Integrating De Jure Independence

Abstract

Chapter 4 addresses the disconnect between the results in Chapter 3 and existing case studies of competition and independence. It argues that in democracies, changes in the competitiveness of the electoral arena should primarily be associated changes in the formal, de jure provisions for courts. This is because the costs and benefits of infringing on de jure vs. de facto insurance vary across regime type. In democracies, the stronger effects of constitutionalism mean that flouting the rules has a greater likelihood of producing public backlash. The main test of this argument is an in-depth case study of the de jure attacks on the independence of the judiciary in Hungary after the 2010 election. This case study draws on extensive expert interviews with leading legal scholars, government officials, and Hungarian Constitutional Court justices. Recognizing that theories should be tested “out of sample” whenever possible, it ends by assessing the argument cross-nationally, and demonstrates that in democracies changing levels of competition are associated with changes in de jure rather than de facto independence.