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 Rudden 1995). 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.7 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