Authors: Bertrand Crettez, Bruno Deffains, Olivier Musy and Ronan Tallec
Journal: Journal of Comparative Economics, 2025.
In various research areas (Comparative legal history, political economy, institutional economics), a question is to understand how apparently inefficient institutions may emerge as second-best responses to fiscal and political constraints.
Within this approach, an important question to understand is why did France voluntarily create one of the most independent – and most criticized – judicial systems in Early Modern Europe? Why would a ruler deliberately sell judicial offices even though this reduces judicial independence and appears to generate corruption? Traditional legal history usually treats judicial venality as an irrational institutional failure. This paper instead asks whether it could have been a rational institutional response to severe fiscal constraints.
The paper argues that judicial venality was not simply corruption. It was a mechanism allowing a fiscally constrained state to finance the expansion of its judicial system without raising taxes. Instead of taxpayers financing justice, litigants financed judges directly, while the monarchy obtained immediate revenue by selling judicial offices. The system therefore traded judicial quality for state capacity.
The paper
develops the first formal economic model of French judicial venality;
combines law & economics with comparative legal history;
explains why judicial venality could persist for nearly three centuries;
shows how fiscal constraints shaped legal institutions;
provides a rational-choice explanation for the rise and eventual disappearance of judicial venality.
The model identifies two incentive distortions.
First, judges who are paid through litigation fees have incentives to encourage litigation and to prolong judicial procedures.
Second, because offices are sold to the highest bidder, the monarchy gradually selects judges expecting the largest financial returns from litigation.
These two mechanisms reinforce each other over time. The result is a dynamic process in which judicial capacity expands while judicial quality deteriorates.
The theoretical predictions are confronted with extensive historical evidence from Old Regime France.
The paper documents and links together:
the rapid expansion of judicial offices during the sixteenth and seventeenth centuries;
the close relationship between office creation and wartime financing;
the increasing criticism of judicial costs and delays;
the persistence of venality despite repeated attempts at reform;
the abolition of the system during the French Revolution.