Academic journal article Political Research Quarterly

Judicial Autonomy in Central America: A Typological Approach

Academic journal article Political Research Quarterly

Judicial Autonomy in Central America: A Typological Approach

Article excerpt


Judicial autonomy from societal actors is argued herein to be a critical aspect of the rule of law and to have been overlooked by the dominance within comparative judicial politics of the role of interbranch judicial independence. These distinct concepts are parsed and then interrelated to form a typology of four "judicial regime types": liberal regimes, partisan control regimes, clandestine control regimes, and government control regimes. These regime types are then traced in five Central American countries.


judicial politics, Central America

In 2000, Pilar Domingo (2000) asked the pertinent ques- tion, "How much independence is considered due, and from whom?" Most scholars have focused on indepen- dence from other official actors as the definition of judi- cial independence. This article challenges that emphasis and advocates the addition of a focus on judicial auton- omy. By judicial autonomy, I refer to the ability of the judges to decide cases without pressure from powerful groups in society; autonomy becomes an especially sig- nificant concern as a larger share of power is held by nonofficial actors. Failures of independence and auton- omy can produce highly inequitable outcomes for liti- gants, but the weight of these burdens on different groups depends on the type of failure. Weak judicial indepen- dence harms political enemies, while weak judicial autonomy disadvantages the poor and the powerless while favoring the wealthy and the violent. Choices by powerful political and societal actors to rely on the polit- ical laws, the constitution, government force, or private force limit the possibilities in future conflicts and weigh the scales of justice in favor of certain kinds of litigants- namely, those litigants who have access to the influence of choice. These choices produce judicial regimes; the rule of law (or its absence) is the primary consequence. This article develops a typology of judicial regime types, which leads to the conclusion that a lack of judicial autonomy is more dangerous to the rule of law and likely to liberal democracy itself. These judicial regime types are discussed in the context of five Central American countries, which represent all of the judicial regime types while holding constant a variety of cultural, his- torical, and institutional features.

Models of Judicial Politics: A Critical Analysis

The study of judicial politics has been dominated by two primary models: the separation-of-powers (SOP) model, derived from the United States and typically applied to developed democracies, and the executive-dominant model, derived from authoritarian systems and typically applied to developing countries. While these models are seemingly at odds, they suffer from some of the same problems: both focus entirely on intragovernmental inter- institutional relations, or what I call judicial indepen- dence, and ignore the influence of extragovernmental actors on what I call judicial autonomy. Neither model provides a satisfactory explanation of judicial politics in weak democracies, but useful elements may be extracted from each.

The SOP Model

Epstein and Knight (1997, 10) summarized the SOP model thus: "Rather, justices are strategic actors who realize that their ability to achieve their goals depends on a consideration of the preferences of other actors, the choices they expect others to make, and the institutional context in which they act." This insight represents a significant advance over the "attitudinal model," which focuses on the policy preferences of judges without allowance for variation in the strategic environment in which judges operate (Segal and Spaeth 2002). The core idea of the SOP model that judges must act strategically and consider the actions of other actors is especially relevant when applied to weak democracies in which tenure is insecure and judges may be subject to threats from a variety of sources. Furthermore, short tenures may actually create an incentive to sell judicial decisions to wealthy and powerful patrons who can secure a postjudicial future for a judge or magistrate. …

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