Political Competition, Judicial Independence, and Electoral Regime Age

Abstract

Independent courts that can make governments abide by existing laws are widely believed to be essential for the consolidation of democracy and beneficial to economic development (e.g. Landes and Posner, 1975; North and Weingast, 1989; Linz and Stepan, 1996; Henisz, 2000; Feld and Voigt, 2003; O’Donnell, 2004 etc.). Such institutions are not cost-free, however, as they require incumbent politicians in the executive and the legislative to accept significant constraint on their power in the interest of long-term benefits, such as democratic development and economic growth. Under what circumstances do politicians tolerate or provide an independent judiciary?A large literature attributes the emergence and maintenance of independent courts in competitive regimes to the strategic behavior of judges and politicians in response to robust political competition. The conventional wisdom is that weaker incumbents, who are either currently constrained by a strong opposition or faced with an imminent loss of power, are more likely to institute, tolerate, or simply encounter a judiciary that does not cater overwhelmingly to their interests. Stronger incumbents, on the other hand, who confront a fragmented and/or weak opposition and can reasonably expect to remain in power, are prone to curtailing or disrespecting the independence of the judiciary (e.g. Ferejohn and Shipan, 1990; Spiller and Gely, 1992; Ramseyer, 1994; Magalhaes, 1999; Ginsburg, 2002; Iaryczower, Spiller, and Tommasi, 2002; Epstein, Knight and Shvetsova, 2002; Helmke, 2002; Stephenson, 2003; Hanssen, 2004; Chavez, 2004, etc.). In other words, higher levels of political competition are traditionally expected to be associated with greater judicial independence. Some recent studies, however, have questioned the standard story and have suggested that intense political competition can actually create strategic incentives for weak incumbents to use dependent courts to try to hold on to power and thus lead to lower levels of judicial independence (Popova 2006, 2010, 2012; Rebolledo and Rosenbluth, 2009; Trochev, 2010). This paper provides support for Popova’s (2010, 2012) strategic pressure theory, which posits that intense political competition incentivises politicians in new electoral regimes to curtail the independence of the courts. We also take into consideration the regime context in which politicians decide whether to provide independent courts and judges decide whether to stand up to hostile incumbents. Specifically, we investigate the potential influence of the age of an electoral regime (that is, how long the regime's electoral institutions have been in place) on the relationship between political competition and judicial independence. We assume that as electoral regimes age, the degree of certainty about actors' behaviour and knowledge about how regime institutions structure political interactions increase. We hypothesize that fuller knowledge about past and future behaviour is likely to affect the cost-benefit analysis that produces independent or dependent courts. The empirical analysis confirms our hypothesis and indicates that electoral regime age has a modifying effect on the relationship between political competition and judicial independence. Political competition is found to hamper judicial independence in young electoral regimes, but the negative effect gradually disappears (and the relationship may even be reversed at some point), as electoral regimes mature.