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

Law & Society Review, Volume 50, No. 4, pp. 822-855, September 2016

Queen's University Belfast Law Research Paper No. 13

34 Pages Posted: 22 Jun 2016 Last revised: 19 Dec 2016

See all articles by Alex Schwartz

Alex Schwartz

The University of Hong Kong - Faculty of Law

Melanie Murchison

University of Wisconsin - Madison - Department of Sociology

Date Written: June 20, 2016

Abstract

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 independence and impartiality. With reference to the decisions of the Constitutional Court of Bosnia-Herzegovina, this article investigates the influence of ethno-nationalism on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original 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-nationalism on judicial behaviour. Moreover, our findings suggest that the longer a judge serves on the Court the more ethno-national affiliation seems to influence her decision-making. We conclude by considering how alternative arrangements for the selection and tenure of judges might help to ameliorate this problem.

Keywords: Constitutional Courts, Judicial Behavior, Judicial Independence, Judicial Impartiality, Judicial Politics, Bosnia-Herzegovina, Divided Societies, Acclimation Effects, Empirical Legal Studies

Suggested Citation

Schwartz, Alex and Murchison, Melanie, Judicial Impartiality and Independence in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia-Herzegovina (June 20, 2016). Law & Society Review, Volume 50, No. 4, pp. 822-855, September 2016; Queen's University Belfast Law Research Paper No. 13. Available at SSRN: https://ssrn.com/abstract=2798185

Alex Schwartz (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

Melanie Murchison

University of Wisconsin - Madison - Department of Sociology ( email )

Madison, WI 53706
United States

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