The Role of Domestic Courts for Consociational Systems of Power-Sharing

Sophia Schröder

Consociational settlements are often negotiated after violent conflict and various communities have to be accommodated. Cooperation between political elites is an essential characteristic in consociational theory – necessary to both the establishment of a stable political system as well as its persistence (Lijphart 1977). However, when these elites clash on vital interest, courts may be asked to resolve these conflicts. In addition, these elites benefit from consociational agreements and are therefore often interested in maintaining cleavages between the various groups and perpetuating the identities that constitute the underlying foundations of the system. Those who seek to challenge the identity-based order may then make use of the judicial route, claiming an infringement of their human rights (McCrudden & O’Leary, 2013). In light of this, the courts’ role within the political set-up deserves closer examination, especially because they too are subject to consociational design.

With the aim of discerning how courts function and what role they play in consociational systems, Sophia’s research takes a socio-legal approach and goes beyond the traditional legal doctrinal analysis in order to get a more comprehensive perspective on the relationship between the judicial branch, the political set-up and political stability. In addition, using a comparative approach is deemed as the most effective way of studying systematically common patterns and challenges of the courts’ ability in regulating conflict and of analysing the effect of variations in consociational design. Hence, she examines two deeply divided societies that have adopted a consociational system: Northern Ireland and Lebanon.

Case-law analysis from Northern Irelands suggests that courts in consociations display a ‘making power-sharing work’ attitude instead of unwinding ethnic political. Courts uphold and reinforce consociational features, break deadlocks, and manage – to a certain extent – sectarian conflict. Judges turn into guardians and umpires for consociational regimes for a variety of reasons, which include the institutional context and judges’ background as well as their socialisation into the legal profession. In addition, interviews with key actors have revealed so far that judicial role performance in consociations is also shaped by the role that political actors and lobby groups ascribe to the courts, and how they strategically make use of them.

Sophia completed her fieldwork in Northern Ireland and is now in Lebanon for more data collection. She has made extensive use of the OIB library, accessed judgments that are difficult to get hold of and interviewed key actors, incl. politicians and judges, on their take on the courts’ role for power-sharing.

Her research seeks to contribute to an emerging literature on the role of courts in consociations and to help ‘bridge comparative politics and comparative constitutional law through a genuinely interdisciplinary conversation’ (Choudhry 2008). Overall, the research draws on and seeks to contribute to comparative constitutional law as well as to the broader field of comparative politics on power-sharing in deeply divided societies.

Exploring the dynamics between the courts and the other branches of government in consociations through a comparative qualitative approach does not only offer the opportunity to acquire a new perspective on these political systems but is also of important relevance to post-conflict constitution-making. In addition, it is also of highly actual debate. Consociationalism has been the favourite prescription of constitutional practitioners – and in particular international actors – for peace settlements in divided places like Cyprus and Iraq (Wolff and Yakinthou 2011). Identifying challenges and best practices and learning from previous consociational experiences with respect to the judiciary could ultimately aid the making of post-conflict constitutional design choices for other deeply divided societies in the future, contributing to both conflict prevention and resolution.