Examining the Development of Judicial Independence

Abstract

Scholars who examine judicial independence offer various theories regarding its development. Some argue that it serves as a type of insurance for regimes who believe their majority status is in jeopardy. Other scholars argue that insurance theory does not offer an adequate explanation until states democratize. We argue that part of the explanation for these mixed results involves the inadequacy of insurance theory as a complete explanation. Our paper develops a multidimensional theory that focuses on the interplay of constraints on ruling elites derived from levels of political competition within the government, the potential for social competition within the state, and regime type. We test our argument using a dataset of approximately 145 countries over forty years, and our results support the argument that development of judicial independence is related to the political landscape encountered by the executive. Ethnic fractionalization in the state, political competition, and regime type each has a conditional effect on the observation of judicial independence.

Conflict and Courts: Civil War and Judicial Independence across Democracies

“…Our argument has implications not only for the study of conflict and courts, but judicial independence more broadly. For example, our findings suggest that existing studies finding no relationship between conflict and independence (Epperly 2017;Randazzo, Gibler, and Reid 2016) rest on the shaky assumption that conflict has only a negative effect on independence. Similarly, research about how conflict affects other components of the rule of law approaches the issue from the perspective that conflict's onset undermines the rule of law (Call 2007).…”

Can Courts in Nondemocracies Deter Election Fraud? De Jure Judicial Independence, Political Competition, and Election Integrity

“…All variables described below lag one year behind any preelection judicial reform. These are the age of the regime in years (Boix, Miller, and Rosato 2013) because younger democracies may be more prone to changes in judicial independence (Helmke and Rosenbluth 2009), the level of economic development (Helmke and Rosenbluth 2009), the openness of the media environment (Staton 2010) and of the political system (Ramseyer 1994), the degree of concentration of power in the executive, and the extent of horizontal competition between the executive and the legislature (Epperly 2019;Helmke 2012;Randazzo, Gibler, and Reid 2016). I also include measures of high-court independence and low-court independence from V-Dem, as well as the latent judicial independence measure developed by Linzer and Staton (2015).…”

Political Competition and Judicial Independence: How Courts Fill the Void When Legislatures Are Ineffective

“…In the separation of powers game, judges face constraints in exercising de facto independence, which primarily hinges on a judge's evaluation of the level of political competition within the system. For instance, Randazzo et al (2016) utilize various electoral indicators of competition to better understand the impact on courts. Among democratic regimes, a party's electoral performance is a strong signal for when legislators in government need "to develop judicial institutions as protection following a change in leadership" (586).…”