Alex Schwartz on Judicial Power and Consociational Federation: The Bosnian Example (Federal Law Review)

"Judicial Power and Consociational Federation: The Bosnian Example"

Alex Schwartz

Federal Law Review
2018, v. 46 n. 4, pp. 631-644

Abstract: 

An influential theory, sometimes called the ‘fragmentation hypothesis’, proposes that divided political systems will tend to empower courts because they make it more difficult for political elites to coordinate court-curbing retaliation. Another influential perspective proposes that federal systems are conducive to judicial empowerment because they create a demand for the authoritative adjudication of jurisdictional boundaries and/or they facilitate judicial supremacy over constitutional meaning. If both of these theories are correct, we might expect consociational (ie, power sharing) federations to be especially hospitable to the emergence of powerful courts. With reference to the example of Bosnia-Herzegovina, this article questions this conclusion; it is theorized here that core features of consociational federation will tend to undermine the growth and maintenance of judicial power.

Alex Schwartz on International Judges on Constitutional Courts: Cautionary Evidence from Post-Conflict Bosnia (Law & Social Inquiry)

"International Judges on Constitutional Courts: Cautionary Evidence from Post-Conflict Bosnia"
Alex Schwartz
Law & Social Inquiry
November 2017

Abstract: Hybrid constitutional courts are associated with deeply divided and post-conflict contexts where the impartiality of the domestic judiciary is suspect. Such courts enlist international (i.e., foreign) judges to create an ostensibly neutral counterbalance to the presumed political biases of local judges. This mixed-methods case study of the Constitutional Court of Bosnia-Herzegovina questions the value of these hybrid courts. Contrary to what might be expected, the results of multidimensional scaling indicate that Bosnia's foreign judges have not provided a reliable counterbalance to apparent ethno-national divisions on the Court. Furthermore, qualitative analysis suggests that the foreign judges have contributed to several strategic mistakes that have probably harmed the Court's tenuous authority. It is also suggested that the presence of international judges on constitutional courts may actually discourage the kind of strategic behavior that is needed to build and sustain judicial power, particularly in deeply divided and post-conflict contexts.