Mapping Constitutionally Safeguarded Judicial Independence—A Global Survey

• Author: Stefan Voigt,Bernd Hayo
• Published date: 01 March 2014
• DOI: http://doi.org/10.1111/jels.12038
• Date: 01 March 2014

Mapping Constitutionally Safeguarded

Judicial Independence—A Global Survey

Bernd Hayo and Stefan Voigt*

De jure judicial independence (JI) is the single most important predictor of de facto JI. In

this article, we describe under what conditions countries are likely to include JI in their

constitutions. We describe and analyze both their original choice in this regard as well as

change over time using a newly constructed data set comprised of 100 countries and

covering the years between 1950 and 2005. Particularly robust findings are that former

British colonies are less likely to address JI explicitly, as are states in the Caribbean. Electoral

rules appear to matter and so does the form of government. A higher percentage of urban

dwellers reduces the likelihood of mentioning JI in the constitution. Finally, we show that

the likelihood that a constitution is altered with regard to JI is quite small: after a period of

more than 50 years, 85 percent of all constitutions have remained unchanged in this regard.

I. Introduction

Research into both the consequences and the causes of judicial independence ( JI) has

made steady progress over the last several years. For example, in 2002, Burbank and

Friedman (2002:9) could claim that “[j]udicial independence exists primarily as a rhetori-

cal notion rather than as a subject of sustained, organized study.” In another contribution

to that same volume, Jennings Peretti (2002:122) wrote: “We need precise measures of

judicial independence and research that then tests its causes and consequences. For

example, we cannot simply assume that tenure and salary protections guarantee judicial

independence.”

Since then, there has been substantial progress in the field. Various indicators to

make JI measurable have been proposed and it has been shown that de facto JI is robustly

correlated with economic growth (Feld & Voigt 2003). Focusing on the highest court of a

country, the authors measure de facto JI over a period of up to four decades (namely,

*Address correspondence to Bernd Hayo, Philipps University Marburg, Faculty of Economics and Business Admin-

istration (FB 02), Universitätsstr. 24, D-35032 Marburg, Germany; email: hayo@wiwi.uni-marburg.de. Voigt is at

Institute of Law & Economics, University of Hamburg.

The results presented in this article are the outcome of a substantial effort in coding constitutions. An encom-

passing project was originally started by Elkins et al. (2009). Regarding the coding of the variables presented here,

most of the coding was done by a team of research assistants: Marc Berendsen, Dante Castillo, Nora El Bialy, Nora

Heil, Jens Merte, and Max Thesing. The team was coordinated by Jerg Gutmann, who also estimated the bivariate

correlations. Their help is gratefully acknowledged. The article was presented at a workshop on Constitutional Design

at the Law School of the University of Chicago. Many participants helped to improve the article; in particular, Lee

Epstein, Tom Ginsburg, David Law, and Barry Weingast.

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Journal of Empirical Legal Studies

Volume 11, Issue 1, 159–195, March 2014

159

between 1960 and 2000). This indicator for de facto JI is constructed as an index based on

various items, such as the average effective term length of judges over this period, whether

both judicial salaries as well as the court budget have remained, at least, the same in real

terms, and how many times decisions by the respective court have not been implemented

by the executive or (and) the legislature. Yet, wide gaps in our knowledge remain. This

article aims at narrowing two of them: (1) the role that constitutions play in safeguarding

JI, and (2) how safeguarding JI has changed over time.

To achieve this, we document the ways in which 23 aspects of JI are safeguarded in the

constitutional documents of as many as 100 countries. To see whether important changes

have occurred over time, we code constitutions on an annual basis between 1950 (or the

first year of a country’s independence) and 2005.

Whereas research shows that de jure JI—such as that guaranteed in the

constitution—bears only little resemblance to de facto JI, de jure JI is still the single most

important determinant of de facto JI (Hayo & Voigt 2007). If de jure JI is the single most

important predictor for de facto JI and de facto JI is robustly correlated with economic

growth, then inquiry into the determinants of JI is clearly warranted. But this is not the only

reason for undertaking the present study: this article can also be read as a contribution to

the newly emerging literature on endogenous constitutions that asks why different societies

choose different constitutional rules (for a survey of this literature, see Hayo & Voigt 2013).

In this article, we describe how constitutions have evolved. We are particularly inter-

ested in illustrating long-term trends in the ways JI is safeguarded via the constitution. For

instance, it has often been claimed that judicial review experienced a triumphal ascension

after World War II (a recent survey is Ginsburg 2008). It has also been suggested that the

degree of JI might be correlated with the degree of democracy, or with per-capita income,

or with legal origins, and so forth. Our new database allows us to test all these claims.

A considerable number of results emerge. First, both in a bivariate as well as in a

multivariate setting we find that former British colonies are less likely to address JI explic-

itly, as are states in the Caribbean. Second, only in a bivariate analysis do we find that legal

origin matters for the inclusion of JI in the constitution; in a multivariate setting, legal

origin is dominated by geographic and colonial heritage factors. Third, our bivariate

analysis shows that there is a significantly negative association between majoritarian elec-

toral rules and JI in the constitution. In the multivariate setting, however, we discover a

significantly negative influence of proportional voting on the likelihood of including JI in

the constitution. Fourth, in the bivariate setting we find that parliamentary democracies

tend to have less, and presidential democracies more, constitutional safeguarding of JI. This

outcome does not survive in a multivariate setting. Fifth, there is a positive correlation

between the Austrian/Continental-European type of court model and the implementation

of judicial independence and a negative correlation with the U.S. court model. Yet again,

we cannot corroborate this finding in a multivariate context. Sixth, the distribution of

resources within a society is important: a higher percentage of family farms, a wider

distribution of education, and higher percentage of urban dwellers are all connected with

a lower likelihood of mentioning JI in the constitution. In a multivariate model, it is only the

latter result that remains significant in a direct comparison between the distributional

indicators. Seventh, religion has a significant impact on whether JI is included in a country’s

160 Hayo and Voigt

constitution: societies with a high degree of religious fractionalization are not only less

likely to anchor JI in their constitutions, but also less likely to change their constitutions to

do so later. Eighth, Muslim countries are more likely to mention JI in their constitutions,

whereas Protestant countries are less likely to do so. Finally, we show that the likelihood that

a constitution is altered with regard to JI is quite small: after a period of more than 50 years,

85 percent of all constitutions have remained unchanged.

The rest of this article is organized as follows. Section II reiterates a number of

conjectures for the purported relevance of JI. In Section III, the newly assembled data set

is described in detail. Section IV contains our analysis of the data; Section V contains both

a multivariate as well as a survival analysis and Section VI concludes.

II. Some Conjectures

An independent judiciary is one means of solving the dilemma of the strong state. This

dilemma, briefly, is that on the one hand, a state must be strong enough to protect private

property rights; on the other hand, a state powerful enough to protect private property

rights is also powerful enough to attenuate or completely disregard private property rights.

Such a situation benefits no one. Citizens who anticipate that their property rights may not

be respected have less incentive to create wealth. The government, for its part, will receive

lower tax income and will have to pay higher interest rates as a debtor. A state’s formal

strength thus turns into factual weakness. A judiciary that can adjudicate between state and

citizens without any interference from the government can reduce this dilemma. If the

judiciary is a neutral arbiter and its decisions are systematically implemented by the other

government branches, aggregate investment will rise and the economy will grow more

quickly. Thus, in principle, the judiciary is an institutional arrangement that solves the

dilemma of the strong state. An independent judiciary is, in other words, a precommitment

device that can turn government promises to respect private property rights into credible

commitments.

JI implies that judges can expect their decisions to be implemented regardless of

whether such decisions are in the interests of other government branches upon which the

actual implementation depends. It further implies that judges—apart from their decisions

not being implemented—are not subject to negative consequences as the result of their

decisions, such as (1) being dismissed, (2) being paid less, or (3) losing influence. Three

archetypical situations in which the independent judiciary plays a crucial role can be

distinguished.

1. In cases of conflict between private parties: if one of the parties to a voluntary

contract believes that the other side has not fulfilled its obligations, impartial

dispute resolution can be important. As long as both sides expect the judiciary to

be impartial and hence immune from pressure by either of the contract partners

or any other party, they can save on transaction costs while negotiating their

contract. In general, lower transaction costs lead to more welfare-enhancing

transactions.

Mapping Constitutionally Safeguarded Judicial Independence 161