Explaining Support for Human Rights Protections: A Judicial Role?

Abstract

Scholars have identified a number of societal features that contribute to the support of human rights. Controlling for the most prominent of these factors, we examine the degree to which judicial independence (JI) exerts an autonomous positive effect on human rights. We use a cross-sectional design, drawing on data for the 27 European Union members and its four prospective members, in conjunction with ordinary least squares (OLS) regression. We find that multiple indices of JI based on expert judgment, which include institutional but predominantly behavioral measures, reveal JI producing the most powerful positive effect in the support of human rights among the variables included in the analysis. Multiple measures of JI based on public surveys of the trustworthiness of a society's judicial institutions exert a positive, but not statistically significant, effect on support of human rights. Indeed, these latter effects are eclipsed by the relative equality of a society's national executive and legislature and its GDP/capita. Surprisingly, judicial review exerts no statistically significant effect on human rights protection, counter to the conventional wisdom that has driven so many constitutional designers in the post-World War II era. Our findings suggest that, while an independent judiciary holds the greatest potential for protecting human rights, constitutional drafters should focus less on institutional elements related to judicial independence and judicial review. Rather, those crafting constitutions intended to protect human rights should look to dispersing government power by enhancing electoral competitiveness and fostering judicial independence.

Acknowledgments

Thanks to Arend Lijphart for data on judicial review that will appear in his revised edition of Patterns of Democracy.

Notes

1. Details of this amalgamation can be obtained from the corresponding author. In general, our greatest challenge in this study has been finding comparable data and assessments for the societies of Old and New Europe.

2. Transparency International (TI) does not cover five of the societies included in this study (Belgium, Cyprus, Estonia, Malta, and Slovakia). We have added scores for these five societies by comparing the TI data with the World Bank Governance Index of Corruption Control. Additionally, the scores in our data for Macedonia and Sweden come from 2008 and 2006, respectively. In spite of these problems with the TI data, we prefer them to the World Bank corruption data, with which they correlate at .88, for three reasons. First, the TI data focus on the judiciary and the legal system, whereas the World Bank data have a broader, societal focus. Second, we wanted to compare the JI estimates of multiple examples of expert judgment with multiple examples of public surveys. Third, we wanted to draw our JI estimates from as many distinct institutional sources as feasible. Since we were already using the World Bank's rule of law data, we preferred to turn to TI for judicial corruption data.