Rethinking Judicial Independence in Democracy and Autocracy

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Rethinking Judicial Independence in Democracy and Autocracy Rethinking Judicial Independence in Democracy and Autocracy by Moohyung Cho Department of Political Science Duke University Date: Approved: Georg Vanberg, Advisor Edmund Malesky Melanie Manion Jack Knight Dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of Political Science in the Graduate School of Duke University 2020 Abstract Rethinking Judicial Independence in Democracy and Autocracy by Moohyung Cho Department of Political Science Duke University Date: Approved: Georg Vanberg, Advisor Edmund Malesky Melanie Manion Jack Knight An abstract of a dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of Political Science in the Graduate School of Duke University 2020 Copyright c 2020 by Moohyung Cho All rights reserved except the rights granted by the Creative Commons Attribution-Noncommercial Licence Abstract Building independent courts is a commitment by political leaders that they are willing to tie their hands, restrain their (often arbitrary) power, and respect judicial decisions even if the courts rule against them. But if political leaders are rational, why do they persist in their respectful behavior towards independent courts even when such courts may prove adverse to themselves? In other words, how can judicial independence be credibly maintained without being eroded by political leaders? In this dissertation, I seek to answer this important but underexplored question in comparative judicial politics by examining the political and economic conditions necessary to maintain judicial independence in autocracies and democracies. In Chapter 2, I build a theory regarding the methods by which autocrats credibly still maintain judicial independence, given the lack of formal institutions capable of constraining their ever-present chance of reneging. I develop a causal mechanism by which a regime's economic reliance on foreign direct investment (FDI) and auto- crats' concern about their reputation interact to create strong and ongoing incen- tives to maintain judicial independence as a property rights assurance for foreign investors. Using panel data covering a large sample of authoritarian countries during the post-Cold War period, I find quantitative evidence of my theoretical expectation in Chapter 3, and demonstrate that a regime's past reliance on FDI is positively and significantly associated with the current level of judicial independence. My empirical analysis further indicates that the theorized effect is restricted to the economic di- iv mension of judicial independence, in both the medium term and the long term, and that the effect is also contingent on the type of authoritarian regime that is present in the country. In Chapter 4, I present a modified version of the so-called insurance theory and claim that the impact of political competition on judicial independence in democra- cies fits a slight modification I suggest to this theory. Adopting insights from party politics literature, I argue that, beyond mere electoral closeness, the presence of \robust" political competition is conducive to generating the incumbent's credible perceptions of threats of the loss of his power and thus this form of competition is more relevant for anchoring the logic of the insurance theory. To illustrate the significance of robust political competition and the conditions thereof, I conduct a qualitative case study of South Korea and the Philippines, which differ in the level of judicial independence despite their similar degree of electoral closeness after de- mocratization. Drawing on each country's political history, descriptive data, and the specific episodes of judicial independence in both countries, I find that the existence of robust political competition, backed by an institutionalized party system and a stable set of robust actors, has allowed South Korea to develop judicial independence consistent with the insurance logic. By contrast, the absence of robust political com- petition in the Philippines, which is attributable to a fluidic and clientelistic party system with a lack of robust opposition, has discouraged incumbents from taking advantage of judicial independence as a form of political insurance for themselves. v ¬랑X고 t½X는 ´8È께 바i니다. vi Contents Abstract iv List of Tablesx List of Figures xi List of Abbreviations xiii Acknowledgements xv 1 Introduction1 1.1 Motivating Puzzle.............................1 1.2 Outline of the Dissertation........................4 1.3 Contributions of the Dissertation....................8 2 Theorizing the Maintenance of Judicial Independence in Authoritarian Regimes 12 2.1 Introduction................................ 12 2.1.1 Judicial Independence in Authoritarian Regimes: Overview.. 12 2.1.2 Puzzle: Maintenance of Judicial Independence in Authoritarian Regimes.............................. 17 2.2 Theoretical Background......................... 21 2.3 Decomposing Commitment Problem in Authoritarian Regimes.... 23 2.3.1 Primary Commitment Problem................. 24 2.3.2 Secondary Commitment Problem................ 28 2.4 Theory................................... 31 vii 2.4.1 How FDI Induces Autocrats' Credible Commitment to Judicial Independence........................... 33 2.4.2 Reputation as a Mediating Factor................ 36 2.4.3 FDI, Reputation, and Judicial Independence: Decision-Theoretic Explanation............................ 40 2.5 Conclusion................................. 44 3 Testing the Effect of FDI on Judicial Independence in Authoritarian Regimes 46 3.1 Related Literature: Empirical Studies on the Institutional Effect of FDI 47 3.2 Research Design.............................. 51 3.2.1 Data................................ 51 3.2.2 Dependent Variable........................ 53 3.2.3 Independent and Control Variables............... 56 3.2.4 Estimation Strategy....................... 60 3.3 Baseline Results.............................. 60 3.4 Extensions of my Baseline Analysis................... 66 3.4.1 Alternative Measures of Judicial Independence......... 67 3.4.2 Different Lags........................... 70 3.4.3 Different Regime Types..................... 72 3.5 Conclusion................................. 76 3.6 Appendix................................. 77 3.6.1 Alternative Measures of Judicial Independence......... 77 3.6.2 Different Lags........................... 80 3.6.3 Different Regime Types..................... 82 4 Rethinking Insurance Theory in Democracies: The Case of South Korea and the Philippines 84 4.1 Related Literature............................ 87 viii 4.2 Theory................................... 92 4.2.1 Beyond Electoral Closeness: Robust Political Competition.. 92 4.2.2 Conditions for Robust Political Competition.......... 94 4.2.3 Synthesis: Modifying and Expanding Insurance Theory.... 101 4.3 Case Selection: South Korea and the Philippines............ 104 4.4 The Presence and Absence of Robust Political Competition in South Korea and the Philippines.................... 107 4.4.1 Democratization and an ASP as a Robust Opposition..... 107 4.4.2 Party System Institutionalization................ 117 4.5 Judicial Independence in South Korea and the Philippines: Two Tales 126 4.5.1 South Korea: Judicial Reform under Roh Moo-hyun Administration.......................... 126 4.5.2 The Philippines: The Impeachment of Chief Justice Corona.. 133 4.6 Conclusion................................. 138 5 Conclusion 142 5.1 Summary of Findings........................... 142 5.2 Implications and Significance of Findings................ 145 5.3 Future Research Agendas......................... 148 Bibliography 154 Biography 167 ix List of Tables 3.1 Overview of the selected empirical works on the institutional effect of FDI.................................... 50 3.2 Descriptive statistics........................... 59 3.3 Full baseline results with using three-year lag............. 65 3.4 Full baseline results with using a three-year moving average..... 66 3.5 Regression results with using alternative measures of judicial indepen- dence.................................... 69 3.6 Comparison of the means of each variable by regime types...... 73 3.7 Regression results by regime types.................... 74 3.8 Full regression results with using alternative measures of judicial in- dependence................................ 79 3.9 Full regression results with different lags................ 81 3.10 Full regression results by regime types................. 83 4.1 Selected empirical studies to test insurance theory........... 91 4.2 Electoral volatility in South Korea and the Philippines........ 121 x List of Figures 1.1 The structure of the dissertation.....................4 1.2 Contributions of the dissertation.....................9 2.1 Judicial independence in authoritarian regimes, 1960-2010...... 14 2.2 The compartmentalized nature of judicial independence in authoritar- ian regimes................................ 18 2.3 Two types of commitment problem................... 25 2.4 The average amount of FDI inflows in authoritarian countries.... 33 2.5 Theoretical framework.......................... 42 3.1 Full list of authoritarian countries and their regime types in my data 52 3.2 The value of the logit-transformed CIM in all authoritarian countries in my data................................. 55 3.3 Scatterplot of the relationship between FDI reliance and judicial in- dependence in the entire sample..................... 61 3.4 Country-by-country
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