Judicial Venality: A Rational Choice Analysis

Venality, i.e., the sale of public positions, was widely used in the judicial sector in France between the 16th and 18th centuries. In a venal system, litigants finance the justice system by paying the judges directly. In France, moreover, the right to judge was sold by the ruler, who indirectly levied part of the legal costs. Here, instead of the state funding justice, justice funds the state. The cost to the King was a loss of control over the judiciary and biased legal decisions. We develop a model of judicial venality and build on this model to provide an analytical narrative of the rise and decline of judicial venality in Old Regime France. Historically, judicial venality enhanced legal capacity whereas the kings faced with limited opportunities to raise taxes and to borrow. Lack of control over the judiciary, however, led to overly costly and time-consuming trials, resulting in its final demise.