by Albert Hahn
I contend that explaining judicial independence—considered the fundamental question of comparative law and politics—requires a perspective that spans the democracy/autocracy divide. Rather than seeking separate explanations in each regime context, in The Political Foundations of Judicial Independence in Dictatorship and Democracy, I argue that political competition is a salient factor in determining levels of de facto judicial independence across regime type, and in autocracies a factor of far greater import.
This is because a full “insurance” account of independence requires looking not only at the likelihood that those in power might lose elections, but also the variable risks associated with such an outcome — risks that are far higher for autocrats. First demonstrating that courts can and do provide insurance to former leaders, I then show via exhaustive cross-national analyses that competition’s effects are far higher in autocratic regimes, providing the first evidence for the causal nature of the relationship.
I argue that these findings differ from existing case-study research because in democratic regimes, a lack of political competition means that incumbents target the de jure independence of courts. This is illustrated via an in-depth case study of the Hungarian Constitutional Court after the country’s 2010 “constitutional coup,” and then tested globally. Blending formal theory, observational and instrumental variables models, and elite interviews of leading Hungarian legal scholars and judges, the book offers a new framework for understanding judicial independence that integrates explanations of both de jure and de facto independence in both democratic and autocratic regimes. https://www.tandfonline.com/doi/full/10.1080/13510347.2020.1817898
available for purchase via Oxford University Press and Indiebound
Reviewed in Democratization and the Law and Politics Book Review
Praise for The Political Foundations of Judicial Independence in Dictatorship and Democracy:
One of our best young scholars of law and courts has produced a superb account of judicial independence in both democracies and autocracies. Methodologically rigorous and tightly argued, this is an essential contribution to our understanding of the politics of judicial empowerment.
— Tom Ginsburg, Leo Spitz Professor of International Law, Professor of Political Science, University of Chicago
Brad Epperly’s book encourages us to rethink political science’s central theory of judicial independence. By carefully analyzing both the logical and empirical foundations of the insurance model of judicial independence, Epperly provides a number of fresh insights into the conditions under which dictators and democrats opt for judicial independence. Most importantly, Epperly’s argument highlights how the stakes of leaving office shape leaders’ preferences for judicial independence and thus illuminates the seeming paradox of why dictators facing competitive elections are especially prone to insulate their judiciaries. This book should become standard reading for anyone interested in comparative courts and autocratic institutions.
— Gretchen Helmke, Professor of Political Science, University of Rochester
Perceptions that leaders will step down after losing elections is broadly understood to be a key driver of judicial independence. Judicial independence is thus a feature of democracy. Brad Epperly’s account suggests that authoritarian leaders also construct independent courts when they perceive increases in political competition. Epperly’s work brings together careful theorizing, rigorous empirical analysis and attention to particular cases to offer a novel and provocative account of the political origins of judicial independence.
— Jeffrey Staton, Professor of Political Science, Director of the Center for the Study of Law, Politics, and Economics, Emory University
Professor Epperly examines and expands insurance theory in a new and novel way by proposing that the level of electoral competition conditions the propositions derived from insurance theory in both democratic and authoritarian regimes… This book is important for bridging the divide between the findings of quantitative studies and the finding of qualitative case studies of judicial independence. Professor Epperly’s book is an important contribution to comparative judicial politics, comparative institutionalism, international legal studies, and international relations research, as well as of great relevance for students of neo-authoritarian research.
— Lee Walker, Associate Professor of Political Science, University of North Texas