Rethinking Judicial Independence in Democracy and Autocracy

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2020

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Abstract

Building independent courts is a commitment by political leaders that they are willing to tie their hands, restrain their (often arbitrary) power, and respect judicial decisions even if the courts rule against them. But if political leaders are rational, why do they persist in their respectful behavior towards independent courts even when such courts may prove adverse to themselves? In other words, how can judicial independence be credibly maintained without being eroded by political leaders? In this dissertation, I seek to answer this important but underexplored question in comparative judicial politics by examining the political and economic conditions necessary to maintain judicial independence in autocracies and democracies.

In Chapter 2, I build a theory regarding the methods by which autocrats credibly still maintain judicial independence, given the lack of formal institutions capable of constraining their ever-present chance of reneging. I develop a causal mechanism by which a regime’s economic reliance on foreign direct investment (FDI) and autocrats’ concern about their reputation interact to create strong and ongoing incentives to maintain judicial independence as a property rights assurance for foreign investors. Using panel data covering a large sample of authoritarian countries during the post-Cold War period, I find quantitative evidence of my theoretical expectation in Chapter 3, and demonstrate that a regime’s past reliance on FDI is positively and significantly associated with the current level of judicial independence. My empirical analysis further indicates that the theorized effect is restricted to the economic dimension of judicial independence, in both the medium term and the long term, and that the effect is also contingent on the type of authoritarian regime that is present in the country.

In Chapter 4, I present a modified version of the so-called insurance theory and claim that the impact of political competition on judicial independence in democracies fits a slight modification I suggest to this theory. Adopting insights from party politics literature, I argue that, beyond mere electoral closeness, the presence of “robust” political competition is conducive to generating the incumbent’s credible perceptions of threats of the loss of his power and thus this form of competition is more relevant for anchoring the logic of the insurance theory. To illustrate the significance of robust political competition and the conditions thereof, I conduct a qualitative case study of South Korea and the Philippines, which differ in the level of judicial independence despite their similar degree of electoral closeness after democratization. Drawing on each country’s political history, descriptive data, and the specific episodes of judicial independence in both countries, I find that the existence of robust political competition, backed by an institutionalized party system and a stable set of robust actors, has allowed South Korea to develop judicial independence consistent with the insurance logic. By contrast, the absence of robust political competition in the Philippines, which is attributable to a fluidic and clientelistic party system with a lack of robust opposition, has discouraged incumbents from taking advantage of judicial independence as a form of political insurance for themselves.

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Cho, Moohyung (2020). Rethinking Judicial Independence in Democracy and Autocracy. Dissertation, Duke University. Retrieved from https://hdl.handle.net/10161/21523.

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