Does
the Judicial Formalism is Always Harmful?
Ivan
César Ribeiro
São
Paulo University Law School
April
9th, 2007
Abstract:
This paper discusses some
of the foundations of the rule of law and due process of law.
It makes a counterpoint to the widespread idea that more
formalism leads to more corruption and worse institutions (Djankov
et al, 2003). Following these authors, de degree of formalism,
as measured by an index they propose, vary according to the
legal origin, and the higher formalism index results in less
impartial, affordable, honest and quick justice.
The paper construct upon this hypothesis, taking into account
the proposition that in the presence of great inequality in
economic and political resources, the wealthy and the
politically powerful will subvert institutions in their own
benefit, as proposed by Glaeser, Scheinkman and Shleifer
(2003). In such situation the outcome of more formalism will
be the opposite of the predicted, and one will face a lesser
degree of corruption and better institutions. This concept
would be at root of the rules aimed at assuring the due
process of law.
Departing from the dataset and models used by Djankov et al,
the article tests the interaction between the formalism index
Djankov et al propose and an inequality index (GINI),
resulting in a significant and positive relation between this
interaction the quality of the judicial system. The
cross-country analysis made stills for several others
formalism, corruption and institutional quality indexes. When
controlled for endogeneity the results are not so strong due
the use of weak instruments (legal origin), both for the
article hypothesis and for the Djankov et al hypothesis. At
end, some tests are made trying to separate the elements of
formalism that are detrimental to subversion of justice from
those that are harmful for justice, as a guidance to
policy-makers.
Keywords:
Inequality, Growth, Subversion of Institutions, Legal System
JEL Codes: D30, K42, O17, O40, P51
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Here for a Portuguese Version
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Research
in Focus
Robin Hood Vs. King John Redistribution: How Do Local Judges Decide Cases in Brazil?
Ivan
César Ribeiro
São
Paulo University Law School
February
4th, 2007
This
article discusses two opposed hypotheses to predict the
behavior of judges when they have to decide a claim between
parties with asymmetrical economic and political power.
The
first, which has broad acceptance among policy makers in
Brazil, is the jurisdictional uncertainty hypothesis (Arida et
al, 2005) that suggests that Brazilian judges tend to favor
the weak party in the claim as a form of social justice and
redistribution of income in favor of the poor.
Glaeser
et al. (2003) stated the second hypothesis. They suggest that
the operation of legal, political and regulatory institutions
is subverted by the wealthy and politically powerful for their
own benefit, a situation they call King John redistribution.
An empirical test was conducted analyzing judicial decisions
from 16 Brazilian states, showing that
a)
judges favor the strongest party,
b)
a local powerful party has more chance to be favored than a
national or foreign big company, a e¤ect we named parochial
subversion of justice and
c)
in Brazilian states where we have more social inequality there
is higher probability that a discussed contract clause will
not be maintained.
Keywords:
Inequality, Subversion of Justice, Property Rights.
JEL
Codes: D30, K42, O17.
Click
Here for a Portuguese version
Click
Here for an English version
|
