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In the Shadow of Authoritarian Rule : The Political Antecedents for Judicial Independence in New Democracies

In this article, I probe the antecedent political foundations for the constitutionalization of judicial independence in new democracies. Taking the growing evidence that partisan competition provides strategic incentives for political actors to establish independent judiciaries as a starting-point, I draw from the comparative politics literature on authoritarianism and democratization to ask: What are the political dynamics and institutional structures prior to democratization that are most likely to engender electoral uncertainty and party competition post-transition? I argue that there are compelling theoretical reasons to expect that the degree to which political contestation was institutionalized under authoritarianism is likely to shape the dynamics of democratization, the fate of the emergent democratic regime, and political actors’ strategic calculus over whether or not to institutionalize an independent judiciary in the constitution-writing process. I conclude by outlining a proposed research strategy that would enable the empirical testing of the proposed historical institutionalist argument. ∗Ph.D. Candidate, Department of Politics, Princeton University.