Since judicial independence is a prerequisite for the rule of law, and the rule of law promotes successful political and economic reforms, it is extremely important to know how judicial independence can be established where it has not existed before. In new competitive regimes, which are the focus of this book, incumbent politicians and their coterie may prevent the emergence of an independent judiciary that constrains their behavior. Thus, any account of the origins of the rule of law must examine the relationship between incumbent political elites and the courts.

The literature currently offers two main answers about how we get independent courts. Institutional theories claim that structural insulation of the judiciary (i.e., the existence of formal institutional safeguards) can prevent political interference in judicial decision making. Strategic actor theories argue that independent courts are a by-product of electoral competition – either political incumbents refrain from attempting to pressure the courts, when they face a realistic chance of losing the next election or judges resist any attempts at interference with their decision-making process when they anticipate a turnover in executive/legislative power. The first part of this chapter describes the claims and mechanisms of these theories in greater detail. The second part of the chapter lays out a new strategic actor theory, which I call a theory of strategic pressure. The theory posits that in regimes that are neither consolidated democracies, nor consolidated authoritarian regimes, political competition actually reduces, rather than increases judicial independence. Simply put, weak incumbents need subservient courts more than strong incumbents. The chapter concludes by explaining why the strategic pressure theory applies only to these intermediate cases on the democracy-autocracy regime spectrum and how it could help us understand why independent courts are such a rarity outside Western Europe and North America.

Structural Insulation Theories of Judicial Independence: How to Make it Impossible for Politicians to Pressure the Courts

Accounts of politicians’ inability to pressure the courts into delivering favorable rulings often attribute causal power to institutional configurations. U.S. legal scholars tend to believe that judicial independence is the direct and inevitable result of constitutional guarantees. The U.S. Constitution insulates judges from the political process through constitutional guarantees of life appointments and salaries that may not be diminished during their terms of office, and these provisions basically make it impossible for incumbent politicians to pressure sitting judges (Brutus, Reference Brutus1788; Kaufman, Reference Kaufman1980). In addition, constitutional guarantees can prevent the executive or the legislature from altering the structure of the judiciary in self-serving ways (Russell & O’Brien, Reference O’Brien, Ohkoshi, Russell and O’Brien2001).

Institutional solutions need not be constitutionally enshrined, however. The U.K., Israel and New Zealand, for example, do not have written constitutions, yet boast independent judiciaries (e.g., Shetreet, Reference Shetreet1984; Salzberger & Fenn, Reference Salzberger and Fenn1999; Maitra & Smyth, Reference Maitra and Smyth2004). The important thing is that the judiciary is structurally insulated from the other branches of power – that way incumbent politicians simply do not have leverage over the sitting judges and thus cannot influence the decisions they take (Fiss, Reference Fiss1993). Structural insulation usually refers to judges having security of tenure and control over the judiciary’s budget. Security of tenure means that the judiciary itself controls the process of appointing, remunerating, promoting, disciplining, demoting, and removing judges (Tate & Vallinder, Reference Tate and Vallinder1995; Domingo, Reference Domingo2000; Russell & O’Brien, Reference O’Brien, Ohkoshi, Russell and O’Brien2001; Helmke, Reference Helmke2002). These powers can also be vested in a separate institution (e.g., a Supreme Judicial Council) with a budget and appointment procedures outside the executive’s exclusive influence (Guarnieri, Reference Guarnieri, Russell and O’Brien2001). Finally, a professional court administration is also believed to foster judicial independence because it separates judges from mundane micromanagement tasks (Hall, Stromsen & Hoffman, Reference Hall, Stromsen and Hoffman2003).

As I mentioned in Chapter 1, however, empirical tests of the link between structural insulation and judicial independence lean toward refuting the relationship. Moreover, inconclusive or contradictory empirical tests may be the lesser problem. The main shortcoming of theories that attribute independent judicial output to institutional safeguards against interference is that they underestimate the importance of informal institutions and behavioral regularities. Given the right combination of incentives, informal institutions can trump formal ones (Helmke & Levitsky, Reference Helmke and Levitsky2004). In other words, if the incentive to interfere in judicial decision making is strong enough, politicians can exert pressure on the courts through informal channels, no matter what the institutional configuration of the judiciary is. Numerous studies of Latin American judicial politics have discussed the ineffectiveness of security of tenure guarantees (e.g., Rosenn, Reference Rosenn1987; Helmke Reference Helmke2002; Chavez Reference Chavez2004; Dix Reference Dix2005; Kapiszewski Reference Kapiszewski2007; Finkel Reference Finkel2008). Despite having all the institutional safeguards on paper, Supreme Court justices have regularly been coerced into siding with the executive or resigning. In the postcommunist states, a strong tradition of ex parte communication between judges and litigants and discussion of cases between judges and politicians (often referred to as “telephone law”) has also undermined newly established insulated institutions (Solomon & Foglesong, Reference Solomon and Foglesong2000; Ledeneva, Reference Ledeneva2008).

Weaker versions of the institutional theory posit that more insulated formal institutions are simply more auspicious to decisional judicial independence than others (Russell & O’Brien, Reference O’Brien, Ohkoshi, Russell and O’Brien2001; Chavez, Reference Chavez2004; Rios Figueroa, Reference Rios Figueroa2006; Finkel; Reference Finkel2008; Woods & Hilbink, Reference Woods and Hilbink2009). This may well be the case, but it is then important to keep in mind that the formal institutions are an intervening, rather than a causal variable. Institutions do not appear spontaneously, they have to be created or adopted. So to fully understand the sources of judicial independence, we would need to know why some countries have the “right” kind of formal institutions, while others have the “wrong” kind. Whether the formal institutional setup of the judiciary is constitutionally enshrined or adopted through ordinary legislation, it is always the product of the actions of politicians (either in the legislature or in the executive), so the question becomes: Under what circumstances do politicians decide to offer/introduce independent courts? Currently, the succinct answer is “under intense political competition.” An elaboration follows.

Strategic Actor Theories of Judicial Independence: When Do Politicians Offer Independent Courts?

A large literature looks at the motivations of politicians who consider whether to lean on the courts or to leave them to reach decisions without interference. Some accounts emphasize the benefits that independent courts can bring to incumbents, such as greater policy stability as independent courts prevent incumbents from capriciously changing those policies of their predecessors that do not meet their short-term political interests (e.g., Landes & Posner, Reference Landes and Posner1975; North & Weingast, Reference North and Weingast1989; Ramseyer, Reference Ramseyer1994; Stephenson, Reference Stephenson2003; Hanssen, Reference Hanssen2004; Inclan, Reference Inclan2009) and a blame deflection mechanism through which politicians can unload politically thorny issues onto the courts (Shetreet, Reference Shetreet1984; Salzberger, Reference Salzberger1993). Other accounts focus on the main costs of applying pressure on the courts, such as public backlash against attempts to interfere in judicial decision making (Ferejohn, Reference Ferejohn1999; Vanberg, 2001; Whittington, Reference Whittington2003) and coalition-building resources needed in order to implement an attack on the judiciary (Gely & Spiller, Reference Gely and Spiller1990, Reference Gely1992; Whittington, Reference Whittington2003).

Perhaps most importantly, a growing group of theories, dubbed political insurance theories, look at both sides of the cost-benefit calculus and claim that independent courts are an important insurance policy for politicians who may lose power. Politicians in danger of losing office may fear finding themselves on the receiving end of politicized justice once they are out of power. If this fear is strong enough, it may also cause politicians to refrain from leaning on the courts and to adopt measures (such as strengthening constitutional review) to boost judicial independence. This logic implies that intense political competition, which boosts electoral uncertainty, should encourage incumbents to provide independent courts as an insurance policy against future persecution by the next incumbent. More broadly, incumbents who provide independent courts ensure themselves against being completely powerless once they have let go of their control of the executive and the legislative branch (Ginsburg, Reference Ginsburg2003; Chavez, Reference Chavez2004; Finkel, Reference Finkel2008, etc.).

Ramseyer (Reference Ramseyer1994; Ramseyer & Rasmusen, Reference Ramseyer2003) argues that precisely this logic explains the low level of judicial independence in Japan – the LDP did not fear finding themselves in opposition, so they did not feel the need to offer independent courts. Ginsburg (Reference Ginsburg2003), who actually coined the term political insurance theory, has argued that the insurance calculus explains the emergence of constitutional review in East Asia. Hirschl’s (Reference Hirschl2000) hegemonic preservation thesis makes a similar claim, though his emphasis is on judicial empowerment, rather than on independence. The claim is that politicians adopt institutions that constrain their power in order to entrench their own policies and rules and ensure their continuation beyond their tenure in power. The key causal variable again is political competition (and more specifically, the electoral uncertainty that it triggers).

The insurance hypothesis has, perhaps, become the conventional wisdom argument on the genesis of independent courts in postauthoritarian settings. Case studies on judicial reform dynamics Latin America, Southern Europe, Eastern Europe, and Asia have all pointed to the insurance calculus (Magalhães, Reference Magalhães1999; Skaar, 2003; Chavez, Reference Chavez2004; Dix, Reference Dix2005; Finkel, Reference Finkel2008).

It is important to note, however, that the majority of the political insurance theories focus on constitutional review and on the relationship between politicians and the high courts.¹ These theories also explain politicians’ decision and motivations in implementing institutional changes that are expected to boost judicial independence, by closing some channels for political interference in judicial decision making. Thus, these theories do not have an explicit prediction about how lower courts decide routine cases that are of great interest to incumbent politicians, which is the focus of this study. It is possible that weak incumbents could adopt judicial reforms that appear to strengthen and insulate the judiciary just to feign commitment to the rule of law. Instead, behind the scenes, they could well be continuing to hound the courts for friendly rulings, using informal methods and practices.

The insurance theories are very useful for this study because they provide a plausible hypothesis and raise an important question. If intense political competition has been shown to motivate incumbents to take institutional steps to boost judicial independence (at least at the high court level), does it also motivate incumbents to refrain from pressuring the lower courts during the adjudication of highly salient, but not constitutional, cases? Constitutional cases differ in a very important way from ordinary trial outcomes, in which ordinary legislation is applied to the specific circumstances of a given case. Constitutional cases put constraints on future behavior by politicians, and they are also binding on future adjudication of cases. Thus, they are mainly prospective. Court decisions reached by the lower courts are much less prospective and are grounded in current concerns, especially in civil law countries. The official absence of a precedent doctrine (stare decisis) in civil law countries effectively means that individual trial outcomes in lower court cases have very weak implications beyond the specific circumstances of the individual case. Thus, they hardly constrain future political incumbents. Given this important difference, it bears checking whether the political insurance calculus applies to the behavior of incumbent politicians faced with a credible threat of losing power. Later in this chapter, and in the rest of the book, I argue that it does not, at least in new competitive regimes that are not yet consolidated democracies.

Strategic Actor Theories of Judicial Independence: When Do Judges Resist Pressure From Politicians?

It seems odd to discuss independent courts without discussing the behavior of judges. Perhaps judicial independence can result also when judges simply refuse to yield to pressure from politicians. Widner (Reference Widner2001) offers one theory of judicial independence, which focuses on the behavior of judges, rather than politicians. Widner argues that judicial independence emerged in Eastern and Southern Africa despite economically and politically inauspicious circumstances, because high court judges took up the issue and demanded decisional autonomy from politicians. In addition to simply asserting their independence, activist judges like Tanzanian Chief Justice Francis Nyalali attempted to build up popular support for the judiciary in order to increase the costs associated with applying pressure on the judiciary. Scheppele (Reference Scheppele1999) also suggests that the ability of the Hungarian Constitutional Court to exercise judicial review independently and confidently was in large part a function of the personal leadership of Chief Justice Laszlo Solyom.

These judicial assertiveness theories raise a question about the circumstances under which judges would be so committed to the principle of judicial independence that they would be willing to reject the carrots and bear the sticks that the politicians can use in order to impose their preferences. In fact, given the almost universal view of judicial independence as desirable, if it emerged as a direct result of high court justices’ efforts, judicial independence should be ubiquitous, especially in postauthoritarian regimes. Empirical studies, of course, show that this is far from the case. Helmke (Reference Helmke2002) offers one answer to the question of when judges would stand up to pressure from politicians. In contrast to the dignified guarantors of the rule of law in Widner’s and Scheppele’s accounts, the high court justices in Helmke’s account are more akin to rats abandoning a sinking ship. Like the political insurance theories, Helmke’s strategic defection theory posits that intense electoral competition triggers high court output that does not closely reflect the preferences of incumbent politicians. Helmke argues that when incumbents are weak and on their way out of office, justices have a strategic incentive to resist pressure, and thus produce judicial output that is markedly at odds with the preferences of the incumbents. Justices fear retribution from the next government and therefore disassociate themselves from the incumbents by ruling against them. Helmke (Reference Helmke2002) provides empirical support for her theory on the basis of longitudinal analysis of the output of the Argentine Supreme Court. The decisions of the Georgian, Ukrainian, and Kyrgyz Supreme Courts to side with the opposition during the “colored revolutions” of 2003–5 despite considerable pressure from the incumbents corroborate the strategic defection theory and suggest that it is generalizable beyond Latin America.

Helmke’s theory is an important contender in explaining judicial independence at the highest levels of the judiciary. Can we extrapolate from it, however, and use it to also explain the behavior of lower court judges in applying ordinary legislation, rather than engaging in constitutional interpretation? I argue that we should not for a couple of reasons. First, the judicial actors in Helmke’s account should indeed be afraid of retribution by future incumbents because their decisions are prospective and will have very direct implications for future incumbents. Thus, when they come to power, future incumbents have an incentive to punish disloyal judges that goes beyond simple revenge (which may, of course, be a motivating factor). By contrast, the lower court decisions that I am considering affect future incumbents only indirectly. They might be detrimental to their interests while the future incumbents are still just oppositionists, and they may well prevent the oppositionists from coming to power. But if the oppositionists nonetheless make it into power, these decisions are no longer relevant. If they punish the judges for having taken them, it would be an act of pure retrospective revenge, rather than an act in line with their then current interests. Finally, lower court judges may be more afraid than high court justices of current incumbents than of future incumbents. Lower court judges considering defection would probably face a collective action problem due to information uncertainty – if they are the only ones who have estimated the incumbents as weak, they would bear the brunt of the incumbents’ punishment.

In short, Helmke’s theory informs this analysis, because like the political insurance theories, the strategic defection theory suggests that the intensity of political competition is an important factor that affects the relationship. In addition, the strategic defection theory contributes greatly to our understanding of the complexity of judicial behavior. Like, Helmke, I also find that judges are self-interested actors who decide whether to yield to political pressure or resist it by assessing how a particular action would affect their own careers. This is in sharp contrast to the myth of judges, ideologically committed to protecting and implementing the rule of law. However, I argue that the strategic defection calculus is not directly applicable to the circumstances that I am analyzing – decision making by lower courts in politically salient, but not constitutional cases.

Judicial Independence and Regime Type: Why are Independent Courts a Rarity Outside of The World’s Consolidated Democracies?

Existing theoretical accounts of judicial independence, which link political competition and electoral uncertainty to the provision of independent courts, rarely explicitly consider the effects of the regime context within which political competition takes place. By regime context, I specifically mean the many differences between old consolidated democracies and new unconsolidated democracies. In addition, amidst all the talk about the costs and benefits of independent courts, the benefits that incumbents reap from a subservient judiciary are curiously absent from most theoretical accounts. This might be because these benefits are quite obvious – having a subservient court means you do not lose individual cases, and that is a benefit for all incumbents. However, failing to discuss these benefits is tantamount to assuming that they are a constant rather than a variable. Such an assumption seems unwarranted. The benefits of dependent courts should vary in response to different causal factors, just as the benefits and costs of independent courts vary. This section addresses both issues.

By consolidated democracies, I mean regimes where democracy and its rules are widely perceived to be “the only game in town” (Linz & Stepan, Reference Linz and Stepan1996). Both the elites and the public expect elections to take place regularly into the foreseeable future. There are no viable antisystemic political actors and civilian control over the military is effective and unchallenged. The main political actors accept that they will be involved in an incumbent-opposition relationship into the foreseeable future. All civil and political rights crucial to the functioning of a democratic regime are respected and made meaningful by the existence of appropriate institutions. For example, voting rights are guaranteed as campaign laws are applied strictly yet impartially and vote buying and electoral fraud are nonexistent or minimal; electoral participation rights are meaningful because there is a developed and stable party system (i.e., most parties have extensive networks of grass-roots organizations and compete in successive elections); free speech rights are epitomized by a vibrant independent press. Consolidated democracies display lower levels of uncertainty, which results in risk-averse behavior by politicians and long time horizons.

By contrast, emerging democracies, where democratic institutions have been around for much shorter periods of time, are distinct from consolidated democracies. Not all emerging democracies are, of course, the same. They can be quite different from each other, as they build democratic institutions in distinct order and at varying pace. As a result, many different monickers have been used to describe the regimes that have emerged from the latest democratization waves. In the 1990s, scholars counted more than 550 different “diminished” types of democracies, regimes that displayed some democratic institutions, but not others (Collier & Levitsky, Reference Collier and Levitsky1997). Some of these regimes meet the procedural minima for democracy, but lack most of the institutions that guarantee fair contestation and full participation (Diamond, Reference Diamond1996, Reference Diamond2002). For example, electoral fraud and vote buying may be rampant and hollow out the meaning of free elections. Influence peddling and corruption may pervade the party system. Parties come and go, resulting in high levels of electoral volatility. Parties may lack a strong basis in society, so in effect they may not serve their democratic purpose of aggregating societal interests and representing them in government. The press may be more of a PR organ of powerful interests than an arena for the exercise of free speech. Many such unconsolidated regimes function in a seemingly ad hoc manner. Each election may well be the last. The possibility of democratic breakdown constantly lurks in the background either in the form of a military coup or the ascension of an antisystemic figure to the highest elected office. The main political actors have deep-rooted mistrust in each other. Public trust and support for democracy are often also low (Schmitter, Reference Schmitter1994).

There are two characteristics that all of these new competitive regimes (or “emerging democracies”) share and that I argue reverse the effect that political competition has on the relationship between politicians and courts. The first characteristic is a mixed institutional environment – new, democratic formal institutions coexist with old, authoritarian-era institutions and informal practices. The literature on the topic is vast, and it has addressed questions about the interaction of the new and old institutions and the results that it produces. For example, how do differences in bureaucratic and cultural legacies affect the type of party system that emerges during a democratic transition (Kitschelt, Reference Kitschelt1995; Rose, Reference Rose2001; Hale, Reference Hale2006, etc.)? Or do voters in new democracies behave similarly or, radically differently, to voters in consolidated democracies (Colton, Reference Colton2000; Tucker, Reference Tucker2006, etc.)? What happens when formal institutions of democratic representation function in the context of a weak civil society (e.g., Howard, Reference Howard2003)? Most would probably agree that the mixed institutional environment does make politics in emerging democracies fundamentally different from politics in consolidated democracies, where democracy has been the only game in town for a while.

The second characteristic of the regimes that occupy the spectrum between consolidated democracy and consolidated authoritarianism is the ubiquitous and high level of uncertainty (see, e.g., O’Donnel & Schmitter, Reference O’Donnell and Schmitter1986; Mainwaring, O’Donnell & Valenzuela, Reference Mainwaring, O’Donnell and Valenzuela1992; Bunce, Reference Bunce1993, etc.) This uncertainty, however, goes beyond the “bounded” uncertainty in consolidated democracies, where the outcome of each election is unknown until all the ballots are counted. Rather, it is a much more pervasive, “unbounded” uncertainty, where actors simply do not know whether the regime in its current institutional form would persist in the near or distant future (Schedler, Reference Schedler1998). For example, actors do not know what the rules of competition are going to be like tomorrow, whether the person who garners the most votes would actually be declared the winner of the election, or whether the amount of freedom of the press or freedom of association will be similar from one incumbent administration to the next. This type of “unbounded” and pervasive uncertainty shortens the time horizons of all actors who participate in the politics of a new democratic regime. In other words, actors care much more about the present than about the near future and even less about the distant future. As I will argue later, the shorter time horizons have a profound effect on the behavior of politicians vis-à-vis the courts.

Whatever conceptualization or classification of regimes we use, it is hardly controversial to note that independent courts are the norm in Western Europe, North America, and Australia (i.e., the old consolidated democracies), and they are a rarity outside this region (i.e., in the emerging democracies) (Howard & Carey, Reference Howard and Carey2004). Weak incumbents in consolidated democracies surely also prefer to remain in office and could thus benefit from subservient courts. Why does it seem then that incumbents in consolidated democracies very rarely (if ever) lean on the courts to obtain favorable rulings, whereas in other competitive regimes extrajudicial interference appears to take place more frequently?

Existing political competition theories of judicial independence emphasize electoral uncertainty, but they do not ask whether weak incumbents in old consolidated democracies view a potential loss of power differently than weak incumbents in emerging democracies. If incumbents in emerging democracies have different time horizons and operate in a different institutional context, should we not expect them to engage in a fundamentally different cost-benefit analysis when they decide whether to lean on the courts or not?

I argue that in regimes that are neither consolidated democracies yet, nor consolidated autocracies, the costs of pressuring the courts are lower but the benefits of pressure are higher. At the same time, some of the benefits that incumbents in consolidated democracies purportedly reap from independent courts do not apply in emerging democracies. In other words, in emerging democracies, subservient courts are the norm, rather than the exception, because courts are more valuable to incumbents, and incumbents have an easier time imposing their preferences. Table 2.1 summarizes these differences between consolidated and electoral democracies.

Table 2.1. Cost-benefit analysis by incumbent politicians in different regimes

The costs of pressuring the courts are lower in emerging democracies because incumbents have access to existing mechanisms for pressuring the judiciary, inherited from the authoritarian regime. Even if sweeping institutional reforms of the judiciary take place at the outset of the transition away from authoritarianism, informal channels for pressuring judges are tougher to root out (Solomon & Foglesong, Reference Solomon and Foglesong2000). The persistence of these informal channels lowers the costs of implementing an attack on judicial independence.

In addition, incumbents in newly competitive regimes are probably less fearful of public backlash than incumbents in consolidated democracies. It is likely that postauthoritarian citizens are more accustomed to political interference in judicial affairs than their counterparts in consolidated democracies. However, even if postauthoritarian publics happen to have a lower threshold of tolerance for politicians who attempt to influence judicial output, there is a prior condition for public backlash to result: The electorate should be able to detect the attacks to react to them (Vanberg, 2001).

An active and inquisitive press is crucial to the level of transparency. Yet in postauthoritarian settings, the media are, almost by definition, less experienced in investigative journalism than the media in consolidated democracies (see, e.g., Chua, Reference Chua2002; Waisbord, Reference Chua2002; Hughes & Lawson, Reference Hughes and Lawson2005). In addition, the postauthoritarian media are often themselves the subject of attacks, so they might not cover the incumbents’ transgressions as vigorously as the media in consolidated democracies because of self-censorship (see, e.g., Rodan, Reference Rodan1998; Amayreh, Reference Amayreh1999; Simon, Reference Simon2004). Oligarchic domination of the media market can further decrease the level of transparency (see, e.g., Simon, Reference Simon2004; Hughes & Lawson, Reference Hughes and Lawson2005;). Finally, postauthoritarian publics often distrust the media, which also hinders their ability to expose attacks on judicial independence (see Fossato, Reference Fossato2001).

I argue that the benefits of a subservient judiciary are higher in emerging than in consolidated democracies. This is because under institutionalization of the party system and high electoral volatility are endemic in electoral democracies (Mainwaring & Zoco, Reference Mainwaring and Zoco2007). When parties lack well-developed grass-roots organizations, stable financing, and a party label that transcends the name recognition of the leader, a few court decisions can inflict dramatic damage. For example, one court through one single trial during a crucial moment can destroy even major oligarchic structures and thus severely undercut a party’s campaign. By contrast, it would be much harder (more costly and more time-consuming) for the courts to systematically persecute the hundreds of individuals and companies who finance established parties in consolidated democracies. Similarly, closing down a party newspaper will have much greater impact on that party’s popular approval rating if the newspaper is the only channel for communicating with its supporters. The same court decision will have a smaller effect on established parties that have a dense network of grass-roots organizations through which to energize their base. Many parties in new democracies are little more than vehicles for their leaders to participate in parliamentary elections. Thus, a court decision to remove the party leader from the ballot could destroy the whole party.

Finally, the benefits of independent courts, identified by the literature on judicial independence in consolidated democracies, should be generally lower in emerging democracies. For example, the intertemporal policy control calculus does not work well in the high-uncertainty environment of emerging democracies. The decision to favor increasing future policy control over maximizing current policy control assumes that incumbents care about the future and expect to be in politics for the long haul. However, in emerging democracies, where the rules of the game are not firmly established, incumbents will be more likely to prefer to use the courts to strengthen their position and thus avoid yielding power altogether. For them, the trade-off between current and future policy control may be a moot point.

In addition, it is equally unwarranted to assume that interest groups in emerging democracies would value policy stability over the short-term benefits of short-lived policies as interest groups in consolidated democracies supposedly do. In fact, if Hellman (Reference Hellman1998) is correct about the power of the initial winners of the postcommunist transformation, presupposing that interest groups in postauthoritarian settings would value long-term policy stability is simply empirically wrong (Hellman, Reference Hellman1998). Thus, the mechanism identified by Landes and Posner (Reference Landes and Posner1975), in which interest groups basically encourage politicians to provide independent courts by paying more for current policy proposals, does not apply to emerging democracies.

A benefit of independent courts, which seems more relevant to emerging rather than to consolidated democracies, is protection from selective prosecution. This benefit also depends on an intertemporal calculus, but instead of policy control, incumbents give up current opportunities to harass opponents through the courts, in exchange for insurance that they will not become the subject of harassment once they find themselves in opposition. However, the same caveat applies as in the policy stability hypothesis – incumbents have to expect to be in politics for the long haul to credibly commit to such an arrangement. The deep-seated mistrust of other political actors, which characterizes many emerging democracies, however, undermines the likelihood of credible commitment. Moreover, alternative methods for obtaining immunity from prosecution, beside independent courts, often exist. For example, incumbents can collect enough compromising material on the opposition, which can serve as a guarantee against prosecution once they are out of office (see Darden, Reference Darden2001).

Testing to see whether these propositions specifically account for the obvious contrast between the prevalence of independent courts in the old democracies and their scarcity beyond that regime group is beyond the scope of this book. It would require a comparison between an old consolidated democracy and a new electoral regime, like those in Russia and Ukraine. However, this regime context provides an explanation as to why political competition and electoral uncertainty affect incumbents in emerging democracies in very different ways than they do incumbents in consolidated democracies.

Political Competition and Judicial Independence in Emerging Democracies – a Strategic Pressure Theory

Contrary to the conventional wisdom, I argue that in newly competitive regimes, political competition magnifies the benefits of subservient courts to incumbents, thus reducing rather than increasing judicial independence. According to this theory of strategic pressure, political competition fosters the politicization of justice and dependent courts through three distinct mechanisms.

Mechanism 1:

Intense political competition dramatically increases the benefits that incumbents in emerging democracies can derive from pressuring the courts and as a result creates a strong incentive for incumbents to pressure the judiciary.

When incumbents are weak, they can use subservient courts as campaign instruments to maximize their reelection odds by securing favorable rulings in politically salient issue areas, such as campaign finance, electoral registration, redistricting, or polling station organization. Moreover, weak incumbents can boost their chances of retaining power by using dependent courts as a weapon against their main competitors. For example, a subservient judiciary can severely undermine the opposition by prosecuting its financial backers for tax evasion or fraud, siding with municipal authorities to deny meeting permits for opposition rallies or prosecuting opposition activists on trumped up hooliganism or vandalism charges.

By contrast, strong incumbents do not need subservient courts as much as weak incumbents do. If they are electorally secure (i.e., their position in power is not threatened by an electorally viable opposition), they do not need to use the courts to fight off the opposition’s advance. Moreover, strong incumbents in emerging democracies (and this is probably even more true in authoritarian regimes) may have other instruments at their disposal to achieve their policy or political goals, apart from subservient courts. A court decision that does not conform to their preferences can be “fixed” or circumvented through other means. For example, instead of fighting electoral registration battles in the courts tooth and nail, the Putin regime (even more electorally secure after the 2003 Duma elections) changed the whole party registration system through legislation and effectively killed the democratic parties – Yabloko and Union of Right Forces (SPS)– in time for the 2007 elections.²

Finally, political competition, manifested in significant ideological distance between the incumbents and the opposition, should boost the incumbents’ desire to hold on to power. After all, if future cooperation between the incumbents and the opposition is not in the realm of possibility, then incumbents should be less willing to cede power. This dynamic also creates an incentive for incumbents to pressure the courts as a way of increasing the probability of remaining in power.

Mechanism 2:

In emerging democracies, political competition does not increase the costs associated with pressuring the courts.

The political resources incumbents need to expend to implement an attack on judicial independence are unrelated to electoral uncertainty. If an attack is construed as passing legislation aimed at curtailing the insulation of the judiciary from the other branches, then weak incumbents would indeed have a harder time implementing or credibly threatening the judiciary with such an attack. However, incumbents can effectively influence judicial output (especially at the district court, rather than the Supreme Court level) through informal and ad hoc measures, such as budget cuts, insufficient appropriations, withholding of benefits that judges are entitled to by law, and simply failing to comply with individual rulings (Solomon & Foglesong, Reference Solomon and Foglesong2000). The police and the tax authorities, who are usually controlled by the executive, can also be used to harass individual judges. These are some examples of legal informal mechanisms through which the executive can coerce the judiciary into delivering favorable rulings. Threats and violence can also work quite effectively. None of these mechanisms requires building broad consensus among the political elites, so intense political competition is not likely to make them more costly.

Mechanism 3:

In emerging democracies, political competition produces a politicization of justice effect.

The term “politicization of justice” is meant to be the antonym of the “judicialization of politics” concept. The judicialization of politics literature, which examines (and largely criticizes) the trend toward the insertion of the courts in the thick and thin of political life focuses exclusively on consolidated democracies. That literature raises a concern about judges becoming too powerful and usurping responsibilities that should belong to elected politicians. In other words, the issue in consolidated democracies is too much judicial independence, rather than too little (Stone Sweet, Reference Stone Sweet2000; Guarnieri & Pederzoli, Reference Guarnieri and Pederzoli2002; Hirschl, Reference Hirschl2004).

By contrast, politicization of justice occurs when the courts become increasingly embroiled in politics, but their output is dependent on the preferences of incumbent politicians. During a period of intense political competition, a larger set of cases decided by the courts affects the incumbents’ probability of retaining power. As a consequence, the incumbents identify a larger set of cases as salient and important for their reelection chances. This heightened attention to the output of the courts, in turn, leads to the politicization of a larger set of cases.

Political competition thus creates a strategic incentive for weak incumbents not only to try really hard to win each case they are involved in but also to attempt to prevent the opposition from winning cases that it has a stake in. By using the courts as attack dogs, incumbents can hope to weaken their competitors or signal strength and thus hurt the opposition’s ability to recruit supporters. In other words, weak incumbents will choose to interfere in cases that would seem trivial to strong incumbents. For example, weak incumbents may meddle in business disputes involving companies that support the opposition and pressure the judges to deliver rulings that hurt the opposition’s financiers. Or, a dispute associated with municipal elections may suddenly become a high-stakes affair for a weak incumbent who is afraid of ceding any ground to the opposition.

The greater the number of cases that become politicized, the greater the number of judges who become subject to pressure. And the more judges are affected, the greater the collective action problem that they face if they wish to resist. In other words, despite the weakness of the incumbents, the “strategic defection” mechanism, identified by Helmke (Reference Helmke2002), is less likely to work at the district court level. Rather, a strategic pressure mechanism results in a higher probability that judges will yield to incumbents’ demands and deliver biased rulings, thus lowering the overall level of independent judicial output.³

Regime Age and Independent Courts

Time is clearly an important variable in the model I am proposing here. How long can a new regime be called “emerging”? Can regimes hover between consolidated democracy and consolidated authoritarianism forever (or at least for a long time)? There is a vast and still growing body of literature on regime change that suggests that, indeed, many postauthoritarian regimes appear to be stuck in transit to the democracy that they purportedly set out to build (see, e.g., Schmitter, Reference Schmitter1994; Carothers, Reference Carothers2002). Or they backslide so significantly in terms of civil and political rights that it no longer makes sense to call them democracies, but they cannot quite consolidate an authoritarian regime either. These regimes have been called competitive authoritarian regimes (Levitsky & Way, Reference Levitsky and Way2010).

If we accept the existence of a democracy-autocracy spectrum, rather than a scale or a dichotomy, then we should probably accept that there will not be a sharp border between an unconsolidated democracy and a consolidated one or between a competitive authoritarian regime and a consolidated authoritarian regime. Most agree, however, that the differences between these regime types are meaningful, even if they are difficult to categorize with great accuracy. There are a number of projects that seek to systematize these differences and categorize regimes accordingly – Freedom House, the World Bank’s Database of Political Institutions and Governance Indicators, and Polity are the major ones that are widely used in the literature.

To determine whether a regime has slid back into consolidated authoritarianism, regime classifiers look at whether political and civil rights have been eroded to the point that we cannot argue that elections are meaningfully contested. If political incumbents consolidate power to the extent that they can abolish elections for important offices altogether, it is an easy call – the country has reverted to consolidated authoritarianism. The border between an emerging democracy and a consolidated democracy seems more challenging to pinpoint. How can we tell that democracy has become the “only game in town”? I have argued that emerging democracies are characterized mainly by a mixed democratic-authoritarian institutional environment and a high level of uncertainty about the sustainability of the regime in its current form. Thus, countries inch closer to democratic consolidation as leftover authoritarian informal institutions and practices start dissipating with time. For example, informal channels of voter coercion give way to greater respect for electoral laws; or civil society becomes stronger and its groups start aggregating interests and communicating them to elected officials. I expect that the “unbounded” uncertainty of the transition stage slowly decreases the longer the main rules and institutions that structure the democratic regime persist without major changes. If, however, change is the name of the game, rather than continuity, I argue that the “emerging democracy” stage would be longer and that consolidation would be delayed. Uncertainty would remain high and time horizons short if major rules change often (e.g., the Constitution is frequently amended) or important institutions come and go (e.g., electoral system switches between PR and majoritarian models) or central players enter and exit politics frequently (e.g., electoral volatility is extremely high with new parties winning majority and then disappearing after one term).

Determining when a regime no longer qualifies as an “emerging democracy” matters to our discussion because the strategic pressure theory applies only under these circumstances. If a regime exits the “emerging democracy” category, then the strategic pressure theory stops being applicable. If the regime morphs into a consolidated democracy, then we can expect that the traditional political competition theories of judicial independence would start to apply – intense political competition would motivate politicians to refrain from leaning on the courts, whereas strong incumbents would occasionally impose their preferences on judicial output. If the regime backslides into full-blown authoritarianism, then we should look to theories of judicial behavior in authoritarian regimes to explain the relationship between political incumbents and judges (see, e.g., Moustafa, Reference Moustafa2007; Ginsburg & Moustafa, Reference Ginsburg and Moustafa2008).

Conclusion

This chapter argued that traditional political competition theories of judicial independence have important boundary conditions. First, they are better at explaining the variation in judicial independence in consolidated democracies than in other competitive regimes. In the former set of regimes, political competition increases the benefits that incumbents can reap from independent courts and boosts the costs of pressuring the judiciary. As a result, political competition promotes judicial independence, in consolidated democracies. Second, they are better at explaining judicial independence at the level of the high courts, than at the level of the lower courts, which in civil law countries do not adjudicate constitutional disputes.

I argued that in emerging democracies incumbents receive a higher payoff from dependent courts and incur lower costs if they pressure the judiciary. That is why dependent courts are the norm, rather than the exception in emerging democracies. The chapter presented a strategic pressure theory, which posits that political competition hinders the establishment of independent courts in such regimes because it creates a stronger incentive for incumbent politicians to interfere in judicial decision making. This inverse probabilistic relationship between political competition and judicial independence results from the fact that incumbents who face a realistic chance of losing power can reap higher benefits from dependent courts. Such weak incumbents also try to impose their preferences on a larger set of cases, which further reduces the level of judicial independence. Strong incumbents, by contrast, have the luxury of being more relaxed about judicial output, which might give some leeway to the judiciary to decide cases free of extrajudicial pressures. As a result, a higher level of judicial independence may result from the strong incumbents’ indifference.