Towards a Comprehensive Understanding of Judicial Autonomy: Patterns of Attack and Resilience

The paper contributes to the theoretical debate about the foundations of judicial autonomy as one of the main pillars of a democratic state under the rule of law. While there is an ongoing theoretical debate about the essence of the rule of law, an independent – or as we phrase it: autonomous – judiciary undoubtedly represents a core part of any rule of law concept. Previous studies have oftentimes applied an overly narrow perspective on the concept of judicial autonomy, by overemphasizing singular aspects, such as the relevance of judicial appointment procedures, while neglecting the impact and the interdependence with other factors, such as the legal design around disciplinary proceedings or judicial self-governance. Moreover, the body of literature on judicial autonomy tends to concentrate on constitutional courts, thereby disregarding the significance of ordinary courts. Nevertheless, judicial autonomy is neither a static value nor a simple phenomenon. From this standpoint, the primary objectives of this paper are twofold. Firstly, utilizing a novel dataset developed within the framework of the "Judicial Autonomy Under Authoritarian Attack" project, the analysis extends beyond singular aspects. Instead, it provides a comprehensive examination of various dimensions of judicial autonomy, encompassing individual judges' appointments, their rights and obligations, as well as the administrative and budgetary autonomy of courts, and their interconnections. Secondly, the paper concentrates on judicial reforms as pivotal components in the investigation of "rule of law backsliding", encompassing assaults on the separation of powers in general and the individual and institutional autonomy of judges in particular. Although these reforms are typically introduced under the rationale of fortifying the judiciary and safeguarding its autonomy, a closer examination, coupled with other modifications in a specific context, may reveal outcomes that weaken or even undermine judicial autonomy instead. The paper is structured along two lines. First, it introduces a pioneering dataset within the field of judicial autonomy research. This dataset encompasses all pertinent legal provisions related to individual judges' appointments, their rights and obligations, as well as the administrative and budgetary autonomy of courts in 42 Council of Europe (CoE) member states. Through systematic coding of judicial systems and thorough documentation of all legal changes spanning the last 23 years (2000-2022), the dataset provides the foundation for a thorough analysis of nearly all European judicial systems. It accounts for detailed intra-case and trans-national variances. Second, the paper reveals the empirical findings of a Qualitative Comparative Analysis (QCA) that addresses two key inquiries: firstly, which normative provisions effectively enhance de facto judicial autonomy in Council of Europe (CoE) member states, and secondly, what legal, institutional, and political configurations contribute to making judiciaries more resilient against authoritarian attacks. In this manner, our goal is to utilize QCA to identify patterns that encompass the necessary and sufficient conditions for the effective establishment of judicial autonomy, a fundamental component of upholding the rule of law.