Current Research Projects

Judges After Transitions: Achieving Legitimacy Within the Rule of Law

An independent judiciary is a fundamental requirement of every transitional society.  Yet this key ingredient of the rule of law is frequently made difficult or impossible by the fact that judges of the old regime are still in place.  Apart from being tainted by their collaboration with the values of the past, they are often unable or unwilling to further the mission of the new dispensation, sometimes deliberately compromising or undermining it.  There are risks, therefore, in keeping the previous judges in place, but also obvious risks of reviving dissension in replacing them.

Various techniques and arrangements have been used to overcome this dilemma, which is crucial to the just outcomes of disputes between individuals and, particularly, between the individual and the state. Although each political and legal culture is different, there is much to learn from the successes and failures of methods used to deal with the old judiciary after the Second World War in Europe; in Latin America after military rule; in Central and Eastern Europe and the Balkans after the fall of the Soviet Union; and in parts of Asia and Africa (particularly South Africa and Kenya).  It is currently a live issue in the Middle East, North Africa, Myanmar and Nepal.

This project will produce a set of policy options, each with its different variations, costs and benefits, designed to assist future societies facing this inevitable problem. Most internationally-supported judicial reform initiatives have tended to shy away from the core challenges of dealing with an incumbent judiciary that is illegitimate or corrupt, concentrating instead on technical assistance measures such as improving court infrastructure or judicial training and sometimes on new ways of appointing judges. The foundation for our recommendations will be a set of case studies, which will be both geographically diverse and representative of different possible responses such as retention subject to natural attrition, the lustration, vetting or reappointment of judges, investigations of the judiciary by truth commissions and the establishment of new courts including constitutional courts and external appellate courts.  Each case study will consider the national context including the track record of the incumbent judiciary and the availability of resources and trained legal personnel to replace them, the policy options that were debated and whether those eventually adopted had the effect of strengthening or undermining the rule of law.  This contextual approach is designed to ensure the practical relevance of the set of policy options for countries now undertaking or embarking upon a transition.

Partner: Bingham Centre for the Rule of Law with the collaboration of the Council of Europe’s Commission for Democracy through Law (Venice Commission).

Steering Committee: Sujit Choudhry (Constitutional Transitions), Barry Friedman (Constitutional Transitions), Jeffrey Jowell (Bingham Centre), Christina Murray (University of Cape Town), Justice Kate O’Regan (formerly Constitutional Court of South Africa), and Jan van Zyl Smit (Bingham Centre).

Experts: We are currently in the process of recruiting a network of 17-18 experts who have firsthand experience of this issue as policymakers, advisors from international finance and technical co-operation bodies, judges, or academics with policy experience.

Outputs: Policy manual for judiciary reforms; an edited volume combining case studies, thematic papers and a broad overview; and online working papers available freely online.

Status: Country experts so far confirmed are undertaking research.