Building an Independent Judiciary: Establishing Institutional Legitmacy in Developing Democracies

Abstract

This paper investigates the factors that contribute to the establishment of an independent judiciary that acts as an appropriate check on other branches of government in emerging democracies. First, the U.S. Supreme Court is studied as a successful case of establishing an independent judiciary to derive lessons that can be applied to present-day emerging courts. Based on a literature review, the perquisites for an independent judiciary are competitive and clean elections, the existence of multiple political parties, peaceful regime changes, public access to and knowledge of information related to the courts, and judges that serve lifetime appointments both by law and in practice. A successful court system will also need public and regime support. These lessons are then applied to the failed court system in Argentina, which has a constitution modeled after the U.S. Constitution. The failure of the Argentine Supreme Court to establish independence from the influence of other government actors is due primarily to fact that Argentine justices are removed via informal pressures with each regime change, despite Constitutional protections. Finally, this paper concludes that the fate of the emerging judiciaries around the world is mostly dependent on the actions of outside influences, especially the lay public.