Judging Judicial Institutions: Courts Confronting Conflict and Contestation

Abstract

Post-conflict states often confront an environment involving communities torn apart, lives lost, infrastructure devastated, and governance structures in flux—all factors that can raise the specter of future, recurrent conflict. Policymakers and scholars view the rule of law as integral to warding off future conflict, with the judiciary being a key element of such perspectives. To date, the specific institutional arrangement of the judiciary best suited to fulfill this role has largely escaped empirical scrutiny. In this paper, in terms of promoting the rule of law, I focus on the importance of constitutional institutions that impact the degree to which judges operate within an autonomous space free from external political interference and the accessibility of judicial processes through the expansion of judicial venues, arguing that post-conflict reforms that improve these institutional dimensions should relate to a positive increase in the rule of law. To test these expectations, I construct a dataset that identifies post-conflict, constitutional reforms that either improve or diminish judicial autonomy and venue by drawing upon and supplementing constitutional data from the Comparative Constitutions Project. I find that constitutional institutions that improve the autonomy of judges correspond with a positive increase in post-conflict levels of the rule of law. In terms of overarching risk of conflict recurrence, the institutional dimension of judicial venue appears better apt in reducing the likelihood of conflict recurrence.