Conflict and Courts: Civil War and Judicial Independence across Democracies

• DOI: 10.1177/1065912918803200
• Author: Jacqueline Sievert,Brad Epperly
• Date: 01 September 2019
• Published date: 01 September 2019
• Subject Matter: Articles

https://doi.org/10.1177/1065912918803200

Political Research Quarterly

2019, Vol. 72(3) 700 –713

© 2018 University of Utah

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DOI: 10.1177/1065912918803200

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Article

“Inter arma silent leges”

During times of war law is silent. Or is it? Both scholar-

ship and intuition since the time of Cicero suggest the

arrival of conflict means laws binding the state, and spe-

cifically the executive, are silenced. In the modern era,

this means the ability of judges to review government

policies is diminished, either formally by law, informally

by undue influence, or by the practice of judges them-

selves. Much has been written about the trade-off between

rights and security in democracies during times of crisis,

judicial deference and delegation of decision making, and

the contraction of civil liberties during war. Yet, to date

there exists no systematic study of the relationship

between conflict and change in the formal powers of the

judicial branch or its freedom from undue influence.

Intuition and assumption have stood in place of analysis.

As such, we know far less about how the onset of conflict

affects the judicial branch’s formal and informal power

and autonomy than we might expect, and this lack of

analysis has resulted in improper expectations about the

relationship between conflict and the judiciary.

The importance of an independent judicial branch is

difficult to overstate. It can provide stability to democra-

cies, inhibiting backsliding (Gibler and Randazzo 2011);

decrease the likelihood that leaders will be punished after

leaving office, increasing regime stability (Epperly 2013);

positively affect economic growth and protect property

rights (Feld and Voigt 2003); influence treaty adoption

and implementation (Powell and Staton 2009); decrease

the likelihood of state repression and human rights viola-

tions (Keith 2002); and is a fundamental pillar of the rule

of law and an essential part of the process of a rights revo-

lution (Epp 1998). The importance of judicial indepen-

dence is further conveyed by the fact that many indices of

democracy—such as Polity and Freedom House—con-

sider it a defining attribute of democracy. Consensus

exists that it is imperative to understand how and why

states empower judicial institutions to review the constitu-

tionality of laws. Also necessary is understanding when

and why we observe change in both formal and behavioral

judicial independence, as these expansions or restrictions

can have lasting effects on civil liberties and state devel-

opment. By better understanding what precedes major

changes in judicial independence, we can better predict

when and how these changes are likely to occur.

803200PRQXXX10.1177/1065912918803200Political Research QuarterlyEpperly and Sievert

research-article2018

1University of South Carolina, Columbia, USA

2M&T Bank, Buffalo, NY, USA

Corresponding Author:

Brad Epperly, Department of Political Science, University of South

Carolina, 338 Gambrell Hall, 817 Henderson Street, Columbia, SC

29208, USA.

Email: epperlyb@mailbox.sc.edu

Conflict and Courts: Civil War and Judicial

Independence across Democracies

Brad Epperly1 and Jacqueline Sievert2

Abstract

Many argue that during conflict, executive power expands at the expense of the judiciary and civil liberties. Although

this is a common conjecture, no systematic study of conflict and judicial independence exists. We argue that conflict,

rather than strictly inhibiting independence, is instead a critical juncture that increases the possibility of institutional

change, either positive or negative. We assess this claim in three ways: cross-national analyses of (1) de facto and (2)

de jure judicial independence after the onset of conflict, and (3) a case study of statutory and jurisdictional changes

to the federal judiciary after the outbreak of the U.S. Civil War. Each illustrates that conflict onset is associated with

a higher likelihood of changing levels—both decreases and increases—rather than unidirectional decreases in judicial

independence. We then present preliminary hypotheses and analyses for three factors that, given conflict onset,

should be associated with either improved or worsened conditions for the judiciary. This study has implications for

research on conflict, courts, and the rule of law in both political science and legal studies.

Keywords

courts, conflict, judicial independence