Courts and the Law
Linda Camp Keith
2011 | 336 pages | Cloth $75.00
Law | Public Policy
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Table of Contents
Chapter 1. Introduction
Chapter 2. Empirical Theories and Studies of Political Repression
Chapter 3. The Standard Model of Human Rights
Chapter 4. Political Repression and the Role of the Judiciary
Chapter 5. Constitutional Provisions for Human Rights as Protection Against Political Repression
Chapter 6. Constitutional Protections and Repression When Regimes Are Threatened
Chapter 7. Protecting Human Rights: Conclusions
Excerpt [uncorrected, not for citation]
The constitution [of Jordan] provides for freedom of speech and press; however, the government imposed significant restrictions on these rights in practice. Citizens generally were able to criticize the government openly, although journalists exercised caution in regard to the king, the royal family, the GID [General Intelligence Directorate], and sensitive topics such as religion. Government intimidation and the threat of fines and detention led to self-censorship of journalists during the year. (U.S. Department of State 2007)
The constitution [of Egypt] prohibits arbitrary arrest and detention; however, during , police and security forces conducted large-scale arrests and detained hundreds of individuals without charge under the Emergency Law. Continuing a trend begun in 2005, the government arrested and detained hundreds of activists affiliated with the banned-but-tolerated Muslim Brotherhood (MB), generally for periods lasting several weeks. (Ibid.)
The constitution [of Zimbabwe] provides for an independent judiciary; however the judiciary was under intense pressure to conform to government policies and the government repeatedly refused to abide by judicial decisions. (Ibid.)
On a documentary level the world seems to have converged upon a set of ideals regarding states' human rights behavior and the appropriate institutions to promote and protect those ideals. At the turn of the new century the global script for state legitimacy calls for a written constitution or the equivalent, with an embedded bill of rights, democratic processes and institutions, and, increasingly, a judicial check on state power to protect an internationally recognized set of human rights. Evidence of formal acceptance of these norms is overwhelming. The formal commitment to international human rights norms approaches near universality as each of the core conventions composing the international human rights regime claims state parties representing from 75 to 99 percent of the global set of states: 173 states are parties to the International Convention on the Elimination of All Forms of Racial Discrimination (89 percent), 164 have ratified or acceded to the International Covenant on Civil and Political Rights (84 percent), 160 are parties to the International Covenant on Economic, Social and Cultural Rights (83 percent), 186 have ratified or acceded to the Convention on the Elimination of All Forms of Discrimination Against Women (96 percent), 146 are parties to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (75 percent), and 193 are parties to the Convention on the Rights of the Child (99 percent), making it the most the universally accepted of these core human rights instruments (UN Treaty Collection, accessed December 2009). Currently, around 90 percent of nation-states have a written constitution or set of basic laws that constitute paramount domestic law (Elkins, Ginsburg, and Melton 2009, 49), 65 percent of which contain "an explicit declaration regarding the independence of the central judicial organs" (Constitutional Design Group 2008, 1). Much of the constitution writing in the last half of the twentieth century has resulted from the postcolonial emergence to independence of almost 100 countries, and, as Go (2003) notes, most of these states have rewritten their original postindependence constitutions at least once. Beer (1992) calls the latter decades of the twentieth century "an era of unprecedented experimentation in forms of government and law under written constitutions, as colonialism ended and each newly independent state sought its constitutional identity while other countries responded to challenge by revising or amending basic laws" (1). Postcolonial constitutions accounted for roughly two-thirds of all the world's constitutions by the 1970s, and by the 1990s, postcolonial constitutions, combined with those of the ex-Soviet countries and other secessionist countries, made up more than four-fifths of the constitutions of the world (Beer 1992). All but 10 percent of current postcolonial constitutions have a section devoted to rights provisions under a separate title (Go 2003, 81). Go posits that the postcolonial documentary constitutions are remarkable in that there is "no immediately necessary condition between having an independent state and writing a single-document constitution," nor is there any imperative that they be similarly constituted and yet "all existing constitutions share some basic features" (72). For Go, these patterns "affirm that documentary constitutionalism has become a globally shared mode of organizing sociopolitical formations" (72). Beer would concur. As early as 1992, he saw that "these historic decades of frenetic constitution making activity" reflected "a convergence in the world towards relatively few living traditions of modern law, and the beginnings of mutual comprehension among legal scholars and practitioners of these different traditions" (1). Furthermore, he argues that this period saw "the achievement of at least formal global political consensus on the centrality—once national independence and stability are achieved—of human rights to sound and moral government and law" (1).
While the progress toward universal formal adherence to this global model is remarkable, the substantive meaning of this progress is much less clear. On one hand, numerous scholars and human rights proponents express at least some optimism that this proliferation of formal rights protections will translate into actual state protection of human rights in those countries adopting the legal provisions (for example, Ackermann 1989; Elster 1993; Finer, Bogdanor, and Rudden 1995). Scholars presume that regimes will be less willing to abuse rights that are clearly and publicly promised in a legally binding document (for example, Rosenthal 1990, 401) and expect that such formal promises may pressure a regime to give in to public demands for these fundamental protections (see Elster 1993; Finer, Bogdanor, and Rudden1995). Some scholars within international relations expect that international human rights discourse and interaction will have a transformative effect even beyond that which leads states to make such formal commitments, and others expect that transnational networks of nongovernmental organizations will help to hold regimes accountable for their promises in law (Koh 1996; Keck and Sikkink 1998; Risse, Ropp, and Sikkink 1999). Other scholars point to states' general propensity to comply with their legal obligations (Henkin 1979; Chayes and Chayes 1993). On the other hand, numerous scholars question the effectiveness of formal mechanisms, speculating that constitutions may provide more window dressing than substantive protection for human rights (Howard 1991, 3) and expressing concern that many constitutions may simultaneously limit the very rights they delineate in terms of the state's interests or the public good (Ludwikowski 1996, 227). Realists within international relations question states' motivation to commit to international human rights treaties and emphasize the weakness of treaty mechanisms and the anarchic nature of the international system (Hoffmann 1956; Waltz 1979; Mearsheimer 1994). Others would temper our expectations, urging us to take a very long-term view of the transition to constitutionalism; they argue that the process is often a repeated trial-and-error process through which countries may over time adapt general constitutional principles to the more particularized circumstances of the individual state (An-Na'im 2003, 2006).
Others are pragmatic and note that, yes, constitutional provisions "may accurately reflect the serious intent of a government and a people on a problem of governance or rights, but history, economy, and/or sociopolitics may make the achievement of the goal in the short run improbable or impossible" (Beer 1992, 11). Some pragmatists argue that "not all constitutions are dishonoured all the time and that certain parts of certain constitutions are obeyed most of the time" and that "very few are entire fictions, bearing no relationship whatsoever to what goes on" (Finer, Bogdanor, and Rudden 1995, 2-3). Empirically we will see in subsequent chapters that while repression of civil liberties has lessened over time, repression of personal integrity rights has not improved, despite the level of documentary provision of human rights. A growing body of empirical studies has largely supported the pessimists' expectation in regard to both human rights treaties and constitutional provisions of fundamental rights. In addition, the judiciary has not appeared to be the guarantor of rights that is often assumed. As we will see in the sections below, at best these studies suggest only a strongly qualified optimism that the universality of these norms and their widespread formalization will lead to improved human rights: the associated improvement is limited, it occurs only in regard to some rights, and it occurs only under a limited set of circumstances. I agree with Beer that the "relationships are often complex between printed provisions, government policies, and social practices" (1992, 11); and here I seek to examine the effect of a subset of these provisions within the broad set of domestic and international circumstances that shape a state's repression of its citizens' fundamental human rights. I believe that in order to understand fully the impact of constitutional provisions for rights and freedoms (and provision for an independent judiciary) on state repression, we should first understand better why states adopt or maintain these provisions in their constitutions. In this book I engage in what I believe is the first systematic large-N cross-national examination of why states make these formal commitments. I then use this theoretical and empirical understanding to inform our study of judicial independence and my ultimate interest, state repression of personal integrity rights and civil liberties.
State Repression of Internationally Recognized Human Rights
The breadth of universally recognized human rights has grown substantially, encompassing an exhaustive list of both first-generation and second-generation rights. Within the human rights subfield, however, the empirical literature has largely focused on the first generation of human rights, and often even more narrowly upon a subset of these rights, personal or physical integrity rights, namely the right to be free from arbitrary physical harm and coercion. Critics could argue that the narrow focus of this field reflects a Western bias that tends to emphasize individual rights over communal rights and duties, and political rights and civil liberties over economic and social rights. There might be some validity to such a criticism, but I believe that this work also reflects a theoretical interest in the nature of political conflict and in the tools that regimes use in order to control or modify the behavior of its citizens, particularly challengers of the regime. To some degree the focus also reflects a prioritization of limited resources and attention, in which scholars may have felt compelled to focus on the most egregious abuses of human rights—a set of rights that also happen to be more universally accepted and less controversial than other categories of human rights. Indeed, as Davenport (2007c) notes in a recent review of the subfield, it is surprising actually that so little attention has been paid to the study of repression and "the evils done by presidents, the police, military, secret service, national guard, and death squads against those within their territorial jurisdiction," especially "given the duration of this practice, the vast numbers of its victims, the range of legal, political, and religious restrictions condemning such activity, the many social movements and human rights organizations dedicated to the elimination of this behavior, and the centrality of relevant action to some of the most prominent ideas and political figures in human history" (1). This focus, to some extent, reflects the relative ease of conceptualizing and measuring these rights, compared to economic, social, and cultural rights. But more importantly the repression of this set of rights represents the sort of repression that usually can be avoided; these types of violations are "usually perpetrated directly by government officials and thus are more easily dealt with by a change in government policy, in direct contrast to violations of economic and social rights, which are often less amenable to change" (Poe and Tate 1994, 854). Thus while my study is clearly set within the broader human rights field, my focus here is limited to political repression rather than to human rights violations more generally. I believe that this work will inform not only studies of political repression but also newly emerging studies of violence against women and the growing body of research that examines the impact of the law on a broader set of rights, including second-generation rights.
Davenport (2007c) carefully distinguishes political repression from human rights violations, arguing that political repression does not necessarily require that a law or norm be violated, in contrast to human rights violations. I believe that most acts of repression do in fact repress or violate internationally recognized human rights norms, such as the right to personal or physical integrity and a broad range of civil liberties promoted in the Universal Declaration of Human Rights, which is "now accepted as declaratory of customary international law" (Reisman 1990, 867) and protected in the International Covenant on Civil and Political Rights and the Convention Against Torture, conventions for which there is near-universal formal acceptance. Throughout the book I use the terms "political repression" and "human rights abuse" and variations of these terms to identify the same behavior. I believe the usage is appropriate for the context of my study, and it allows some rhetorical freedom and variety. Ultimately, I agree with both Davenport's definition of political repression, which he draws somewhat from Goldstein (1978), and with his assessment of the goals that state actors seek to achieve through the use of repression: "By most accounts, repression involves the actual or threatened use of physical sanctions against an individual or organization, within the territorial jurisdiction of the state, for the purpose of imposing a cost on the target as well as deterring specific activities and/or beliefs perceived to be challenging to government personnel, practices or institutions" (2). As Davenport notes in his review of the quantitative literature dedicated to the study of state repression, this work has been unified in its focus on the problem of order and has been "fundamentally concerned with why and how political authorities use coercive power domestically amid potential and existing challenges and challengers" (2007c, 1-2). Most cross-national studies of political repression have tended to focus on one of two dimensions of state repression, rarely on both—either addressing the more severe form of repressions, violations of personal integrity (imprisonment, torture, killing, and disappearances) (for example, Poe and Tate 1994; Poe, Tate, and Keith 1999; Cingranelli and Richards 1999a, 1999b; Keith 2002a), or addressing the broader category of civil liberties restrictions or "negative sanctions" as they are sometimes referred to in the literature (for example, Davenport 1995a, 1995b, 2007a, 2007b; Keith 2002b; Howard and Carey 2004; Walker and Poe 2002). Davenport (2007b) argues that while the two forms of repression share the goal of attempting to influence behavior and attitudes, they achieve the goal differently; civil rights restrictions modify behavior through constraining and channeling opportunities, and personal integrity abuses such as killing and disappearances modify behavior through eliminating actors. Thus it may be shortsighted to perceive repression as one-dimensional. However, as Davenport notes, thus far most explanatory variables have similarly influenced both categories of repression, and therefore it is highly likely that "comparable processes underlie the coercive strategies" (487). While my previous work has largely fit within the first category of repression, in this book I examine both categories. And while, like Davenport, I do find both categories of repression similarly influenced by the same agentic and structural factors, significant differences emerge in regard to the influence of domestic and external threats, constitutional provisions, and, in some limited instances, the role of the judiciary.
Why Do States Repress Their Own Citizens?
While most of the current empirical work on political repression has approached states' behavior from the perspective of international relations theory (primarily a "soft" rational-choice perspective), I seek to expand the theoretical underpinnings that encompass a broader set of subfields in political science, including public law and comparative politics. I do not expect to be able to offer an overarching grand theory that synthesizes the theoretical concerns of these subfields; however, I do believe that the dominant theories share features that may be incorporated under the "organizing concepts" of opportunity and willingness that Most and Starr set forth (1989), and which they argue appropriately encompass both macro and micro approaches (23). I believe the concepts are useful here for structuring the somewhat disparate approaches through which these diverse fields attempt to understand political repression or human rights abuse.
Most and Starr conceptualize opportunity as "a shorthand term for the possibilities that are available within any environment," and which thus "represents the total set of environmental constraints and possibilities" (1989, 23). They conceptualize willingness as "a shorthand term for the choice (and the process of choice) that is related to the selection of some behavioral option from a range of alternatives" and the subsequent employment of "available capabilities to further some policy over others" (23). They derive their notion of these two overarching concepts from the work of the Sprouts (1956, 1965, 1968, and 1969), in particular from these authors' conceptualization of the "ecological triad," which is composed of an entity (with its policy/choice processes), its context or environment, and the relationship or interaction between the entity and the environment (27). According to Most and Starr, "The ultimate entities—single decisionmakers or small groups of decisionmakers—are surrounded by factors that structure the nature of the decision, the options available, the consequences, costs and benefits of those options. Individuals, then, make choices within a complex set of incentive structures. This can be captured only looking at all three parts of the ecological triad. Opportunity and willingness . . . encompasses all three aspects of the triad" (29). As Friedman and Starr (1997) note, the value of the framework is that "it highlights the notion that all independent variables explaining social phenomena can be characterized as either agentic or structural variables" (6). Most and Starr (1989) conceptualize interaction between agent/entity and structure/environment with the metaphor of a menu that provides "a number of behavioral choice/possibilities" that do not determine the diner/actor's choice but that limit it (28). As Friedman and Starr note, "factors based in both the agent (values, preferences, resources, etc.) and the structure (prices, size of portion, reputation for certain dishes, etc.) will make certain choices more or less likely" (6).
The framework fits the soft rationalism of the political repression literature (for example, Gurr 1986; Poe, Tate, and Keith 1999; Poe 2004; Keith and Poe 2004; Davenport 2007a, 2007c). These scholars assume that political leaders are rational actors and that they choose from a menu of repressive tools that they see as the most effective means to achieve their chief end, which is to stay in power. And I assume that the most pervasive factor that increases leaders' willingness to repress is a threat to the leaders' rule, whether real or perceived, and that the more serious the threat, the more willing state leaders are to employ repression (Keith and Poe 2004). Or, as Davenport (2007a) argues more broadly, state actors utilize actual or threatened physical sanctions in order to impose "a cost on the target as well as deterring specific activities and/or beliefs perceived to be challenging to government personnel, practices or institutions" (2); however, state actors carefully weigh the costs and benefits of engaging in repressive action, and also consider a menu of alternative mechanisms of control, as well assessing the odds of achieving their goals with these tools (4 and citations therein).
This framework is broad enough to encompass one of the long-standing debates within international relations (for example, Katzenstein 1996a, 1996b; Finnemore and Sikkink 1998) that has informed a substantial empirical literature examining a variety of human rights-related behavior—the debate over "norms versus interests" as it has been termed (Rosenblum and Saleyhan 2004). Generally, realists and rational functionalists perceive states as rational actors whose behavior is based primarily based upon narrow self-interest and is largely a function of the state's calculation of the benefits and costs (Waltz 1979; Keohane 1984). State commitments to international human rights norms are perceived as "cheap talk" (Mearsheimer 1994) that gives way to more substantive interests of the state when in conflict. Conversely, constructivists emphasize the emergence and diffusion of international human norms through networks of domestic and transnational actors, who not only shape the discourse of international human rights but also rally publics to convince states to formally accept and to adhere to these norms (for example, Keck and Sikkink 1998; Risse, Ropp, and Sikkink 1999). In addition, states are expected to comply with these norms because states have a propensity to comply with their legal obligations (Henkin 1979) or because they generally aspire to comply with the norm of pacta sunt servanda (agreements must be kept) (Chayes and Chayes 1993). These approaches fall within Most and Starr's framework in that they perceive that a regime's opportunities to use the tools of repression are either facilitated or constrained by its environment at both the domestic and international levels. In addition, the approaches assume that the willingness of a regime to employ these tools may be "intimately related to a decision maker's calculations of advantage and disadvantage, of cost and benefit, that decision makers consider on both conscious and unconscious levels," and they assume that these decision makers "see their own behavior constrained within a range of opportunities presented by the environment (governmental, domestic, and international)" (Most and Starr 1989, 34). Constructivist perspectives emphasize the transformative power of international normative discourse on human rights and on activism by transnational actors (international organizations and nongovernmental actors) who support local efforts to press for human rights commitment and who also, through repeated interactions with state actors, socialize states to accept new norms. Thus, constructivists would argue that international socialization changes both the menu of appropriate choices and the values through which the regime will evaluate the choices.
The opportunity and willingness framework is also appropriate for the public law perspective, which posits that a potentially repressive regime would be constrained by a written constitution with a bill of fundamental rights and freedoms that are protected by an independent judiciary empowered with judicial review (for example, Rosenthal 1990; Ramseyer 1994; Prillaman 2000; Mutua 2001). Written bills of rights greatly extend the reach of the rule of law and provide individual protection from the overextension of governmental power, providing new duties and standards of justice and fairness that both politicians and bureaucrats are now required to meet; and, more importantly, they represent "catalogues of very important interests and activities over which the individual rather than the state has been given final control" (Beatty 1994, 16). In addition, the law itself may serve as a socializing agent, and, coupled with a strong civil society and a judiciary that is at least somewhat independent, may cultivate a budding rights consciousness within the state (MacGuigan 1965; Martin 1991; Murphy 1993; Tate and Vallinder 1995; Epp 1998). Or, as James Madison (1788) stated, "political truths declared in that solemn manner . . . become incorporated with the national sentiment, and counteract the impulses of interest and passion" (297-300). Thus, bills of rights and a judiciary empowered with judicial review could potentially change the menu of appropriate choices, change the costs of inappropriate choices, and influence the values through which the regime will evaluate the choices.
The framework is also appropriate for the "domestic democratic peace" perspective in comparative politics. Opportunity is constrained because the structure and limited nature of democratic governments make extensive use of repression more difficult and costly to arrange. Willingness is dampened because democracy "provides citizens (at least those with political resources) the tools to oust potentially abusive leaders from office before they are able to become a serious threat" (Poe and Tate 1994, 855); thus the cost of repression is increased (Davenport 1999). Willingness is also lessened because strong democracies provide a variety of alternative mechanisms through which conflict can be channeled for possible resolution (Poe, Tate, and Keith 1999; Davenport 2007c), and it is also dampened by "the socialization processes that guide citizens of democratic polities toward the belief that nonviolent means of resolving conflicts are preferred over violence" (Poe, Tate, and Keith 1999, 293). As Davenport (1999) notes, it is not just the institutions of democracy but also "the norms (of compromise, toleration, and facilitation) accompanying these institutions" that influence the decisions of the rulers by "increasing the cost of human rights violations as well as decreasing the value to quiescence" (96). He also argues that these alternative mechanisms "weaken the justification for coercive activity by reducing the likelihood for human conflict and facilitating the conveyance of grievances" (Davenport 2007c, 11).
Here I have identified briefly some the core assumptions of the dominant theories that I believe share features that may be incorporated under Most and Starr's "organizing concepts" of opportunity and willingness. Ultimately, I argue that state actors' choices to employ the tools of repression are shaped by factors based in the agent (for example, democratic values, ideological preferences, and resources), structure (for example, competitive party system or independent judiciary), and environment (for example, domestic and external threats). These factors influence which options (tools of repression) are available or deemed appropriate as well as shape the consequences and the costs and benefits of employing the tools of repression. In Chapter 2 I address in more detail the theories of repression, and in the subsequent chapters I explore more fully specific hypotheses for the various forms of state commitment and repression.
Plan of the Book
In Chapter 2 I examine the dominant theories of political repression that span three subfields in political science, and place them within the opportunity and willingness framework. I then examine extant large-N cross-national empirical studies, place my results here within that literature, and identify their contribution to the development of that field. In Chapter 3 I address the "standard model" that has developed over time, expanding it to cover a much longer period and to reflect developments within the literature in regard to the influence of democracy and the availability of new measures of specific individual rights. Through these analyses I address more thoroughly the conflicting expectations regarding the effect of military regimes and Marxist/Marxist-Leninist regimes. I find that the standard model as a whole continues to perform in explaining a broad range of acts of political repression, and I use these base models as the foundation for analyses in the following chapters that examine that effect of the judiciary and the law on state repression. Throughout these models I control for fixed effects. In Chapter 4 I expand the standard model to account for state embeddedness in global society, examining the role of global and regional norms, the influence of international nongovernmental organizations (INGOs), and memberships in international governmental organizations and human rights treaties. I also broaden my focus to liberal economic theory and examine the influence of World Trade Organization membership, trade, and foreign direct investment. This chapter presents a substantive examination of the role of judicial independence: why states commit formally to the norm of judicial independence, whether these formal commitments make a difference, and the circumstances that shape the actual achievement of judicial independence within the state. I believe these analyses are the first systematic cross-national empirical examinations of these questions. I also present a new measure of de facto judicial independence and examine its relationship with both categories of repression. Throughout these analyses, I control for fixed effects and selection effects. I also examine interaction between judicial independence and the transnational network and domestic circumstances. In Chapter 5 I examine state bills of rights, specifically, constitutional commitments to individual freedoms and due-process rights, first examining factors that influence commitment, especially prior commitment to the International Covenant on Civil and Political Rights (ICCPR). I believe these analyses are the first large-N cross-national empirical examination of the question of why states adopt particular constitutional provisions. I then examine the influence of that commitment on repression of the specific rights promised in the provisions, controlling for selection effects, fixed effects, and examining interactions between these rights and judicial independence and the presence of INGOs. In Chapter 6 I examine thoroughly the influence of a variety of types and levels of threats to regimes on the repression of personal integrity rights and restrictions of civil liberties. Ultimately, I examine the effectiveness of state of emergency provisions in models that are conditioned on the level and type of threat. Throughout these analyses I control for fixed effects as well as selection effects. Finally, in Chapter 7 I examine the implications of the research in terms of our theoretical and empirical understanding of state repression as well as the potential policy implications of protecting human rights. I discuss candidly the limitations of these analysis and point the way forward for future research.