Law & Economics Working Papers
The relationship between de jure and de facto judicial independence is much debated in the literature. Some studies find no relationship between the formal rules governing the structure of the judiciary and its de facto independence. Other studies find a significant correlation between de jure and de facto judicial independence, with one study even touting de jure judicial independence as the most powerful predictor of de facto judicial independence. This paper sets out to explain these divergent findings by reassessing the relationship between de jure and de facto judicial independence using data on de jure judicial independence from the Comparative Constitutions Project and a new measure of de facto judicial independence from Linzer and Staton. The resulting analysis addresses many of the empirical problems in the existing literature, providing a robust test of the effect of de jure judicial independence on de facto judicial independence. Our findings indicate that rules governing the selection and removal of judges are the only de jure protections that actually enhance judicial independence in practice. This effect is strongest in authoritarian regimes and in contexts with checks on executive authority.
James Melton & Tom Ginsburg, "Does De Jure Judicial Independence Really Matter? A Reevaluation of Explanations for Judicial Independence" (Institute for Law and Economics Working Paper No. 612, 2012).