IS THERE A POLITICALLY OPTIMAL LEVEL OF JUDICIAL INDEPENDENCE?

IS THERE A POLITICALLY OPTIMAL LEVEL OF JUDICIAL INDEPENDENCE?

F.A. Hassen

A Summary 

In a Nutshell

By establishing an independent court (judges not subject to re-appointment at end of period one, in a two period model) incumbent policy makers make it more costly for a future regime to alter the policies passed today. A judge who cannot be penalized can more strictly enforce the constitution and statutory provisions, whereas a judge who can be punished is more likely to accede to the powers that be. At the same time however, independent judges are better able to make policy of their own thereby shifting policy in unpredictable directions. There are thus pros and cons for the incumbent regime.

 If a regime can choose between an independent or dependent judiciary (one that is subject to re-appointment in period 2), and the incumbent faces an exogenously determined probability of losing office at the end of period 1 then the incumbent is more likely to create an independent judiciary where electoral competition is high, and the opposing party is a significant distance away in terms of policy preferences. This assumes the incumbent wants to try to benefit from preventing a change to its enacted policy.

 The results of this empirical test are largely in line with this theory. The importance of good institutions is well recognized, but it is not clear why they are actually chosen in some circumstances but not others. The most independent institutions seem to exist in systems with closer competition and larger differences in political platforms. An independent court may be the most socially desirable, but there are political economy reasons to suggest that what is socially desirable may not be politically the most desirable from the point of view of incumbents.

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