New Evidence for a Positive Relationship between De Facto Judicial Independence and State Respect for Empowerment Rights

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Authors Charles Crabtree, Michael J. K. Nelson
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Paper Abstract Does increased judicial independence lead to increased state respect for empowerment rights? Initial research on this topic has suggested an affirmative answer. Advances in measurement, however, call into question our understanding of the effects of judicial independence. In this paper, we re-examine the effect of de facto judicial independence on state respect for empowerment rights, making use of new measures and different modeling methods. In our empirical analysis, we find a positive association between the two concepts. This result is robust to a range of measures and modelling strategies. Increased judicial independence appears to substantially limit state violations of empowerment rights. Forthcoming in International Studies Quarterly ∗We would like to thank Christopher J. Fariss and Luke Keele for many helpful comments and suggestions. We would also like to thank M. Rodwan Abouharb, K. Chad Clay, and Linda Camp Keith for generously sharing their data with us. This research was supported by The McCourtney Institute for Democracy Innovation Grant and the College of Liberal Arts at Pennsylvania State University. All data files necessary to replicate the analysis presented in the article will be publicly available upon publication at dataverse repositories maintained by the authors. Introduction A major function of courts is to limit governmental power. Courts can constrain governmental exercise of power by nullifying or limiting governmental actions that violate constitutional or international laws. For example, the power of judicial review enables a constitutional court to nullify a duly approved law that oversteps the bounds of power allocated to the legislature by the constitution. The importance of courts extends beyond the ability of a constitutional court to invalidate legislation. Courts can also constrain government power in other arenas, ensuring that governments respect the rights of their citizens. Of course, not all courts are equally powerful; a court’s ability to be efficacious depends on its independence. Lacking the ability to implement their own decisions, courts are dependent upon the willingness of other political actors to follow their decisions in order for their decisions on paper to become binding law in practice. With this in mind, scholars have typically differentiated between courts that are independent by institutional design (de jure independence) and those that are independent in practice (de facto independence) (Linzer and Staton, 2015). Studies suggest that higher levels of both types of judicial independence, de facto and de jure, are associated with increased state respect for physical integrity rights (Abouharb, Moyer and Schmidt, 2013; Crabtree and Fariss, 2015; Lupu, 2013). Physical integrity rights encompass the rights to be protected from extrajudicial murder, forced disappearance, torture, and political imprisonment (Fariss, 2014a). Beyond physical integrity rights, empowerment rights represent another set of obligations which governments must respect (Richards, Gelleny and Sacko, 2001).1 While physical integrity rights are undoubtedly important, empowerment rights are also vital. They affect citizens’ fundamental relationship with their government: the ability of citizens to criticize the government, the ability to live their lives according to their own belief systems, and their ability to seek refuge from repressive gov1A common conceptualization of empowerment rights includes the right to electoral self-determination, the right to domestic movement, the right to foreign movement, the right to religious freedom, the right to freedom of speech, and the right to assembly and association (Cingranelli, Richards and Clay, 2015).
Date of publication 2017
Code Programming Language R

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