Judicial Autonomy in Central America

• DOI: 10.1177/1065912913477734
• Date: 01 December 2013
• Published date: 01 December 2013
• Author: Rachel E. Bowen
• Subject Matter: Articles

Political Research Quarterly

66(4) 831 –842

© 2013 University of Utah

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DOI: 10.1177/1065912913477734

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Article

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

477734PRQXXX10.1177/10659129134

77734Political Research QuarterlyBowen

1The Ohio State University, Mansfield, USA

Corresponding Author:

Rachel E. Bowen, The Ohio State University (Mansfield Campus), 249

Ovalwood Hall, 1680 University Drive, Mansfield, OH 44906, USA.

E-mail: bowen.208@osu.edu

Judicial Autonomy in Central

America: A Typological Approach

Rachel E. Bowen1

Abstract

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.

Keywords

judicial politics, Central America