Judicial independence: Why does de facto diverge from de jure?

Abstract

An independent judiciary is often hailed as one of the most important aspects of the rule of law. Securing judicial independence (JI) via explicit constitutional rules seems straightforward and there is evidence that de jure and de facto JI are linked, at least in the long term. However, the realized degree of judicial independence often diverges significantly from the constitutionally guaranteed one. Based on a worldwide panel dataset from 1950 to 2018, we find that a negative gap, that is, when de jure JI > de facto JI, is very common. Factors associated with a decreasing gap are the number of veto players and the extent of press freedom and democracy, whereas corruption is associated with an increasing gap between de jure JI and de facto JI.