Over the last several years, scholars of the judiciary have noticed substantial increases in the politicization of the judiciary across numerous countries. This “judicialization of politics” (Tate and Vallinder 1997; Brinks 2012) has manifested itself in several ways, including increased requests to adjudicate presidential elections. For example, the Ukrainian presidential election of 2004 witnessed high levels of outrage and frustration in response to a ruling by the Ukrainian Supreme Court. Yet in the United States, the justices of the US Supreme Court rendered a decision in Bush v. Gore (2000) that was widely accepted by society. What explains the differences in these reactions?

In large part, the different public responses may involve the fact that the United States is an established democracy with a long tradition of Supreme Court legitimacy, whereas Ukraine is a semiconsolidated democracy whose Supreme Court has yet to develop such solidification. If this is indeed the case, then it is important to better understand the mechanisms that facilitate high levels of public support for the judiciary, especially in relatively newly democratized nations. While a vast literature on trust in courts seeks to explain many of these factors in the context of the United States (e.g., Caldeira and Gibson 1992; Gibson, Caldeira, and Spence 2003), other established democracies (e.g., Gibson, Caldeira, and Baird 1998), and postconflict areas (e.g., McMahon and Western 2009; Bergling 2008; Sannerholm 2007), less attention has been paid to countries experiencing postcommunist and nonviolent democratic transitions. The comparative lack of attention by judicial scholars is disconcerting, and this piece begins to bridge an important gap in the literature. If public trust is truly integral in the ability of a court system to realize its intended, democratically reinforcing purpose, it is important to understand the factors that facilitate such support in as many developmental contexts as possible.

This chapter addresses these issues by focusing on levels of support for the judiciary across several countries in Eastern Europe and the former Soviet Union. Almost thirty years after the collapse of the Soviet Union, the new nations that emerged chose many different paths in determining their own identities. These countries are ideal for comparison, as they all share a history of communist rule (whether they existed as Soviet Republics or as independent nations under the Soviet Union’s sphere of influence) and all broke away at approximately the same time. Since transitioning, these states have also been subject to external threats to their sovereignty from Russia and have had to confront internal issues of extensive corruption by organized crime (Shelley 1995; Cheloukhine 2008). Additionally, a limited number of states, such as Poland and Hungary, have recently experienced a rise in right-wing political groups that increasingly focus attacks on the courts in an effort to scale back judicial authority and/or undermine institutional legitimacy.

Our analysis of 2008 survey data from twenty-one of these countries reveals evidence that public confidence in a country’s justice system is impacted by both individual- and country-level factors.^[1] At the individual level, we find confidence in the justice system is most strongly influenced by confidence in other governmental institutions. At the country level, we find that the level of democracy and the institutional development of the judiciary are the strongest predictors of high levels of confidence in the justice system. Not altogether different from existing literature on Latin America suggesting that individual support of the judiciary is linked to one’s ideological standing as it relates to the regime (Walker 2016), these findings appear to support our theory that legitimation is a two-level process of both system-level and personal evaluations of a government. Put simply, the kind of trust in the courts necessary to facilitate a consolidated, liberal judiciary results from the following components: viability of democratic institutions and individual approval of the regime.^[2]

Trust as a Two-Level Process

That the “institutionalization” of new democratic structures is necessary to effectively transition toward liberalism is nothing new, as ambiguous as the concept may be (e.g., Ghani and Lockhart 2008; Betts and Orchard 2014). Accordingly, the question of which factors on the international and intrastate levels precipitate societal confidence in these developing institutions is fundamental. In addition to channeling the interests of domestic political elites (e.g., Zurcher et al. 2013) one proposed solution to strengthening underdeveloped democracies at the system level has been to establish an independent judiciary (Widner 2001; Ghani and Lockhart 2008; Walter 2015; Pritchett et al. 2013, Reno 2008). A strong and independent judiciary can aid in the transition to democracy by helping a nation develop a legal culture free from corruption and political interference (Herron and Randazzo 2003; Larkins 1996). Yet this is easier said than done.

This is largely because understanding the mechanisms behind judicial independence is difficult. While most scholars see judicial independence as vitally important, it remains a concept for which scholars cannot agree on a uniform definition. Larkins (1996) provides one of the more thorough definitions when he states, “Judicial independence refers to the existence of judges who are not manipulated for political gain, who are impartial toward the parties of a dispute, and who form a judicial branch which has the power as an institution to regulate the legality of government behavior, enact neutral justice, and determine significant constitutional and legal values” (611).

While it is assumed that the presence of greater judicial independence in postcommunist countries will facilitate the establishment of the rule of law and thus smooth the transition (or potentially complete the transition) from authoritarianism to consolidated democracy, many features of the nation’s authoritarian past hinder the development of judicial independence, thus slowing this transition or leading to backsliding toward authoritarianism after democratic gains have been made (Herron and Randazzo 2003). Namely, a central concept of Soviet ideology was the consideration of the state as a unitary actor drawing all its power directly from the proletariat (Howard 2001). Since the idea of an independent judiciary presumes a system of separated powers, this concept is difficult to reconcile with the legacy of the communist legal system. Consequently, when transitioning to more democratic systems of governance, former Soviet countries not only have had to develop new legal systems, they also have to develop a culture of constitutionalism among the mass and elite publics. These struggles are unique to the postcommunist states, distinguishing them from other states, such as Chile or Argentina, that began their transitions to democracy peacefully and with some level of established constitutionalism (Walker 2016).

Again, this raises the question of how countries can escape this paradox, and avoid assumed antidemocratic path dependency. If judicial independence is necessary to establish the rule of law and facilitate the transition from authoritarianism to democracy, but remnants of the authoritarian legacy constrain the development of an independent judiciary, then how is democratization to move forward? As Howard (2001, 103) points out, “prospects for a constitutional culture are enhanced when state actors come to see the legitimacy of judicial review and are willing to accept decisions they do not like.” In other words, when a judiciary is able to demonstrate enough institutional legitimacy to rule against the government and have its decisions obeyed, then it has acquired a level of independence necessary to facilitate development of the rule of law and democratic transition.

Yet the development of judicial legitimacy does not occur simply through the creation and international support of a new system of law and government (Zeeuw 2005). At least one additional mechanism is necessary: public support. This leads us to the second component of our theory regarding the determinants of citizen trust in post-Soviet court systems. Institutional legitimacy derived from public support should allow for the evolution of increased judicial independence, in turn easing the transition to democracy.

To this end, much of the research on legitimacy—or diffuse support, as it is commonly termed^[3]—focuses on this buildup of institutional support into a “reservoir of favorable attitudes or good will that helps members [of the public] to accept or tolerate outputs to which they are opposed” (Easton 1966, 273). Absent this reservoir of goodwill, it is argued that courts will lack the ability to rule “against the preferences of the majority, even when it may be necessary or wise to do so” (Gibson, Caldeira, and Spence 2003, 356), thus making popular legitimacy a central component not only for the development of judicial independence but also for the type of trust needed for facilitating the overall consolidation of democratic regimes.

At its most basic level, trust in a political institution is simply an evaluation of how the institution is performing vis-à-vis one’s normative expectations as to how it should be performing (Hetherington 1998). Yet even at this level, it is difficult to disentangle short-term support for specific policy outputs from long-term support for the institution itself. This conceptual problem has led to a great deal of debate in the literature about how to measure trust, and whether trust—even if it can be measured—accurately reflects legitimacy.

Much of this debate focuses on the use of survey items that ask respondents about their level of trust or confidence in a political institution. Some scholars argue that these confidence measures are useful only as a measure of specific support and not diffuse support (Caldeira and Gibson 1992; Gibson, Caldeira, and Spence 2003; Gibson, Caldeira, and Baird 1998), where specific support refers to satisfaction with the institution’s immediate policy outputs and diffuse support reflects long-term institutional support or legitimacy. However, the evidence provided by these scholars comes mostly from established democracies, where there is arguably a distinct difference between specific support and diffuse support. In transitioning democracies, there simply has not been enough time for various institutions to develop similar levels of diffuse support. This is especially accurate for countries of the former Soviet Union, where public trust has not had ample time to accumulate. As Justice Todorov of the Bulgarian Constitutional Court noted, instances of the court standing up to the nation’s powerful political forces “actually raised the Court’s stature in the public’s eyes and elevated its institutional prestige” (quoted in Howard 2001, 103). Thus in these newly established courts instances of public confidence in specific court outputs help to build up this reservoir of diffuse support.^[4]

Further complicating the assumption that confidence is not an accurate measure of diffuse support is the admission by the strongest proponents of this view that even in established democracies specific and diffuse support are related (Caldeira and Gibson 1992; Gibson, Caldeira, and Spence 2003; Gibson, Caldeira, and Baird 1998). It seems intuitive to predict that this relationship would be even stronger in new democracies where there has not been sufficient time to build up the long-term institutional loyalty necessary to produce distinct levels of diffuse support among the public (Mishler and Rose 1997). Therefore, while specific and diffuse support may be distinct, albeit related, concepts when evaluating public opinion of courts in established democracies, there is sufficient evidence to suggest that this may not be the case in the newly established courts of post-communist Central and Eastern Europe. Not only do these new courts lack the reservoir of goodwill that courts in established democracies have developed over decades, but the only institutional legacy their constituents have to draw on is one in which courts served as a mechanism by which governments coerced their citizens into obedience (Mishler and Rose 1997; Howard 2001).

Here again it is important to recognize the legacy of centralized rule on perceptions of support and regime legitimacy. Namely, the presumed unity of institutions under Soviet rule may have indelibly shaped the way citizens in these nascent democracies evaluate both the judiciary and their governing institutions at large. Support for one branch of the government may naturally foster confidence in another.

In light of these challenges to democratic consolidation, scholarship describing the legitimation (or lack thereof) in both developed and postconflict settings gives us reason to believe that trust in the judiciary may be an interactive function of recognition and commendation. Put another way, to display confidence in their court system, citizens must be able to discern its integrity and simultaneously extend approval to it as a part of the greater governance of their regime. Either condition alone is insufficient to garner the trust necessary to foster democratic consolidation. The Afghan and East Timorese cases provide glaring evidence of this. In the aftermath of the conflict, the international community poured resources into developing and sustaining sophisticated, liberal court systems in both states. However, it quickly became apparent that, despite the demonstrable independence and aptitude of these court systems, citizens were generally refusing to utilize them due to pervading perceptions that the postconflict regime was not culturally suitable to govern (Hohe 2003). Additionally, research on support for the judiciary in Latin America suggests that general predispositions toward a regime powerfully influence individual approval of the courts.

Theoretical Expectations and Hypotheses

In summary, previous research on judicial support in established democracies indicates that several factors influence public trust in courts (Caldeira and Gibson 1992; Gibson, Caldeira, and Spence 2003; Gibson, Caldeira, and Baird 1998). Our analysis focuses on two sets of influences: one set at the system (or state) level and the other at the individual level. It is our contention that the combination of system- and individual-level factors provides the most appropriate explanation of confidence in the justice system.

At the system level, one potential influence on public confidence in courts is the level of democratic consolidation within a country. As countries develop their democratic norms and institutions, one should expect to see increased attention paid to concepts such as the rule of law and procedural fairness. While confidence in courts is essential for building the level of judicial independence necessary for the development of a robust rule of law, without some baseline level of democracy this public support cannot begin to develop and grow. Moreover, once that baseline has been reached, increased democratic consolidation should lead to further growth in public confidence in their country’s judiciary. This is especially important for countries breaking away from communist control and the policies developed by the former Soviet Union, as citizens would need to see a clear break from the prior legal system before they could develop the high levels of confidence often found in established democracies. Therefore, our first hypothesis states,

A second system-level influence on public confidence is the level of institutional development within a country’s judiciary. This level of development is important because it determines the viability of an institution to meaningfully affect laws, regulations, and norms across society. A nonviable institution can issue edicts and/or orders; these, however, are likely to get ignored by other actors in the political system. Along with the development of democratic norms and institutions more generally, Bumin, Randazzo, and Walker (2009) show the specific importance of courts attaining certain levels of institutional viability before they can play a significant role in democratic consolidation. Building on their initial conclusions, we argue that public confidence in courts is likely to increase as the level of institutional viability becomes more developed. Consequently, our second hypothesis claims,

In addition to the system-level influences, we expect individual-level factors to impact respondents’ attitudes toward their country’s justice system. Most importantly, previous research on Eastern Europe demonstrates that citizens often cannot distinguish among governmental institutions, and therefore equate questions of confidence in a specific institution to confidence in the government, broadly speaking (Mishler and Rose 1997). While this relationship is likely true for all important government institutions, levels of confidence in parliament (as the central law-making body) and the police (as the most visible enforcers of the law) would have the greatest influence on levels of confidence in the justice system as a whole. Therefore, we hypothesize,

Data and Methods

To test our hypotheses regarding the impact of this set of system-level and individual-level influences on confidence in a country’s justice system, we use data from a variety of sources. This approach is common in social science research as the collection of large-scale datasets is costly, both in terms of time and resources. When researchers gather large amounts of systematic data on a topic of interest to other scholars, they will typically make this data available for public use. This reflects core values of science and encourages the replication of analyses and the expansion of knowledge through a series of independent research projects. Our primary data source is the 2008 wave of the European Values Survey (EVS 2011).^[5] The EVS is a large-scale survey that asks a set of questions to citizens across most European countries. Because we are interested in countries that were either former Soviet republics or that were formerly communist and within the Soviet Union’s sphere of influence in Eastern Europe, we do not examine respondents from other European countries. Additionally, we drop observations with missing data for any key variables. This leaves us with meaningful responses from 28,903 individuals spread across twenty-one countries.^[6]

Our dependent variable is an individual measure of Confidence in the Justice System from the EVS. This is an ordinal measure capturing the level of confidence in the justice system of the respondent’s country. Each respondent in the survey was asked to rate their confidence in their country’s judicial system on a four-point scale. We reverse coded this four-point scale so that 1 represents a response of no confidence at all, 2 is not very much confidence, 3 is quite a lot of confidence, and 4 is a great deal of confidence. Figure 1 shows the average response to the survey item by country. As the figure shows, the average response in four countries is above 3 (Albania, Bulgaria, Croatia, and Ukraine), indicating that the average respondent from those countries has a high level of confidence in their judicial system. In contrast, three countries fall below a 2.5 average (Azerbaijan, Belarus, and Estonia), indicating that the average level of trust in those countries is significantly lower. All other countries have respondents with an average level of trust between 2.5 and 3.

As our primary theoretical interest lies in the relationship between the level of democratic development in a country and the level of public confidence in that nation’s justice system, we include a variable measuring the Level of Democratic Development. This measure is obtained from the Polity IV data. It is generated from measures of a nation’s level of democracy or autocracy along the following dimensions: competitiveness of political participation, regulation of political participation, competitiveness of executive recruitment, openness of executive recruitment, and constraints on the chief executive (Marshall, Gurr, and Jaggers 2014). Per our first hypothesis, we expect that this variable will be positively related to Confidence in the Justice System.

Our theoretical model indicates that levels of judicial independence also affect public confidence in the courts. As a proxy measure for judicial independence, we rely on the Judicial Viability Index developed by Bumin, Randazzo, and Walker (2009). This measure focuses specifically on countries from the former Soviet Union and measures institutional development (i.e., viability) across three major dimensions: differentiation, autonomy, and durability. As the authors explain in their article, these dimensions capture the extent to which courts are distinguishable from other governmental institutions (differentiation), whether they possess independent authority to affect laws and regulations established by the political branches of government (autonomy), and the length of time that they have had direct control over internal operating mechanisms (durability). The Judicial Viability Index combines specific indicators of these dimensions into a single empirical measure that fluctuates annually. As the authors note, “according to our analysis of annual court data across several countries, myriad aspects pertaining to differentiation, durability and autonomy represent a single, underlying dimension of viability that explains 89% of the variance in judicial institutions” (2009, 149). Because we believe that greater levels of institutional development within the judiciary will lead to higher levels of public confidence, we expect a positive relationship to exist between the Judicial Viability Index and our dependent variable.

While judicial institutionalization is related to traditional notions of independence, it is still conceptually distinct. As such, we also include a more direct measure of de facto judicial independence. Specifically, we use Linzer and Staton’s (2015) latent judicial independence measure, which combines multiple existing judicial independence ratings along eight dimensions while adjusting for measurement error and missing data in the existing measures.

The final country-level variable is a measure of per capita GDP to account for the economic conditions of each country. This data comes from the ERS International Macroeconomic Data Set (Heerman 2015), with all values reported in 2010 US dollars. While we have no specific theoretical expectations regarding this variable, economic conditions are likely to impact citizen perceptions of their government broadly, and potentially their perceptions of the justice system specifically, despite its muted impact on economic conditions.

At the individual level, we include several measures drawn from various questions included in the EVS. Since the legacy of the previous communist regimes still looms large in many of the nations of postcommunist Central and Eastern Europe, there is theoretical evidence—as well as evidence from previous research—to suggest that many respondents in these countries may still view their national government as a unitary institution (Mishler and Rose 1997). Moreover, even if this implicit view of the government as a single unit diminishes over time systematically as people begin to become more familiar with their new government structure, there is still likely to be a strong relationship between trust in one part of government and trust in others (Rohrschneider 2005). Thus we expect that confidence in parliament and confidence in the police will be positively related to confidence in courts. Additionally, we include measures of the standard demographic variables of gender, age, and education, although we do not hypothesize a directional relationship.

Results

To test our theory, we apply a statistical model to our data that evaluates the relationship between the different levels of the dependent variable and the independent variables we believe may have an effect. Since we expect that each country in the dataset will be affected to some extent by its unique characteristics and history, the model also accounts for potential differences (variation) between the individual countries included in the dataset. The results from this model (shown below) suggest that both system- and individual-level factors influence levels of public confidence in a nation’s justice system in a way that is consistent with our theory.

Table 1: Determinants of confidence in the justice system

Dependent variable is respondent’s level of confidence in the justice system measure on a four point ordinal scale from 1 (None at all) to 4 (A great deal). Cell entries for the fixed-effects portion of the model are ordered logit coefficient estimates, with standard errors in parentheses.

A country’s level of democratic consolidation—as measured by its Polity score—and degree of judiciary institutional development positively impact the level of confidence in the justice system expressed by its citizens. However, neither judicial independence nor national economic strength appears to have an important relationship with citizen confidence, according to our model. These results are in line with the expectations outlined in our first two hypotheses, suggesting that individual-level confidence in a country’s justice system is positively impacted by increased levels of general democratic consolidation and institutional development within the judiciary more specifically. These effects are independent of any individual-level factors.

These results align well with our theoretical expectations and prior research suggesting that while public trust in the judiciary is an essential component for building up its institutional legitimacy, and that judicial independence is necessary for a state to enjoy the rule of law, necessary levels of this trust cannot be reached until a baseline level of democracy and institutionalization of the judiciary has first been achieved. Moreover, while not the focus of our analysis, these results suggest that once such a baseline level is reached, further democratic consolidation and increased levels of trust in courts are likely to build off each other. Put simply, based on these results, we expect that increases in one should lead naturally to increases in the other in something of a positive feedback loop.

Our results also largely support our expectations regarding the individual factors contributing to confidence in a country’s judiciary. The positive effects of confidence in parliament and confidence in the police on confidence in the justice system are squarely in line with the predictions expressed in our third hypothesis. While this finding might seem intuitive for any country to some extent, the strength of the relationship here is likely a reflection of an internalized tendency among citizens in post-Soviet states to view their current government as a single, unified entity, the way they did in their communist past. Finally, while the statistical association between the dependent variable and the demographic variables included in the model indicate there might be an important relationship, the substantive effects of these variables appear to be quite small, suggesting that the impact of these variables on confidence in the judiciary is not meaningful.

Figures 2–5 more directly illustrate the effects for our variables of interest. First, figures 2 and 3 show the substantive impact of shifting the two key country-level variables from their minimum to their maximum values on the probability a respondent will express a given level of confidence in courts (holding all other variables constant). In figure 2, we observe that moving from the lowest Polity score (Azerbaijan and Belarus) to the highest (Hungary, Lithuania, Poland, Slovakia, Slovenia, and Ukraine) equates to a significant increase in the likelihood a respondent will have quite a lot (by approximately 7.6 percent) or a great deal (by approximately 15.4 percent) of confidence in the justice system. That same shift in the Polity score of a respondent’s country corresponds to a decrease of about 19.5 percent in the probability she will claim to have not very much confidence in her justice system and a decrease of about 4.8 percent in the probability she will express no confidence at all.

Similarly, as figure 3 illustrates, shifting the judicial viability index of the respondent’s country from the minimum (Belarus) to the maximum (Slovenia) value corresponds with an increase in the likelihood of an individual expressing that she has quite a lot (approximately by 16.2 percent) or a great deal (approximately by 8 percent) of confidence in the justice system and a decrease in the likelihood of her expressing not very much confidence (approximately by 10.4 percent) or none at all (approximately by 1.7 percent).

Finally, figures 4 and 5 show that the impact of the key individual-level variables of interest is significantly greater than the impact of the key system-level factors. Shifting from the lowest level of confidence in the police or confidence in parliament to the highest level dramatically increases the probability that a respondent will have quite have a lot (by approximately 22.5 percent and 24.1 percent, respectively) or a great deal (by approximately 36 percent and 29.8 percent, respectively) of confidence in the justice system, while noticeably decreasing the probability of expressing not very much confidence in the justice system (by approximately 46.8 percent and 36.5 percent, respectively) or none at all (by approximately 11.9 percent and 17.1 percent, respectively).

Conclusion

Our inquiry focused on levels of support for the judiciary across several countries in Eastern Europe and the former Soviet Union. Specifically, we attempted to determine the various influences on public confidence in the courts of postcommunist countries. Additionally, our theoretical model attempted to address how confidence in the judiciary facilitates democratic consolidation within these transitioning countries. Over the course of this research, several noteworthy findings and conclusions emerged.

First, our empirical models provide evidence that a country’s level of democracy and the institutional development of the judiciary strongly affect public confidence in the judiciary. This is important for our understanding of the development of strong, healthy democracy generally, and the rule of law specifically. While prior work has focused on the central role of judicial legitimacy in the development of the rule of law (O’Donnell 2004; Teitel 1994; Widner 2001), our findings suggest that the converse is also true, as the high levels of support necessary for legitimacy cannot form without some degree of judicial institutionalization and democratization. Future research should further examine the complex interdependence of these concepts and the implications of this relationship on facilitating successful democratic transitions.

Our second general conclusion relates to our individual-level findings. While a country’s level of democracy and the institutional development of its judicial system were important determinants of an individual’s confidence in the justice system, these effects were muted in comparison to the impact of that individual’s confidence in other governmental institutions, specifically parliament and the police. The mere existence of a positive relationship is quite intuitive. However, the strength of these relationships suggests that the legacy of a communist system where the government existed as a single unitary entity continues to echo in the collective memory of these nations nearly twenty years later.

These results raise additional questions about the current environment for courts in the postcommunist countries. As we stated earlier, a limited number (such as Poland and Hungary) has recently experienced a rise of right-wing political groups who increasingly focus their attention on the judiciary and actively work to undermine judicial independence and legitimacy. To what extent have these groups been successful at decreasing public confidence in the courts? Fortunately, new waves of data from both the World Values Survey and the European Values Survey are set for public release in the near future. These datasets will contain the results of surveys conducted across multiple countries from 2017 to 2020. Once the data are publicly available we will be able to compare the results from this study to the more recent survey responses and determine the extent to which the conclusions remain consistent.

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Student Activity

1. 1. For the following countries, identify the specific structure of their judiciary (how many levels of courts, names of court institutions). To what extent are the courts viewed as independent?
      1. Azerbaijan
      2. Belarus
      3. Czech Republic
      4. Georgia
      5. Kazakhstan
      6. Lithuania
      7. Moldova
      8. Russia
      9. Slovakia
      10. Turkmenistan
   2. For the countries listed above, how likely is it that average citizens will express trust in their judicial institutions? What effect will this trust (or lack of trust) have on the rule of law? Why?
   3. Pick one of the countries where you stated that average citizens should have a lack of trust in their judicial institutions in Question 2. If a specific citizen in that country has a high level of trust in their country’s parliament and police, do you think that individual citizen would also have a high level of trust in their justice system? Why or why not?