Judicial Impartiality and Independence in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia‐Herzegovina

• Date: 01 December 2016
• DOI: http://doi.org/10.1111/lasr.12237
• Published date: 01 December 2016

Judicial Impartiality and Independence in Divided

Societies: An Empirical Analysis of the

Constitutional Court of Bosnia-Herzegovina

Alex Schwartz Melanie Janelle Murchison

The role of constitutional courts in deeply divided societies is complicated by

the danger that the salient societal cleavages may influence judicial decision-

making and, consequently, undermine judicial impartiality and indepen-

dence. With reference to the decisions of the Constitutional Court of Bosnia-

Herzegovina, this article investigates the influence of ethno-national affiliation

on judicial behaviour and the extent to which variation in judicial tenure

amplifies or dampens that influence. Based on a statistical analysis of an origi-

nal dataset of the Court’s decisions, we find that the judges do in fact divide

predictably along ethno-national lines, at least in certain types of cases, and

that these divisions cannot be reduced to a residual loyalty to their appointing

political parties. Contrary to some theoretical expectations, however, we find

that long-term tenure does little to dampen the influence of ethno-national

affiliation on judicial behaviour.Moreover, our findings suggest that this influ-

ence may actually increase as a judge acclimates to the dynamics of a divided

court. We conclude by considering how alternative arrangements for the

selection and tenure of judges might help to ameliorate this problem.

The challenge of designing institutions to manage ethno-

national conflict is a long-running topic of academic inquiry and

dispute (see Horowitz 1985; Lijphart 1977; McGarry and

O’Leary 2007). Generally speaking, the focus is on how legisla-

tures, executives, and electoral systems can be organized to

accommodate the politics of deeply divided societies (Choudhry

2008). The design of courts figures much less frequently in this

This article was published online on 7 November 2016. An error was subsequently

identified. This notice is included in the online and print versions to indicate that both

have been corrected 10 November 2016.

Research for this article was facilitated by a British Academy-Leverhulme grant. We

presented earlier versions of our findings at annual meetings of the American Political Sci-

ence Association (2014, Washington, DC) and the International Political Science Associa-

tion (2014, Montreal). We thank Ganimete Asllani-Price for her research assistance and

Damir Banovic

´, David Feldman, Nedim Kulenovic

´, Joseph Marko, Christopher McCrud-

den, Brendan O’Leary, and Zoran Oklopcic for their helpful comments and insight. We

owe a special debt of gratitude to Christopher Raymond for his very generous advice and

constructive criticism. We also thank the anonymous reviewers for helping us to improve

the analysis considerably.Any err ors are entirely ourown.

Please direct all correspondence to Alex Schwartz, School of Law, Main Site Tower,

Queen’s University Belfast, Northern Ireland BT7 1NN; e-mail: a.schwartz@qub.ac.uk.

Law & Society Review, Volume 50, Number 4 (2016)

V

C2016 Law and Society Association. All rights reserved.

821

literature (for some exceptions, see Choudhry and Stacey 2012;

Horowitz 2006; Issacharoff 2015; McCrudden and O’Leary 2013).

But courts, particularly constitutional courts, may play a vital role

in such contexts. Although inter-group trust is likely to be fragile in

the wake of conflict, courts may help to make constitutional com-

mitments to group autonomy and the protection of minority rights

more credible than they might otherwise be (see Lake and Roth-

child 1996; North and Weingast 1989). Furthermore, any constitu-

tional settlement of any complexity will inevitably generate

disputes about the meaning and implication of its terms. Where

disagreement cannot be resolved politically, a constitutional court

offers a potential focal point to coordinate a solution and, hopeful-

ly, avoid constitutional collapse (see Elkins, Ginsburg, and Melton

2009: 107–08; Ginsburg 2012: 725). Both of these functions

require the court to be, or at least appear to be, sufficiently impar-

tial and independent with respect to rival ethno-political factions.

Although judicial impartiality and independence are often con-

flated (see Karlan 1999; Tiede 2006), the two can be usefully distin-

guished. We can define “judicial impartiality” as the extent to

which judges are unmoved by prejudices or ideological biases that

might incline them to decide a dispute one way or the other. In

contrast, “judicial independence” can be defined as the extent to

which judges are insulated from threats and incentives that might

motivate them to decide a dispute one way or the other (regardless

of the legal merits and their own sincere preferences). Each of

these qualities is associated with a distinct aspect of court design. As

Brinks and Blass (2016) explain, the design of courts varies with

respect to what they call “ex ante autonomy” and “ex post autono-

my.” The former concerns the scope for political actors to influence

the political biases of the court through the appointment of

“ideological allies” (Brinks and Blass 2016: 5) and therefore affects

judicial impartiality. The latter concerns the extent to which politi-

cal or other external actors can pressure judges to decide a case

one way or the other and therefore goes to judicial independence.

Neither the impartiality nor the independence of constitu-

tional courts can be taken for granted. Even in relatively homoge-

nous democracies, constitutional courts are often seen to be

highly politicized in terms of their appointment processes, deci-

sionmaking, and the kinds of cases they hear (Amaral-Garcia,

Garoupa, and Grembi 2009; Garoupa, Gomez-Pomar, and

Grembi 2013; H€

onnige 2009). But courts in deeply divided poli-

ties face special dangers and challenges, particularly in the wake

of conflict where the rule of law is weak (Haggard and Tiede

2014). Minorities may worry that the court will be indefinitely

captured by the majority and, consequently, have little or no con-

fidence in the court’s ability to protect their rights and interests

822 Judicial Impartiality and Independence in Divided Societies

(Sadurski 2014: 304–28). Furthermore, assuming that dissenting

opinions are made public, conspicuous ethnic or ethno-national

divisions within the court may undermine its image as a neutral

arbiter of constitutional dispute (Garoupa and Ginsburg 2011).

Thus, to the extent that it might affect judicial impartiality and

independence, the design of a constitutional court in a deeply

divided society may be nearly as important to the success of a

constitutional settlement as the substance of the settlement itself.

Indeed, the conventional wisdom, in both academic and policy

circles, is that the design of courts does make a difference. Merit-

based selection systems are favored over party-political appoint-

ment processes on the grounds that they are more likely to select

better qualified and more impartial judges (see Ginsburg and

Garoupa 2009; Reddick 2001; Volcansek 2007). Life or long-term

tenure is thought to enhance judicial independence by insulating

judges from careerist pressures and incentives to placate political

elites (see Jackson 2007; La Porta et al. 2004). These suppositions

have recently been subjected to some rigorous comparative

research (Hayo and Voigt 2007; Melton and Ginsburg 2014),

1

but the challenge of achieving judicial impartiality and indepen-

dence in ethnically or ethno-nationally divided polities remains

virtually uncharted research territory.

With reference to the experience of the Constitutional Court

of Bosnia-Herzegovina, we investigate the relationship between

ethno-national affiliation and judicial behavior and the extent to

which variation in judicial tenure amplifies or dampens that rela-

tionship.

2

The Bosnian Constitutional Court is a particularly

interesting case-study for several reasons. Firstly, it provides a

window into the challenges facing recently empowered courts in

transitional and post-conflict settings. The study of courts in con-

texts where the rule of law is relatively tenuous may help illumi-

nate the factors that determine how and why some courts

become “consequential” while others remain marginal or

1

As we discuss below, the results of this research are mixed with respect to how and to

what extent the design of courts affects judicial behavior.

2

Our approach assumes, as countless other studies do, that quantitative analysis

allows for valid causal inference about the factors that affect judicial behavior. However,we

recognize that some would argue that ethno-national background, in so far as it is an immu-

table personal characteristic akin to race or sex, cannot be treated as a true causal variable

because it cannot be conceptualised as a “treatment,” i.e., a property that is, at least hypo-

thetically,amenable to “manipulation” (see Boyd et al. 2010; Greiner and Rubin 2011). This

interpretation of causal inference is not accepted by everyone (see Marcellesi 2013; Sen and

Wasow 2016). We are agnostic about the right way to conceptualise variables of this kind

but, for the sake of convenience, the discussion that follows sometimes refers to the

“influence” or “effect” of ethno-national affiliation on judicial behavior. The reader may

elect to interpret such statements as propositions about “relationships” between variables

(as opposed to true “causal effects”).

Schwartz & Murchison 823