Integrating De Jure Independence

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.

The Expected Utility of Insurance

This chapter offers a new version of popular “insurance” models of judicial independence, in which the competitiveness of the electoral arena induces leaders to prefer more independent courts, as a means of offering policy and personal security if they lose power. That is, paying the “premium” of increased constraints on behavior imposed by independent courts now for the insurance of protection in the future if out of office. The crux of the argument is that the risks associated with losing power in autocratic regimes are greater than in democracies, and therefore competition should be more salient in dictatorships than democracies. The stakes are higher because autocratic power means access to wealth and state resources in a way rarely equaled in democratic regimes, and more importantly the likelihood of being punished after leaving office is greater for former autocrats. Judiciaries exercising greater independence, however, can minimize the risks of being a former leader, and the chapter leverages this finding to develop an expected utility model, the empirical implication of which is higher salience of competition—when present—in autocracies. Unlike previous theories of how competition affects independence, this model integrates both the likelihood of losing office and the risks associated with such an outcome, and thus allows us to examine the phenomena across the democracy/dictatorship divide.

The Mechanisms of Insurance

This chapter assesses the descriptive accuracy of two key mechanisms fundamental to the insurance framework, which previous research treated as assumptions rather than mechanisms requiring analysis. First, for the insurance logic to hold, new leaders must not run roughshod over the judiciary: if new leaders violate judicial independence, then the insurance function it offers fails to hold, and therefore we should not expect competition to incentivize judicial independence since its costs would outweigh its benefits. This chapter shows that, all else equal, new leaders across regime type do not systematically violate judicial independence. This established, it addresses the second key mechanism: whether independent courts do in fact provide insurance to former leaders. Using data on post-tenure punishment, the chapter shows that independence is strongly associated with security after power across regime type, and that further empirical implications of the argument corroborate this important mechanism of the insurance model of judicial independence in both democracy and dictatorship.

Conclusion

As a conclusion, Chapter 5 revisits the theoretical arguments presented in Chapters 1 and 4, as well as the empirical examination thereof in Chapters 2–4. To illustrate the empirical implications and results, it reproduces a number of key figures, discussing not only their importance but also relationship to one another. It then discusses the importance of the book’s results for the study of comparative law and courts, as well as what the results suggest for both domestic and foreign policy.

Examining Insurance across Regime Type

Chapter 3 consists of direct tests of the empirical implications of the theoretical model forwarded in Chapter 1. It begins by revisiting the logic of insurance, specifically what it is about the electoral environment that should induce leaders to maintain or further judicial independence, addressing issues of concepts and measures at length. Panel models show that competition is strongly associated with de facto judicial independence in autocratic regimes, but less so in democratic. These results hold up not only accounting for potential confounding variables, but also against numerous competing explanations and further robustness checks. Recognizing that these analyses are purely observational, it argues for the appropriateness of two instruments of competition. Two-stage least squares models show the effectiveness of these instruments of competition, and offer the first attempt to assess the relationship between competition and independence in a causal manner. The results are strongly supportive of the theory of autocratic insurance, but far less so for democratic: the relationship between competition and independence in democracies, weak already in the linear models, becomes non-existent in the instrumental variables analysis.

Introduction

Since Federalist No. 78, the notion of the weakness of the judiciary vis-à-vis the executive and legislative branches has been widely accepted. Having “neither force nor will, but merely judgment,” Hamilton famously argued that a judiciary is unable to realize even mere judgment without the aid of the branches wielding the powers of the sword and purse. While focused primarily on the relative risks posed to individual liberty by the three branches of government, in reframing Montesquieu’s famous dictum in ...