Democracy, Electoral Systems, and Judicial Empowerment in Developing Countries

2. The Theoretical Framework

32 chapter 2 The Theoretical Framework In chapter 1, we presented two empirical trends. These trends demonstrated significant variation in both de jure judicial review (DJJR) across new democracies in the developing world and de facto judicial independence (DFJI) among developing country democracies. The observed variation in DJJR across new democracies leads to the following puzzle: why (and when) are governments in some new democracies in the developing world less likely to constitutionally adopt full judicial review in the initial post– transition years? The first research objective in this chapter is to address this question. We present a theoretical framework that identifies the conditions under which political elites in new democracies across the developing world will choose to empower their courts with de jure judicial review powers. As numerous scholars have noted however, de jure rules are neither necessary nor sufficient for de facto independence (e.g., Rosenn 1987; Widner 2001; Vanberg 2008; Chavez 2008; Carrubba 2009), and their presence can be poorly correlated (Feld and Voigt 2003; Herron and Randazzo 2003; Rios-Figueroa and Staton 2009). Political incumbents can choose to limit their support for judicial institutions merely to the adoption of “parchment rules” and use the many powers at their disposal to handicap the courts ability to exercise their powers in practice. Scholars have identified the fear of losing office when competition is high as one of the strongest political incentives to support DFJI. Yet, as figure 1.4 shows, this fear was not sufficient to build political support for DFJI in 44 percent of 103 countries examined over 20 years where governments chose instead to reduce judicial independence when their time horizons in office was low. This raises a second puzzle—why do low time horizons in office provide incentives to governments in some developing country democracies to protect and enhance de facto judicial independence, but induces governments in others to curtail de facto judicial autonomy? In this chapter, we also develop and present a theo- The Theoretical Framework 33 retical framework to answer this second puzzle. The answers to these questions should help us further our understanding of when (1) incumbents in new democracies in developing states resist the adoption of full judicial review authority,1 and (2) incumbents in “newly consolidated” and established democracies actually succeed in maintaining judicial independence. In order to answer these questions, this chapter is organized in the following way. We first build on the detailed discussion of extant studies presented in chapter 1 to identify some key missing elements from current explanations. Next, we discuss how we add to this literature and present our argument that the decision to adopt judicial review powers in new democracies is a function of the degree of legislative concentration and the level of public trust in the judiciary. This argument generates our first hypothesis, which we test in subsequent chapters. We then focus our analysis on de facto judicial independence. We again begin by building on the theoretical foundations of current studies discussed in chapter 1 to identify important missing factors and discuss the additional leverage our theoretical framework brings to this literature. We then present our theoretical argument that incumbents in more particularistic electoral systems increase de facto judicial independence in the context of low time horizons in office, but those in party-centered electoral systems reduce the de facto independence of their courts under similar conditions. We then derive our testable hypothesis and conclude. Judicial Review in New Democracies: Theoretical Arguments As discussed in chapter 1, strategic theories of judicial review argue that political elites choose to adopt de jure review powers as the optimal solution to one of many political problems they may face. These political problems could stem from political fragmentation in the legislature (Ramseyer 1994; Stephenson 2003), electoral uncertainty during transition to democracy (Ginsburg 2003; Finkel 2005, 2008; Magaloni 2006) or after it (Hirschl 2004), the need to deflect blame for unpopular policy decisions (Fiorina 1986; Weaver 1986; Salzberger 1993), the need to enhance the political legitimacy of government policy (Ishiyama Smithey and Smithey 2002; Whittington 2005), or the need for political posturing to increase political and electoral attractiveness (Fox and Stephenson 2011). All these theories implicitly assume that politicians trust that a judiciary empowered with judi- 34 democracy, electoral systems, and judicial empowerment cial review powers that allow it to overturn legislative statutes and executive decrees and intervene much more directly in policy-making, nevertheless chooses...