Kelsenian Courts in an Ethnic Key: A Nightmare or a Noble Dream?

Abstract

Abstract It is recognized that constitutionalism in divided societies is often strained and may require appropriate tailoring, but how far should that go? Constitutional courts – traditionally conceived as independent and impartial guardians of the constitutional order and the rule of law – seem to defeat the point of consensual decision-making settlement promised by consociational power-sharing solutions frequently recommended for deeply divided societies. One way of cutting this Gordian knot is by offering a hybrid solution, a sort of consociationalised constitutional court. The legitimacy of such an institution, in the context of a consociational political regime, is to be secured by it itself becoming a ‘power-sharing court’, strongly reflecting the salient cleavages dividing the society, and incorporating power-sharing elements in its structure and decision-making rules. In deeply divided societies where such cleavages are ethnic ones, and they often are, the constitutional court would be an ethnic court. This chapter critically examines such a model, by focusing on three such courts in Bosnia and Herzegovina, in particular the Bosnian Constitutional Court, often seen as an example of a ‘strong power-sharing court’. In particular, it considers the extent to which the standard model of the constitutional court can be bent out of shape, while retaining its original functions.