The Indian constitution was poised to create a new map of power, transforming the relationship between existing state agencies and new authorities. This chapter demonstrates how the individuals staffing the state apparatus were not mere spectators, passively following the constitution-making process, but actors who actively sought to influence, change, or resist the emerging constitutional order through both public and private channels. The success of the future constitution of India required a smooth transition of the organs of the colonial state to the postcolonial order. Turning their loyalty and ambitions to the new state and its constitutional order was not an obvious outcome in 1947. The chapter examines how provincial legislators sought to guard their autonomy; how the higher judiciary endeavoured to protect their judicial independence; the contested constitutional status of Delhi; and finally, how the ‘neutral’ bureaucracy who were managing the process of constitution making actively sought to defend their own jurisdiction and interests at the time. This process, which paralleled the integration of territories, led to the functional integration of the units of the state.

In this chapter, we examine how both variation in levels of judicial independence and in the partisanship of litigants affects citizens’ willingness to punish executives who ignore courts. We again test the partisanship-centered account against our theoretical framework. Leveraging the presence of abstract review in Germany, Poland, and Hungary, we demonstrate that judicial independence continues to be a prerequisite to judicial efficacy, even with the appearance of a discernible influence from partisanship. Our results in this chapter suggest that judicial review holds the promise – at least where courts have high levels of judicial independence – to constrain executives even in contexts where partisanship is heightened.

In this chapter, we examine the effects of judicial review across citizens. We find that, when courts enjoy high levels of judicial independence, their rulings’ efficacy is amplified among citizens who have a strong regard for the rule of law; when citizens have low levels of support for the rule of law, the effect of a court’s ruling is muted. For courts that lack judicial independence, even those citizens who hold the rule of law in the highest regard are unaffected by a court’s determination that that an executive’s behavior is unconstitutional. Additionally, we explain how the efficacy of judicial review varies based on the public’s approval of the executive whose policy the court reviews. Notably, we find that the public opinion constraint on executives comes from their supporters, not their opponents. These findings point to an important implication: political sympathy for the executive may not necessarily be the Achilles heel of judicial efficacy it is often portrayed to be.

This chapter ties together our theory and analyses to draw general conclusions and to chart the path for future research. We discuss the implications of our findings for the broad set of research areas we engage, including theories of judicial independence, models of executive unilateral action, and the relationship between the rule of law and democratic entrenchment. We highlight strengths and weaknesses of our findings and research design and suggest paths for other scholars to move this research forward. We see many additional opportunities to interrogate our theory and its implications in other places, on other issues, and in other settings to facilitate a broader understanding of when and how courts are efficacious.

This chapter presents our research design. First, in recognition of our theory’s emphasis on judicial independence, we select four cases – the United States, Germany, Hungary, and Poland – that vary in their levels of judicial independence but share important political, legal, and socio-economic characteristics. We use surveys of elites and the public to demonstrate that variation in judicial independence is observed by experts and citizens alike. Second, the chapter establishes the crucial role the COVID-19 pandemic plays in our research design. The global pandemic presented a unique and fleeting opportunity to probe citizens’ reactions to rule-of-law violations because it produced real threats to the rule of law in ways that were felt simultaneously and similarly around the world. Third, we discuss the benefits of using survey experiments for a study like ours. Finally, we introduce the four countries in detail, describing their general political characteristics, the institutional characteristics of their constitutional courts, and their handling of the pandemic.

Even where a public consensus exists about the appropriate bounds of constitutional action, citizens’ capacity to punish executive overreach is not guaranteed. People often lack information about possible constitutional transgressions, and imposing meaningful political penalties for overreach requires coordinated action among citizens. We argue that courts are key to overcoming these obstacles: under the right conditions, courts, through the use of judicial review, are uniquely positioned to alert the public of constitutional transgressions and thereby transform the public’s support for the rule of law into a guardrail against executive overreach. We suggest judicial independence enhances the ability of courts to signal that an executive has gone too far. By contrast, courts with low levels of judicial independence are impotent: their decisions are not credible enough to affect citizens’ attitudes. We also expect the rulings of independent courts to be most effective among citizens who have a high level of support for the rule of law and to persist even in the face of stark partisan polarization.

We open the book by discussing the rise of constitutional courts and judicial review, emphasizing their stated responsibility as guardians of the constitutional system. We discuss existing theories of judicial power and independence, highlighting the concept of judicial efficacy: the ability of courts to create political penalties for elites who fail to abide by the constitutional limits on their authority. We discuss different types of penalties courts might levy and explain why attitudinal costs – particularly a loss of public support – represent the cornerstone of judicial efficacy. We then provide a summary of our argument, contrasting our theory of judicial efficacy with existing accounts of judicial power and impact. The chapter concludes with a roadmap for the rest of the book and a summary of our key findings.

Does partisanship undermine the ability of courts to affect citizens’ attitudes? We introduce a dueling theoretical account to our own which suggests that citizens prioritize partisanship over constitutional rules when evaluating executive actions. We test these rival perspectives in Germany and the United States with a survey experiment that leverages the countries’ federal structures. We find that citizens of both countries are remarkably steadfast in their willingness to punish executives – including copartisans – for breaching constitutional limits and flouting court orders. Contrary to fears that partisanship is an overwhelmingly pernicious threat to the rule of law, we show that independent courts are resilient in their ability to cut through the binds of partisanship, to monitor executives, and coordinate public actions to reign in incumbent excess.

The public’s support for the rule of law is a key democratic value and a cornerstone concept in the study of public support for courts. We provide the most systematic analysis to date of its measurement, correlates, and stability. We validate an updated measure of the public’s support for the rule of law, drawing on original survey data. We demonstrate that support for the rule of law is highest among the most politically sophisticated and those with strong support for democratic values. Further, we draw upon thousands of survey responses in the United States and an original six-wave survey panel in Germany to demonstrate the temporal stability of the public’s support for the rule of law at both the aggregate and individual levels. Finally, we illustrate the predictive validity of our measure through the analysis of an original survey experiment.

This chapter tracks the modernisation of the extradition law of Hong Kong against the backdrop of empire-wide legal reform. In 1865–73, two explosive scandals caused imperial officials and judges to impose belated restrictions on the colonial removal of fugitives to China. The first, the case of How Yu-teen (1865), involved embarrassing allegations of British complicity in China’s violent execution of a political refugee; the second, Attorney General of Hong Kong v. Kwok-a-Sing (1873), was a habeas corpus dispute born of colonial infighting and the only extradition dispute to reach the Judicial Committee of the Privy Council in the nineteenth century. These scandals propelled Hong Kong away from the flexible and jurisdictional practice of rendition, as imperial officials ignored colonial fears of establishing a Chinese ‘Alsatia’ – a disreputable refuge for Chinese criminals. The new reality – the imperially homogenous, late-Victorian law of extradition – carried drastically heightened and irreversible expectations of individual rights and executive comportment.

This chapter discusses the right to domestic judicial protection under international human rights law. It covers the principles of legality, the right to an effective remedy, and the right to a fair trial, highlighting the importance of domestic legal mechanisms in protecting human rights. The chapter examines the legal standards and procedural safeguards for ensuring access to justice, the obligations of states to provide effective judicial protection, and the role of international bodies in monitoring compliance. It also highlights the challenges in ensuring effective judicial protection and the importance of adopting comprehensive measures to address barriers to justice and provide remedies for victims of human rights violations.

Despite being nearly universally recognised as a virtue, judicial independence has been challenged in almost all parts of the world. Some commentators even consider it to be so open to differing interpretations as to be a useless concept, that should be unpacked to its smaller components to be studied meaningfully. We are less cynical about the idea. According to our theory, judicial independence exists where powerful actors are unable or unwilling to inappropriately interfere with the workings of the judiciary. Judicial independence is thus a relational concept and always results from the interplay between the capacity and willingness of powerful actors to inappropriately interfere with the judiciary, and the capacity and willingness of judicial actors and their allies to withstand such actions. We distinguish three levels of judicial independence: de jure institutional independence, de facto institutional independence, and decisional independence. Courts are thus independent when powerful actors do not consistently impose their preferences in disputes they have a stake in, either by capturing the courts through formal changes of laws governing the judiciary, through rigging these laws in their favour, or by skewing judicial decision-making. By contrast, a dependent judiciary is the one that is captured, rigged, or skewed.