The Global Diffusion of Judicial Independence: A Pathway Analysis of How Domestic Support Structure Conditions International Rule of Law Promotion
Open AccessWestern democracies and various international governmental and nongovernmental organizations have been eager to promote judicial independence in developing countries in a belief that an independent judiciary would consolidate democratic governance in the world. However, despite the extensive and still-growing demands from foreign and international agencies, surprisingly little has been clarified whether and how these foreign efforts are conducive to the global diffusion of judicial independence since the 1980s. This dissertation aims to clarify the puzzles by incorporating prior scholarship in judicial politics and norm/policy diffusion. I argue that external pressures based on a top-down supply-side-targeting norm promotion mechanism such as foreign aid and IGO membership are conducive to promoting strategic adoption of de jure judicial independence, but not de facto judicial independence. Meanwhile, external pressures based on a bottom-up norm promotion strategy aiming at demand-side non-governmental actors in a state are conducive to enhancing de facto judicial independence. Yet, their impacts would be conditional on the presence and strength of domestic civil society organizations. I rely on a mixed method approach. First, I conduct a cross-national analysis by using a series of conditional fixed-effects logistic and random-effects generalized least squares models. Second, I conduct a pathway analysis to identify through which diffusion mechanism the global demands for judicial independence empower de facto judicial independence in a state. A pathway analysis aims to clarify causal mechanisms between a key explanatory variable (X) and an outcome (Y), by investigating why the “revealed” impact of X on Y (from a cross-national analysis) is significant in some cases, but not in others. Based on the results of a pathway value estimation, I select South Africa and Bulgaria for a comparative study of how the presence and strength of domestic civil society conditions the impact of global demands for judicial independence. Lastly, I conduct an in-depth process-tracing case study of South Korea. Results of a cross-national analysis generally supports my argument. A top-down norm promotion mechanism can be conducive to spreading de jure judicial independence, but not to consolidating de facto judicial independence, while a bottom-up norm promotion mechanism (i.e. INGOs) facilitating domestic support structure is conducive to spreading and consolidating judicial independence in transitional democracies, conditional on the presence of a robust civil society. A comparison of South African and Bulgarian cases confirms that INGOs are more likely to enhance judicial independence indirectly by empowering domestic civil society organizations. An in-depth investigation of the evolution of judicial independence in South Korea clarifies the moderating effects between a robust civil society and INGOs.
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