Determinants of Judicial Institutionalization: A Study of the Post-Communist Constitutional Courts

Abstract

This study argues that institutional development of the courts is shaped primarily by the strategies of dominant political actors who attempt to maximize the congruence of the judiciary with their interests and its responsiveness to their priorities. To test this argument, this study identifies five factors – legislative fragmentation, the distribution of executive-legislative power, the transparency of the political environment, participation in the EU accession program, and direct foreign aid – which are hypothesized to affect the process of judicial reforms by altering the politicians’ interests, bargaining power, and the degree of electoral uncertainty. As an empirical test of these hypotheses, this paper examines institutionalization of 22 post-communist constitutional courts, from the beginning of the transition period through 2005. The findings suggest that there is a non-linear relationship between legislative fragmentation and judicial empowerment. In addition, this study finds that the participation in the EU accession program and executive power have an important impact on the development of viable constitutional courts. Transparent environment and foreign direct aid, on the other hand, do not exert a significant impact on the development of post-communist courts.