Judicial Reform under Authoritarianism: The Role of Regime–Judiciary Relations during Periods of Political Competition (SWP 46)

According to the so-called Insurance Theory of judicial empowerment, incumbent elites create independent and empowered courts in order to protect themselves and their policies after leaving office. In many authoritarian regimes, however, elites have very poor relations with their judiciaries, and therefore will have little reason to expect fair treatment from the courts in the event of their overthrow. Drawing on case studies from Sudan, Egypt, Mexico, and Argentina, this article shows that when regime–judiciary relations are poor, the logic of the Insurance Theory is reversed and increased political competition leads to less judicial independence instead of more. It then presents a revised version of the Insurance Theory better suited to authoritarian cases.