Political competition and de facto judicial independence in non‐democracies

Abstract

This article investigates the role of political competition in explaining de facto judicial independence in non‐democratic regimes. It argues that the electoral, political insurance explanation popular in the study of courts in democracies also offers explanatory power in the autocratic context, despite popular wisdom otherwise: due to the relatively greater risks of losing power in non‐democracies, electoral competition is highly salient when present. This is examined via hierarchical and fixed effects models that show competition strongly associated with increased levels of independence. This relationship is robust to alternative model and data specification, and has strong out‐of‐sample predictive accuracy.

Delayed but not derailed: legislative compliance with European Court of Human Rights judgments

“…This finding holds also when controlling for other characteristics of the respondent state, such as the degree of democratic consolidation and the strength of checks and balances. While electoral uncertainty has previously been found to explain the introduction of judicial review in domestic constitutions (Ginsburg and Versteeg 2014) and cross-national variation in judicial independence (Stephenson 2003, Epperly 2017, I am the first to show that political competition promotes compliance with adverse judgments and to apply the political-competition theory of judicial review to the context of international courts. Importantly, political competition may explain why political criticism of IHRCs in several respondent states has not necessarily reduced the level of compliance (Lambrecht 2016a: 513-514).…”

The case for courts

“…What these examples suggest is that investment and protection of property rights might be an important theoretical contribution for understanding why regimes might want to strengthen or create courts, but the empirical relationship is less clear. Additionally, Epperly (2017) demonstrates in his study on political competition and judicial independence there is no statistically significant relationship between FDI and judicial independence in non-democracies.…”

“…A second argument explaining why authoritarian leaders empower independent judiciaries applies the political competition and insurance arguments found in the democratic literature to authoritarian regimes. When non-democratic leaders face real electoral challenges from the opposition they will be more likely to create independent courts in order to minimize the risks and costs of being out of power (Epperly, 2017). When leaders face electoral competition, and risk being removed from office, they are less likely to face punishment when the judiciary is independent (Epperly, 2013(Epperly, , 2017.…”

“…When non-democratic leaders face real electoral challenges from the opposition they will be more likely to create independent courts in order to minimize the risks and costs of being out of power (Epperly, 2017). When leaders face electoral competition, and risk being removed from office, they are less likely to face punishment when the judiciary is independent (Epperly, 2013(Epperly, , 2017. While the insurance argument has explanatory power for authoritarian leaders that face uncertainty about their continued hold on power, it is limited to those cases in which leaders believe they face uncertainty, a condition that is not satisfied in many authoritarian states.…”

“…As Maves & Braithwaite (2013) and Fjelde (2010) show, elected legislatures substantially affect the likelihood of civil war, and Epperly (2013Epperly ( , 2017 finds that political competition is a significant factor in judicial independence. Therefore, I use a measure of Political constraints from Henisz's Political Constraints data, which is an index of the feasibility of policy change.…”