Judges’ independence under constraints: A strategic approach to the Chilean case

The study of Judicial Independence (JI) is pivotal in empirical legal research, as it is considered an essential condition for the separation of powers and the rule of law. However, existing research predominantly focuses on the JI of the judiciary and higher courts, overlooking the independence of individual judges in lower courts. Bridging this gap will contribute to understanding how practices, culture, and strategies generate judicial outcomes beyond formal incentives (Dyevre, 2010; Pozas-Loyo & Ríos-Figueroa, 2022), aspects often neglected in constitutional design. Understanding which norms and practices all together enhance or restrict JI (Kosař, 2016; Spáč et al., 2018), the opposite JI outcomes of identical rules in different countries (Urbániková & Šipulová, 2018), and the failure of judicial reforms due to actors' adaptability or informal institutions (Helmke & Levitsky, 2004; Pozas-Loyo & Ríos-Figueroa, 2022), will increase the chances of having a judiciary balanced in independence and accountability. These complexities suit the Chilean case, where constitutional reforms to the judicial government have been recently discussed without a clear consensus. With a hierarchical design typical of authoritarian regimes (Bordalí, 2013), Chile provides an excellent case study, with both de jure and de facto dimensions setting a scenario of strong constraints to judges' decision-making (Hilbink, 2007). Academics, political actors, and the Supreme Court (at least in the media) share the idea of stripping higher court judges of their judicial governance powers. To Couso and Hilbink (2011), these attributes explain the difference between the Chilean judiciary and its counterparts in Latin America: conservatism and a deficient defense of citizens' rights. The paper will set the foundations for a study within this framework and outlines the methodological specifics of the research. To address JI in Chile, the project aims to build a game-theory model suitable for understanding actors with conflicting interests and interdependent choices, such as judges' of different hierarchies, capturing their interaction and incentives when adjudicating, considering variables such as tenure, stability, ideology, promotion, disciplinary sanctions, among others. This approach has been used in Latin America to study judges' responses to the political landscape (Helmke & Staton, 2011; Rodríguez-Raga, 2011), pendent exploring the JI interactions within a judiciary.