SUMMARY: Power Sharing and the Rule of Law in the Aftermath of Civil War

In “Power Sharing and the Rule of Law in the Aftermath of Civil War,” Caroline A. Hartzell and Matthew Hoddie argue that power-sharing measures used in post-civil war settlements may form a more workable foundation for rule of law growth than importing traditional Western systems and institutions. The reasoning behind their conclusion is that power-sharing institutions provide key political actors with a degree of security that makes them more willing to develop and act within the rule of law, thereby restraining politically dominant actors.

The authors point to studies indicating that, in post-civil conflict states, the post-Cold War paradigm of applying a multi-pronged approach to establishing rule of law through efforts to improve security, democracy, development, and human rights simultaneously has been ineffective at producing lasting results. The authors posit that these efforts fall short, in part, because rule of law practitioners focus on replicating the same systems and institutions that produce rule of law in Western countries rather than focusing on the basic need to move past internal conflict. Focusing on establishing “minimalist” rule of law (concerned with ensuring laws are predictable and non-arbitrary), as opposed to “maximalist” rule of law (concerned with the law’s ability to ensure the rights of individuals), the authors suggest a better path forward would be for rule of law practitioners to utilize post-conflict power-sharing institutions as a basis for continued rule of law growth. These measures, frequently used in settlements designed to end civil war, distribute elements of state power among rival groups, thereby ensuring that no single group has a monopoly.

To test their hypothesis, the authors analyzed a set of post-civil war states from 1948 through 2006, focusing only on the years post-conflict that each state remained at peace.  The authors use de facto judicial independence, as measured by Linzer and Staton, as a proxy for rule of law and conducted a quantitative study that examined the effect of three categories of variables on judicial independence: conditions beyond power sharing that were associated with cessation of the civil conflict, post-war economic and political contexts, and the form and degree of international influence on the post-war state. Across eight different quantitative models, the authors found countries that adopted power-sharing institutions post-civil war had higher de facto judicial independence scores than similarly situated countries that used no or few power sharing measures post-conflict.

While the authors concede that adopting power-sharing institutions will not automatically create high-functioning rule of law systems, their results suggest that power sharing does increase judicial independence in the years immediately following civil conflict. The authors opine that this “thin” measure of rule of law could form a more effective bedrock for robust rule of law than attempting to graft Western institutions onto post-conflict countries. The authors conclude that, while their research is not definitive and further investigation is needed, rule of law practitioners should consider shifting their focus from importing Western institutions and instead focus on facilitating and strengthening power-sharing agreements in post-conflict countries.

NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).

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