Reading The Law of Blood can help us understand the beliefs that animated National Socialism, and help us see what they were not.
Judicial independence in authoritarian regimes sounds like an oxymoron. Often it is. But sometimes it isn’t. The “isn’t” part isn’t as puzzling as it may seem. Think of the classic principal-agent setup. The main purpose for which principals seek out agents is because principals need agents to do what the principal cannot. The principal may need an agent with expertise or other skills the principal does not have, as in going to a physician to diagnose an ailment. Or it may be a matter of needing additional hands to do the work the principal wants or needs to accomplish. In either case, the principal wants and need to grant the agent a measure of independence if the agent is to be of much use to the principal.
Authoritarian rulers need to implement laws (or decrees) as much as non-authoritarians do. In a jurisdiction of any size, one official, or one small group of officials, can’t administer all laws or decide all cases themselves. Incident to appointing agents, any agents, the authoritarian-principal concedes some level of autonomy to courts so the authoritarian can devote attention to items of greater significance.
To be sure, this is independence in the small. Judges in ordinary cases find facts and apply the law or decree, everyday matters to which the authoritarian need not normally attend. In political cases, however defined, judges in authoritarian nations are not free to rule contrary to the preferences of the ruler. That would seem to be true almost by definition of “authoritarian.”
Even then, however, judges, when they wish, can at times eke out some independence defined in the more rigorous sense of deciding some cases contrary to the preferences of the authoritarian. The case and conditions under which this occurs have attracted increasing attention among scholars in recent decades. While arising under varied conditions, those conditions are not as rare as the oxymoron suggests.
First, there is the lumpiness of generic delegation in principal-agent relationships. While principals naturally desire agents to share identical objectives as the principal, agents’ preferences usually diverge as a matter of course from those of their principals. A physician, for example, often face time or resource constraints that deter exhaustive investigation of likely causes of an ailment. In the reverse, with third-party insurance, physicians often have inducements to order unnecessary tests and procedures for patients. Because of informational asymmetries between patient (principal) and physician (agent), patients are usually hard-pressed to second guess physicians’ decisions.
Public choice theory applies this insight to government officials; the incentives subordinate government officials, including judges, have for their work usually do not align perfectly with the preferences of legislators, or citizens, in necessarily delegating work. While the bulk of public choice theory devotes itself to considering this (unavoidable) malalignment of preferences in democratic systems, the insight applies as well to authoritarian systems (with the mutatis mutandis of replacing “citizen” with “authoritarian”).
The principal-agent relationship between authoritarian and judge opens the possibility of some real independent action on the part of judges, meaning judicial actions in the teeth of authoritarian preferences. In the equilibrium to the canonical monitoring game there is of necessity some slack between the actions the principal most prefers the agent to take, and the actual actions the agent takes in light of the level of monitoring the principal provides. Optimal levels of monitoring for principals usually allow some level of shirking on the part of the agent. The amount of slack varies from case to case depending on the differing costs and benefits between principals and agents, and across principals and agents in different contexts. Nonetheless, inherent in the principal-agent relationship between authoritarian and judge (as between legislature and judge) is some room for judges to take some actions that diverge from the preference of the authoritarian. We can reasonably call this area of slack, “judicial independence.”
In subsequent posts, I want to discuss conditions under which judicial independence in authoritarian regimes can expand beyond the slack derived of necessity from the principal-agent relationships, and also discuss cases in which scholars misinterpret judicial behavior as judicial independence when in fact judges act entirely under the control, and at the behest, of authoritarian rulers.