According to popular wisdom, judicial independence and the rule of law are essential features of modern democracy. Drawing on the growing comparative literature on courts, we unpack this claim by focusing on two broad questions: How does the type of political regime affect judicial independence? Are independent courts, in fact, always essential for establishing the rule of law? In highlighting the role of institutional fragmentation and public opinion, we explain why democracies are indeed more likely than dictatorships to produce both independent courts and the rule of law. Yet, by also considering the puzzle of institutional instability that marks courts in much of the developing world, we identify several reasons why democracy may not always prove sufficient for constructing either. Finally, we argue that independent courts are not always necessary for the rule of law, particularly where support for individual rights is relatively widespread.
Gretchen Helmke, who has written earlier on many topics, including the politics of constitutional review in Argentina, has a new paper (gated) with Frances Rosenbluth about judicial independence from a comparative perspective: