Domestic legal traditions and states’ human rights practices
| Author | Mary K Spellman,Sara McLaughlin Mitchell,Jonathan J Ring |
| Published date | 01 March 2013 |
| DOI | 10.1177/0022343312466561 |
| Date | 01 March 2013 |
| Subject Matter | Research Articles |
Domestic legal traditions and states’
human rights practices
Sara McLaughlin Mitchell
Department of Political Science, University of Iowa
Jonathan J Ring
Department of Political Science, University of Iowa
Mary K Spellman
Spellman Law, PC, West Des Moines, Iowa
Abstract
Empirical analyses of domestic legal traditions inthe social science literature demonstrate that common law states have
better economic freedoms, stronger investor protection, more developed capital markets, and better property rights
protection than states with civil law, Islamic law, or mixed legal traditions. This article expands upon the literature
by examining the relationship between domestic legal traditions and human rights practices. The primary hypothesis
is that common law stateshave better human rights practices on average than civil law, Islamic law, or mixed law states
because the procedural features of common law such as the adversarial trial system, the reliance on oral argumentation,
and stare decisisresult in greater judicial independence andprotection of individual rights in these legalsystems. We also
examine how the quality of a state’s legal system influences repression focusing on colonial legacy, judicial indepen-
dence, and the rule of law. A global cross-national analysis of state-years from 1976 to 2006 shows that states with
common law traditions engage in better human rights practices than states with other legal systems. This result holds
when controlling for the quality of the legal system and standard explanations for states’ human rights practices
(economic growth, regime type, population size, military regime, and war involvement).
Keywords
civil law, colonial legacy, common law, human rights, Islamic law
Human rights scholarship has made great strides in seek-
ing to explain variance in states’ human rights practices.
Political and economic factors have been shown to signif-
icantly influence states’ willingness to employ political
terror (Mitchell & McCormick, 1988; Henderson,
1991; Poe & Tate, 1994; Davenport, 1995; Poe, Tate
& Keith, 1999).
1
Recent human rights research has
explored domestic legal explanations of state repression,
focusing on differences across types of domestic legal sys-
tems, the extent to which the rule of law operates domes-
tically, and the level of judicial independence (Cross,
1999; Peerenboom, 2004; Keith & Ogundele, 2007).
This relates to a broader research agenda that links the
characteristics of domestic legal systems to economic and
political outcomes, such as economic growth, rule of
law, institutional quality, corruption, democracy, and
1
We define violations of human rights more explicitly in the research
design section. We focus on states’ violations of personal integrity
rights, including freedom from extrajudicial killing, disappearance,
torture, and individuals’ political imprisonment at the hands of
their governments.
Corresponding author:
sara-mitchell@uiowa.edu
Journal of Peace Research
50(2) 189–202
ªThe Author(s) 2013
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DOI: 10.1177/0022343312466561
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