namely the focus on its methods of interpretation, faces a number of conceptual problems; and third, ECJ judicial reform is of great practical relevance and requires normative anchoring. Secondly, the introduction explains the empirical strategies the book pursues to investigate the ECJ’s inner workings. In particular, it explains how requests for access to adminstrative documents and statistical analysis is used in the book to get a better understanding how the ECJ’s procedural and organisational rules are applied in practice. Finally, the introduction summarises the core of the book’s argument.

To what extent are employees in the Mexican judiciary – both judges and lower level officials – connected by family ties? Are these family connections used inappropriately to hire or to favor relatives in ways that would not have been possible absent the family connection? This chapter takes advantage of a unique dataset to answer these questions. It documents a departure from the promise made in the judicial reform of 1994, that by removing the administration of the judiciary from the Supreme Court and transferring it to a judicial council, a professional and meritocratic judicial career would be established for all federal judges, making merit and not connections the main determinants of becoming a judge. The sheer magnitude and pervasiveness of family relationships within the Mexican federal judiciary conspicuously show the limitationsof this reform and highlight the challenges Mexico faces to consolidate judicial careers.

The Commission against Impunity in Guatemala was an unprecedented international partnership to build the rule of law in a weak state. Between 2007 and 2019, the CICIG contributed to important legal reforms, the creation of a specialized prosecutor’s office and “high-risk” courts, and investigations of more than sixty criminal networks before being shut down by a president whom it was investigating. The CICIG’s sponsorship by the United Nations and funding from international donors helped it to survive resistance from successive Guatemalan presidents. As the CICIG’s investigations and a stronger Guatemalan state threatened a broader array of previously untouchable powerful domestic actors – including in business, the military, and politics – domestic opposition became more obstructionist. The backlash against the CICIG was ultimately successful when an under-resourced and fragile pro-reform domestic coalition could not replace the international support that had lessened as a result of independent but simultaneous global political trends in the late 2010s. The CICIG experience suggests that rule of law reformers will struggle with backlash from those actors who would lose power and face punishment in a strengthened state and that backlash may be insurmountable as international allies move on.

As trial by jury is expanding across Georgia and covering more types of crimes, one question is gaining increasing importance – whether Georgians fully understand the reform, which to this point has expanded to seven cities and covers nearly 30 crimes in the Criminal Code. Without a well-informed public, progress of the reform will likely face serious challenges, such as citizens’ reluctance to participate, lengthy and costly selection procedures, and increased public support for the political opposition to the reform. Jury reform also remains a politically challenging process. Government support remains weak, exacerbated by skepticism from the courts. As a result, the reform is poorly funded and few, if any, efforts are made to educate the public. Furthermore, the jury receives little attention in the curriculum of Georgian law schools. The media is still not prepared for informed coverage of actual trials and is easily manipulated by opponents of the reform. This chapter addresses these and other problems faced by the Georgian jury and discusses risks that can hamper the development of the institution and discredit its value in the eyes of the public.

The introduction mirrors the volume’s overall structure. It begins with a review of the literature on post-2013 legal institutional reforms before turning to the context and content of procedural law changes and court reforms. The chapter then discusses the role of the Supreme People’s Court as an initiator of criminal procedure amendments and promoter of legal institutional reform. The most significant change in the judicial structure, which is caused by the introduction of the supervision commissions, is examined from the perspective of ongoing court reforms and the balance of power amongst the various actors within the judiciary. The introduction then turns to the criminal procedure law reforms enacted in 2012 and 2018, discussing the new mechanism of pretrial detention, the criminal justice reform goal of ‘trial-centredness’ and criminal reconciliation in public prosecution cases. As the contextual factors of criminal trials often have a decisive impact on the trial outcome, such factors as performance evaluations of courts and judges and media scrutiny of criminal cases are subsequently analysed. It concludes with a summary of the key issues and findings of the volume as a whole.

The chapter begins by outlining three stages of China’s judicial reform journey. The first stage, marked by the Western-oriented reforms launched in the late 1970s, featured judicial activism within uncertain boundaries. The second stage is often depicted as constituting a U-turn. This relatively brief stage was characterised by the revival of the mediation system and redistribution of power within the political–legal system. Finally, the third stage comprises the grand changes introduced since the 4th Plenum of the 18th Party Congress. The chapter then turns to the major reform measures introduced in the current round of reforms and uses empirical data to evaluate the extent to which they constitute a deviation from the previous reform path. Although the greater judicial transparency, personnel reforms, soft-centralisation of the judicial organs and ongoing supervision reform seen during this round have effected a fundamental overhaul of judicial power, they remain influenced by deeply embedded political constraints. The final section of the chapter summarises the Chinese characteristics of the pursuit of rule of law in a one-party state, including the ongoing populist turn, selective adoption of Western experiences, development of a distinct dispute resolution system, cycles of decentralisation and centralisation, and persistent party leadership.

As our discussion in Chapter 6 makes clear, how judges are selected shapes the power dynamics of the judicial tug of war. This makes judicial selection itself a source of heated conflict, the subject we take up in Chapter 7. We use our judicial tug-of-war framework to explore how the parties respond or try to change existing judicial selection mechanisms. Specifically, as we show, the greater the misalignment between the ideological preferences of attorneys and politicians, the greater the incentives political elites will have to introduce ideological considerations into the judicial selection process. Understanding this dynamic, we argue, is key to both explaining and predicting attempts at judicial reform: Under current ideological configurations, conservatives will, depending on how liberal they perceive the bar to be, back reform efforts oriented toward partisan elections and executive appointments, while liberals will work to maintain merit-oriented commissions. We explore the contours of this predictive framework with three illustrative case studies: Florida in 2001, Kansas in 2011, and North Carolina in 2016.

We pivot in this part to discussing the other key player in the judicial tug of war – political elites. Chapter 4 begins by considering how the interests of political actors and those of the bar clash over the captured judiciary. Specifically, over time, political actors and lawyers have drifted apart ideologically, resulting in tension. This mismatch, we argue, sets the stage for contemporary fights over the politicization of the judiciary, over activist judges, and over the meritocracy of the judiciary – the judicial tug of war. We also note in this chapter that an increased interjection of “politics” into the selection of judges, although perhaps unappealing to many Americans, need not necessarily be undesirable; after all, having a judiciary that represents a greater variety of political and ideological interests (including conservative ones), and not just the bar’s, might be the most desirable from a normative perspective.