THE POLITICAL FOUNDATIONS OF JUDICIAL INDEPENDENCE IN DICTATORSHIP AND DEMOCRACY, by Brad Epperly. Oxford, UK: Oxford University Press, 2019. 203pp. Hardcover $80.00. ISBN: 918-0-19-884502-7.
Reviewed by Jay N. Krehbiel, Department of Political Science, West Virginia University. Email: jay.krehbiel@mail.wvu.edu.
Perhaps no subject in the study of judicial politics has attracted as much attention and concern as judicial independence. In his book, THE POLITICAL FOUNDATIONS OF JUDICIAL INDEPENDENCE IN DICTATORSHIP AND DEMOCRACY, Brad Epperly provides a timely contribution to this enduring puzzle with a thoughtfully crafted theoretical and empirical update to one of the literature’s most prominent theories, the insurance model. Epperly argues that there is strong empirical evidence supporting the insurance model and that its framework provides insight into variation in judicial independence across both regime type and form of judicial independence. He combines a simple and insightful formal model with both quantitative and qualitative analyses to evaluate his own claims alongside potential rival or alternative explanations. In doing so, the book will appeal both to scholars of comparative judicial politics and those looking for an example of a well-constructed comparative politics research design.
The book can be divided roughly into three components, each one corresponding to a heretofore unanswered question the author seeks to address. The first, contained in Chapter 1, offers a review of the political insurance literature followed by an expected utility model that identifies a key empirical implication. The second, addressed in Chapter 2, provides novel empirical support for previously untested assumptions and mechanisms underlying the insurance model. These serve as the framework for Epperly’s argument. The third, found in Chapters 3 and 4, presents meticulous empirical analyses investigating the impact of political competition on judicial independence along with a mixed method examination of the argument’s differing implications for de jure and de facto judicial independence. This organization of the book serves the reader well as the chapters follow a step-by-step approach to achieve the book’s overarching goal of convincing the reader of the insurance model’s utility as an explanation for the establishment and maintenance of an independent judiciary in both democracies and dictatorships.
Chapter 1 presents the core of the book’s argument that the incentive for judicial independence induced by electoral competition, while present in democracies, is stronger in authoritarian countries. Getting to the logic for this counterintuitive argument first requires walking the reader through the extant literature on theories of judicial independence like the insurance model and the scholarship addressing the conceptualization of democracies vis-à-vis dictatorships. Epperly does this with a methodologically-driven advocacy for dichotomizing between the two regime types. The chapter then progresses to provide a closer look at the literature on the nature of competition in authoritarian regimes, as such contexts take center stage in the rest of the chapter as the author lays out his argument. [*84]
Epperly’s argument is at once simple and powerful: the cost, both political and personal, of losing power is likely greater for authoritarian leaders than their democratic counterparts. While former leaders of both regime types can benefit from the insurance independent courts provide with respect to property and political rights, it is the protection afforded by courts from personal, targeted punishment that particularly drives the argument. As Epperly succinctly puts it, “it is a lot risker to be a former leader of a non-democracy” (p. 33). The data the author brings to bear on the matter back this up, with former autocratic leaders seven times likelier than their democratic counterparts to be punished after leaving office (e.g. exiled, imprisoned, or killed). As a result of this increased risk for ex-dictators, as well as the inherently greater uncertainty in the likelihood of electoral loss being realized, authoritarians confronted with political competition should be particularly attuned to the benefit of an independent judiciary. An expected utility model formalizes this logic for both autocratic and democratic leaders and then uses a combination of intuitive assertions and point estimates from the author’s previous work to focus on the parameters of most interest, the degree of judicial independence and the likelihood of losing office. The resulting empirical implications form the basis for the subsequent chapters.
Before testing the insurance model across regime type, however, Epperly first devotes Chapter 2 to testing two of the mechanisms underlying the insurance model: that judicial independence can withstand regime turnover and that independent courts actually provide former leaders insurance against political and personal risk. The analysis of these underlying claims of the insurance model allows the author to rebuff critiques of the insurance account, and in so doing speak to the thoroughness of the theoretical and empirical work in the book. Using state of the art measures from the Varieties of Democracy (V-Dem) dataset and Linzer and Staton’s (2015) measure of judicial independence, Epperly shows that regime turnover lacks a substantively meaningful effect on judicial independence whether it occurs in a democracy, non-democracy, or from a democracy to autocracy. While in effect presenting a series of null results, Epperly dedicates considerable methodological justification for his empirical approach, and to good effect as it makes a compelling case for the validity of the “non”-findings. Particularly for those who have chafed at the lack of serious consideration or discussion of null results, this presentation may well serve as a welcome application of this often-overlooked part of the methodological and research design toolkit.
The second half of Chapter 2 provides an empirical test of the insurance model’s fundamental assumption: does an independent judiciary actually provide insurance? To do so, Epperly examines the fate of leaders after they leave office, contending that “a leader’s post-tenure fate is the fundamental test of the insurance assumption” (p. 72). While a considerable divergence from the standard theoretical conceptualization of political insurance as continuity of policies, Epperly reasonably surmises that one’s personal health and safety trump concerns for the continuation of particular policies, and as such provides a more direct (and empirically feasible) test of the insurance mechanism. The subsequent empirical models test the resulting hypothesis that higher levels of judicial independence will correspond to a lower likelihood of a leader being punished (exiled, executive, or imprisoned) after leaving office. The findings, as anticipated by the insurance model, reveal a strong relationship between judicial independence and post-tenure punishment for leaders. As is the case for the empirical analyses found throughout [*85] the book, Epperly further parses the data to include control variables (e.g. democracy and economic growth) and considers additional empirical implications and alternative model specifications (e.g. the partisanship of the succeeding leader).
With Chapter 2 providing empirical support for the foundational mechanisms of the insurance model, it is in Chapter 3 that Epperly comes to the business of evaluating the book’s central claim that the effect of political competition on judicial independence is greater in autocracies than democracies. Again demonstrating the author’s thoughtful approach to measurement and research design, the chapter begins with an extensive discussion of challenges that scholars face when dealing with a concept difficult to validly measure like political competition. Arguing that measures reliant solely on the relative distribution of seats or votes in the lower house of the national legislature insufficiently capture the full concept, Epperly adopts the measure developed by Henisz (2000, 2002) that captures the “viability of policy change at any given point in time” (p. 97). Armed with this measure, which accounts for factors like the number of political veto points and the fragmentation of legislative parties, Epperly sets out to analyze the relationship between competition and judicial independence with the expectation that competition’s effect will be greater for autocracies than democracies.
The results of this analysis are clear both in their presentation and substantive interpretation: competition matters for judicial independence, especially in non-democracies. Not satisfied with simply establishing the conditional relationship between regime type and political competition, Epperly is again one step ahead of the critical reader as he pushes the data to test logical extensions of his theory. Alternative explanations for the results are carefully considered on their own terms. Concerned that the results are driven by instances of regime breakdown? A robustness analysis excluding the years immediately preceding a regime transition indicate this is not the case. Or perhaps you’re concerned that a country’s legal origins, economic conditions or length of autocratic tenure might explain the relationship between competition, regime type and judicial independence? The author has thought of those too and additional analyses are included to address your concern. Even multiple imputation for missing data and an instrumental variable analysis—a bold endeavor given the challenge of meeting the exclusion restriction—are included to lend further credence to the book’s central empirical finding.
While Chapter 3 presents the supporting evidence for the book’s central claim, I found Chapter 4 to be perhaps the most interesting part of the book as Epperly once more extends his theoretical and empirical accounts to consider how competition’s impact on judicial independence manifests differently in non-democracies and democracies. The idea of incorporating the distinction between de jure and de facto judicial independence into his theoretical framework nicely links the insurance model to the extensive judicial legitimacy literature, enriching both the theoretical and empirical scope of the book. The argument is that while attacks against de facto independence in a democracy risk resulting in an electoral backlash, undermining de jure protections allows governments to claim they are “playing by the rules” and thereby limit the harm of any subsequent public censure. In contrast, autocrats will face much less, if any, meaningful domestic or international [*86] punishment for violating the de facto independence of its judiciary. As a result, Epperly contends, we should observe a weakening of de jure independence when political competition is low in democracies, whereas in autocracies low levels of political competition should correspond to attacks on de facto independence. It is a clever synthesis of the insurance and legitimacy literatures that again demonstrates the author’s willingness to be guided by theory.
To evaluate these expectations, Epperly employs a mixed method approach combining a qualitative analysis of the Hungarian case and a quantitative analysis of the relationship between changes in political competition and changes in either de facto or de jure judicial independence. The discussion of the Hungarian experience is well written and engaging as Epperly skillfully combines interviews of legal elites with an analysis of the political conditions and subsequent events of the last decade. As becomes evident from Epperly’s telling, the attacks—cloaked as constitutional reforms—over the past decade by Viktor Orban’s government against the judiciary’s de jure independence were successful in no small part due to weak competition put up by an unpopular and incompetent political opposition. As the country perhaps most closely associated with “illiberal” democracy and attacks on the rule of law, the analysis provided in this part of the chapter is in itself a valuable contribution.
Although perhaps the briefest quantitative piece of the book, the cross-national analysis of the relationship between changes in competition and changes in the two forms of judicial independence merits mention. Using a de jure measure based on the United Nations Principles on the Independence of the Judiciary (along with measures introduced in previous chapters), the results suggest that competition’s effect on judicial independence depends both on regime type and the distinction between de jure and de facto independence. The analysis and findings are admittedly not the most convincing in the book, although that is as much as anything a testament to the quality of the preceding analyses. For example, the provisions comprising the de jure independence measure do not appear to address the degree of politicization in the appointment process for high court judges, something scholars have broadly viewed as a key component of de jure protections for independence and a target of the reforms described in the Hungarian case. Similarly, the use of change in competition, rather than the state of political competition, makes one wonder whether a similar conceptualization might yield insights in the previous analyses. That said, it is a reflection of the chapter’s ambition that I found myself so critically engaged with both the argument and empirics.
As with any work as expansive and thought provoking as this, there were points at which I found myself conducting an internal debate with the author. For example, one might imagine that incumbents who have committed crimes while in office would prefer a weakened judiciary over an independent one. Such a counterargument could plausibly be addressed empirically by including a measure of corruption, which likely correlates not only with post-tenure punishment but also judicial independence and regime type. Along similar lines, I could not help but wonder about how the mechanism for autocratic insurance might vary in strength across different types (e.g. military, personalist, single party, etc.) of autocratic regimes. And I am not fully convinced of the contention that a government can undermine de jure independence without compromising the [*87] judiciary’s de facto independence (of course the opposite is uncontroversial) insofar that past research has linked attempts at weakening de jure independence with more deferential decision making. But in the end, these are minor quibbles. Epperly’s work in THE POLITICAL FOUNDATIONS OF JUDICIAL INDEPENDENCE IN DICTATORSHIP AND DEMOCRACY is commendable for its ability to at once be precise in its goal, ambitious in its scope, and detailed in its execution, and as such I fully expect it to become core piece of the literature on the timeless puzzle of judicial independence.
REFERENCES:
Henisz, Witold J. 2000. “The Institutional Environment for Economic Growth.” ECONOMICS AND POLITICS 12(1):1 - 31.
Henisz, Witold J. 2002. “The Institutional Environment for Infrastructure Investment.” INDUSTRIAL AND CORPORATE CHANGE 11(2): 355 - 389.
Linzer, Drew and Jeffrey K. Staton. 2015. “A Global Measure of Judicial Independence, 1948-2012.” JOURNAL OF LAW AND COURTS 3(2): 223 - 256.
© Copyright 2021 by author, Jay N. Krehbiel.
