Teilprojekt 5: Kultur

The issue

Since the reforms of 1999, Swiss justice has launched initiatives linked to the managerial repertoire (Kettiger 2003) and try to better integrate the expectations of its stakeholders. These strategies consider judicial systems as “public services”, but do not contest the fundamental principle of the third power, stating that judges are constitutionally independent and must be able to work freely, without external pressure. This part of the global Justizforschung-project (TP5) analyses this question from the perspective of the judiciary’s culture, in order to evaluate the extent it already does or does not include the values put forward by managerial approaches (Schedler & Proeller, 2007). The main research question is therefore: “how receptive is the judiciary’s culture to managerial approaches, and in particular to management-oriented values?” In comparison with other public organizations, the judiciary seems to be rather reluctant to adopt managerial reforms, a situation which may result from cultural resistances, in particular from judges (De Santis & Emery 2015; De Santis & Emery, 2016).

The methodology

The methodology adopted in this project in a combination of a qualitative part based on more than 80 interviews with stakeholders (judges, court managers, politicians, lawyers, journalists, clerks, prosecutors, administrative staff, non-professional judges, and academic) in first and second instance courts in civil, administrative and criminal tribunals of nine cantons[1] in the three linguistic regions of the country; and a quantitative part made of a large survey in the same cantons by the same actors.

Using a statistical analysis, we compare the key expectations associated with the idea of “good justice”, as well as the perceptions of reality as experienced in the courts by several stakeholders of the Swiss judiciary and discuss them using the worlds of Boltanski and Thévenot (Boltanski & Thévenot, 1991).

The results (for first and second instance courts, similar results for the Supreme Court available at the end of 2016)

The values and expectations of the different stakeholders appeared relatively convergent and consistent with those of NPM (i.e. managerial values) after the qualitative analysis of the interviews performed previously (Yves Emery & De Santis, 2014). For instance, the two most quoted expectations by our interviewees (including judges) when defining “good justice” were fast and communicative, which are compatible with NPM principles. Nevertheless, some resistance to managerial ideas and values was already noticed during the interview phase, especially when it comes to judges, who basically argue that management instruments are not suited to the judiciary.

“Good justice” is, according to our exploratory factor analysis of the quantitative results (which account for approximately 51% of the variance): 1) a “reliable partner”: respects the professional secrecy, courteous and respectful of the litigants, credible, respectful of equal treatment between litigants, trustworthy, considers the litigants’ point of view seriously; 2) “integrated in society, serves the citizens”: humane and close to the people, a service for the public, receptive, communicative (media, public), lay judges also render judgements; 3) “accessible and effective”: simple and pragmatic, fast, understandable (decisions), transparent and open to society, effective to repair the damage; 4) “impact-oriented”: severe (in the sanctions), intimidating, effective to prevent recidivism (criminal), not too expensive for the taxpayer (% of state budget); 5) “competent, well equipped and functional”: has enough staff, well equipped (infrastructure), has competent staff, efficient and well organized; 6) “free from any pressure, fair”: impartial, independent, not arbitrary, not corrupted.

All these factors are hybrid and mobilize values emanating from different worlds according to Bolstanski & Thévenot. Nevertheless, the most important factors from the point of view of judges (and also, even less predominantly, for other stakeholders), i.e. factors 1) and 6), reflect the civic world, which is also still the most relevant in the Swiss Judiciary. Moreover, the cultural “Röstigraben” (i.e. gulf, split) observed between German-speaking and French-speaking regions of the country in other fields of public management does not seem to be present in the judiciary, as the observed significant differences.

The factors’ misfits (i.e. the difference between expectations and perceptions) are predominantly high when it comes to items related to managerial values, indicating that improvements are most wanted in this domain.  The misfits perceived by judges is smaller than for the other actors, because judges are always more satisfied than the other actors of the judiciary.

The conclusions

Overall, our results suggest that Swiss courts, like other branches of government, will probably take the path of a certain hybridization, or even of a fusion between “good governance” and “good justice”, revealing a post-bureaucratic culture tending to integrate managerial values and classic-bureaucratic ones (Y. Emery & Giauque, 2014) without fundamentally challenging the managerial approach but suggesting a tailor-made model to the judicial institution.

Bibliography

Boltanski, L., & Thévenot, L. (1991). De la justification. Les économies de la grandeur. Paris: Gallimard.
De Santis, L. G., & Emery , Y. (2015). Court managers and judges about “good” justice: Their main expectations and how they fit with the perceptions of the Swiss population. In Y. Emery , L. G. De Santis & V. Hertig (Eds.), Peut-on manager la justice? Bern: Stämpfli-Verlag.
De Santis, L. G., & Emery, Y. (2016). La culture judiciaire suisse comme nouveau territoire du NPM – Quelle(s) ouverture(s) des juges aux valeurs managériales ? In H.-O. Pyun & C. Edey Gamassou (Eds.), Réformes publiques : Expériences et Enseignements. Paris: L'Harmattan.
Emery, Y., & De Santis, L. G. (2014). What Kind of Justice Today? Expectations Of ‘Good Justice’, Convergences And Divergences Between Managerial And Judicial Actors And How They Fit Within Management-Oriented Values. International  Journal For Court Administration, 6(12), 63-75.
Emery, Y., & Giauque, D. (2014). Introduction : l'univers hybride de l'administration au XXIème siècle. Revue internationale des sciences administratives, 80(1), 25-34.
Schedler, K., & Proeller, I. (Eds.). (2007). Cultural Aspects of Public Management Reform. Oxford, UK: Elsevier.



[1] The French-speaking cantons (Geneva, Vaud, Neuchâtel, Fribourg, Valais, and Jura) are the core of the analysis while the German-speaking ones (Schaffhausen and Luzern) and the Italian region (Ticino) are used for comparisons.