Courts are increasingly obliged to adjudicate upon challenges to allocative decisions in healthcare, but their involvement continues to be regarded with unease, imperilling the legitimacy of the judicial role in this context. A central reason for this is that judges are perceived to lack sufficient expertise to determine allocative questions. This article critically appraises the claim of lack of judicial expertise through an examination of the various components of a limit-setting decision. It is argued that the inexpertise argument is (...) weak when compared with other rationales for judicial restraint, such as the procedural unsuitability and lack of constitutional competence of courts. (shrink)

This study investigates the interrelation of outer appearance and spatial configuration of modern Chinese court buildings with the party-state’s strategy of building regime legitimacy. The spatial element of this relation is explored in four different court buildings in Kunming, Chongqing, Shanghai and Xi’an. It is argued that court buildings contribute to the empowerment of individuals who appear as parties in trials. Courthouses also facilitate the courts’ function of exercising social control and the application of an instrumentalist (...) approach to the principle of public trials. Both the grounding of court buildings in the past and their compliance with international models of a modern independent judiciary are aspects of consolidating regime legitimacy. (shrink)

This Article explores the relationship between the legitimacy of international courts and expansive judicial lawmaking. We compare lawmaking by three regional integration courts - the Court of Justice of the European Union, the Andean Tribunal of Justice, and the ECOWAS Community Court of Justice. These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The CJEU is the most activist, (...) but its audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more cautious, but there is little to suggest that this caution has enhanced the legitimacy of either court. The ATJ has avoided serious challenges from governments, but its rulings have had little political impact. Conversely, the ECCJ’s circumspection has not shielded it from political opposition to its adjudication of clearly-established human rights. This pattern is at odds with the oft-voiced conventional wisdom that expansive judicial lawmaking undermines judicial legitimacy. Our modest goal in this Article is to problematize that claim and to posit an alternative hypothesis - that ICs spark legitimacy challenges due to the domestic political effects of their decisions, regardless of whether those decisions are expansionist. (shrink)

Journal of Social Philosophy, Volume 52, Issue 4, Page 491-515, Winter 2021.

International courts are an integral component of the international legal system. These courts have been proliferating over time and increasingly working to ensure state compliance with the rules of the international regulatory regimes they join. However, these courts face a fundamental challenge: while they can rule against governments in violation of the regime’s rules, they cannot enforce those decisions. Working from the first principle that the regulatory regime is designed to help resolve collective action problems among the signees, this Article (...) proposes a formal model of international court influence that helps to explain the extent and limits of international court influence on national government behavior. (shrink)

In 1935, when the U.S. Supreme Court’s new building opened and displayed the phrase “Equal Justice Under Law,” racial segregation was commonplace, as were barriers limiting opportunities for men and women of all colors to participate in economic and political life. The justices on the Court and the lawyers appearing before them reflected those facts; almost all were white men. Today, the Supreme Court’s inscription has become its motto, read as if it always referenced an understanding of (...) equality that has become central to the identity and the legitimacy of courts. The judiciary “looks” somewhat different than it did and, in a sense, has become more “representative” of the range of people appearing in courts. Given the role that courts had played in sustaining discrimination, the impression that courts ought to welcome everyone is a major achievement. Yet, to assess the impact of new judicial demographics requires analysis of other major alterations in U.S. courts—the influx of diverse litigants newly entitled to pursue legal claims; the economic barriers facing many claimants; the emergence of judiciaries as agency-like promoters of agendas; and the displacement of public adjudication through the privatization of dispute resolution. Studies of women as judges focus mostly on their rulings, but probing the “difference that difference makes” requires looking beyond judicial opinions. Courts in the United States have developed structural capacities to propose rules and legislation, create education programs, commission research and task forces, and lobby for resources. When women of all colors and men of color became lawyers and judges, they created affinity organizations and pressed courts to research court-based bias and to revise rules of ethics, doctrine, and practice. Those changes are part of the impact of diversification within the legal profession, as is the backlash against affirmative efforts to reform practices. Another difference of the last decades is that new rights have brought into court many claimants with limited means. Participatory participation remains elusive, while the “justice gap” is pervasive. Worse yet, in some jurisdictions, courts have served as “revenue centers,” using court-imposed assessments as income. Failure to pay “legal financial obligations” can result in suspension of driver’s licenses, the loss of voting rights, and other sanctions levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality. In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public. Through doctrine and rules, U.S. courts have shifted their own practices as well as enforced mandates imposed on consumers and employers that push them out of court and out of class or joint actions. In sum, the new faces on the bench ought not to obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice. (shrink)

How can international courts better establish their legitimacy? We can better answer this question by first focusing on what scholars have learned about how national courts build legitimacy over time. The literature suggests that national courts strategically build legitimacy by balancing their own policy preferences with those of their audiences. In so doing, they attempt to avoid instances of court curbing that can diminish legitimacy over the long run. Applying a similar strategy may be more (...) difficult for international courts for two key reasons: they serve audiences with more diverse preferences than national courts; they are less likely to be able to predict which rulings will result in significant backlashes from these audiences. (shrink)

International courts strive to enhance their legitimacy, that is, they would like the members of the international community to perceive their judgments as just, correct and unbiased even if they do not agree with their specific content. This Article argues that international courts take into account the actors they interact with, the norms they apply, and the conditions they operate under as they try to enhance their legitimacy. It demonstrates strategic behavior towards that end in the judgments of (...) two prominent international courts - the International Court of Justice and the European Court of Human Rights. International courts interact with states under their jurisdiction and with their national courts. International courts try to preserve their legitimacy vis-à-vis states; at the same time, they want to signal that states will comply with them even if they issue judgments states disagree with. International courts can cooperate with national courts and gain legitimacy from interacting with legitimate national courts. The norms that international courts apply constrain their ability to maneuver their judgments in ways that can help their legitimacy, but at the same time help legitimize their judgments. International courts use various tactics to shape their reasoning in order to improve their legitimacy. The behavior of international courts is scrutinized by the domestic public within each state. That public has certain agendas, priorities and preferences. The domestic public’s agenda is a condition that the court must respond to, but sometimes courts can also shape that agenda to their benefit. (shrink)

Public legitimacy consists of beliefs among the mass public that an international court has the right to exercise authority in a certain domain. If publics strongly support such authority, it may be more difficult for governments to undermine an international court that takes controversial decisions. However, early studies found that while a majority of the public trusts international courts, this was based on weak attitudes derivative from more general legal values and support for the international institutions. I (...) reexamine these claims with data for European courts, the International Criminal Court, and the International Court of Justice. First, using Google search data and media-analysis I find that, at least in Europe, information-seeking about international courts has increased and is at similar levels to national high courts and prominent international institutions. Second, trust in international courts remains strongly correlated with trust in international and domestic institutions. Countries in which more individuals trust their national courts are also countries in which more individuals trust international courts. Individuals who trust their national courts more are also more trusting of international courts. This undermines at least some interpretations of the credible commitment argument: in the minds of the general public, international courts may not be substitutes for poorly performing domestic courts, but extensions of a functioning rule of law system that they already trust. (shrink)

Many international courts have developed into institutions of public authority; this begs the question of their legitimation. This Article addresses their democratic legitimation and argues that Articles 9-12 of the E.U. Treaty provide a promising blueprint for its conceptualization, fusing theories focused on representation, participation and deliberation. This fusion points the way towards conceiving and developing the democratic credentials of institutions beyond the state in general. Soft law used by international judges, their election, procedure and reasoning will appear in a (...) new light. (shrink)

The present study aims to extend research on the role of values for the perceived legitimacy of legal authorities by focusing on (1) supranational legal authorities and (2) a broad range of values. We examine how (alignment between) people’s personal values and their perception of the values of the European Union (EU) are related to perceived legitimacy of the Court of Justice of the EU (CJEU) and the EU more broadly. Inspired by moral foundations theory, we distinguish (...) between individualizing (i.e., “democracy”, “liberty”, and “fairness”) and binding values (i.e., “rule of law”, “respect for national authority”, and “respect for tradition”). An online survey was conducted in six EU member states (N = 1,136). A factor analysis confirmed a two-factor model (individualizing vs. binding values) for both personal values and perceived EU values. Four regression models were run for each of the value factors, including personal values, perceived EU values, and their interaction, on each of the outcomes (i.e., perceived CJEU and EU legitimacy). Perceived endorsement by the EU of both individualizing and binding values predicted higher legitimacy perceptions of the CJEU and EU. Furthermore, personal binding values had a negative effect on perceived EU legitimacy when participants perceived the EU to weakly support binding values, but a positive effect when the EU was perceived to strongly support binding values. The results suggest that value alignment plays an important role in perceived legitimacy of the CJEU and EU, and that better representing binding values might be a strategy to improve perceived EU legitimacy. (shrink)

Journal of Political Philosophy, EarlyView.

The Supreme Court’s antiabortion opinion in Dobbs v. Jackson Women’s Health Org., which overruled Roe v. Wade and Planned Parenthood of S.E. Penn. v. Casey, on the one-hand suggests that the Court may be moving toward eliminating all non-enumerated fundamental rights not deeply rooted in the Nation’s longstanding history and tradition. On the other hand, it may suggest only that the Court might be just opening the door to overruling specific non-enumerated rights with which it no longer (...) agrees. Either way, many long-recognized, non-enumerated, human rights, beyond abortion that are essential to individual autonomy and human dignity are now up for grabs. Such rights in the area of privacy law will most likely include not just abortion, but also contraception, interracial marriage, and the Court’s more recent recognition of same-sex marriage, and possibly still other precedents, including whether states can criminalize adult consensual same-sex behavior in private. More importantly, the proposed foundation for this Court’s potential departure from its past case precedents cannot be justified even by claiming such rights are not deeply rooted in the Nation’s history and tradition. As I hope to show in this article, neither from the point of view of looking to this Nation’s longstanding history and traditions, if properly understood, nor from the point of view of allowing Equal Protection to aide in identifying forms of discrimination not previously recognized or afforded much attention, can departures from past human rights precedents based in autonomy be justified. (shrink)

My text offers an attempt to justify theoretically the existence of an important pillar of contemporary constitutional democracy: judicial review. Why do Supreme and Constitutional Courts that are not electorally accountable organs have the power to modify and occasionally cancel from the books statutory legislation passed by elected and accountable representatives? The argument presented discusses and questions the standard doctrine of the separation of powers and is based on the foundations of modern political authority as the agency the function of (...) which is to protect and guarantee citizens’ rights. (shrink)

This volume addresses the normative legitimacy of the international order, asking how we can make sense of legitimacy claims of increasingly diverse global governance institutions and practices and how their legitimacy relates to and differs from state legitimacy. -/- State legitimacy is a central concern of modern political thought but is inadequate when applied to institutions that differ from the state in type, level of governance, scope, and much else. We need a new, tailored approach (...) to the legitimacy of institutions beyond the state, especially international and transnational institutions. Such an approach includes foundational questions: what does it mean for institutions to be legitimate that have radically different purposes, means, interests, capacities, constituents, and roles from states? And what standards do such institutions have to meet in order to count as legitimate? The contributions to this volume seek to advance the debate on these questions at both abstract and more concrete levels. They range from conceptual questions about the nature of legitimacy and international institutions, to rule of law, to the legitimacy of the UN Security Council, the International Criminal Court, and occupying military forces in the face of challenges specific to their nature and context. Together they demonstrate both the promise and challenges of theorizing legitimacy beyond the state. -/- The chapters in this book were originally published as a special issue of the journal Critical Review of International Social and Political Philosophy. (shrink)

How is legitimacy to be secured for constitution-like legal orders operating beyond the state? Some scholars recommend connecting aspects of global law to human rights adjudication and enforcement by adopting their preferred method for resolving conflicts, namely, proportionality analysis. Adopting a frame of analysis widely embraced by apex courts might generate the requisite regime legitimacy, it is argued. This turns out to be a strategy that is difficult to pursue in the realm of international investment law, a global (...) legal order made up of over 3,300 investment and regional treaties, enforced by private systems of dispute resolution, that incorporates standards of treatment familiar to national constitutional law. By undertaking an analysis of statements made by relevant actors in the field, principally investment lawyers and arbitrators, we learn that there is not that much interest in taking up proportionality analysis, despite the legitimacy problems that continue to dog the system. Whatever the purported advantages of turning to proportionality, it turns out that investment lawyers and arbitrators are not so interested in embracing logics other than one preoccupied with owing solicitude to foreign investors. This reluctance renders investment law a less legitimate, and therefore less sustainable, form of constitution-like global law. (shrink)

This article assesses recent claims that international courts and tribunals can enhance their legitimacy through public reason. Section one argues that international legal scholars attribute a wide range of meanings to public reason, and goes on to provide clarification of how this range of conceptions, or ideas and ideals, referred to as public reason fits into the dominant and broadly Rawlsian tradition. Section two analyses properties and features of international courts that make public reason normatively relevant. Section three then (...) sketches an ideal of public reason for ICs that suggests guidelines and principles to limit the discretion of judges when reasoning about morally and politically contentious issues. This ideal is designed to address a particular legitimacy concern raised against many new international courts, namely, that they engage in judicial activism, passing judgments on contentious moral and political issues without being sufficiently authorized and accountable. This ideal does not encourage the judges to engage in more judicial review, rather it seeks to restrict the judges' reasoning and judicial discretion when engaging in review and judicial development of the law. The final section compares and contrasts the proposed account of public reason to other adjudicative ideals, both from the general adjudicative accounts of Ronald Dworkin and Cass Sunstein, as well as the more ambitious and cosmopolitan accounts of public reason for ICs offered by the legal scholars Kumm, Sadurski, and Petersmann. (shrink)

In some instances, the criminal justice system is affected by a moral panic; that is, by an exaggerated social reaction to an assumed threat to moral values. When influenced by moral panic, courts...

Journal of Social Philosophy, EarlyView.

There is renewed scholarly interest in studying the dynamics of constitutional revolutions and the explanations for the rise of constitutional courts around the world. At the same time, there is growing discussion of democratic backsliding and concern that democracies are exhibiting extremism, weakening of opposition forces and constitutional courts, and violations of civil and political rights that are pertinent to vibrant democracies. Scholars try to study both phenomena and understand the relationship between them. Israel is an important case study for (...) both agendas. This Article analyzes the jurisprudence of Aharon Barak, one of the greatest jurists of our time with a worldwide reputation for revolutionizing both Israeli constitutional law and comparative constitutional law. It explains the tactics and strategy used by Barak to revolutionize Israeli constitutional law on issues of reasonableness, proportionality, standing, justiciability, constitutional review, equality, and supra-constitutional law. It reveals how each revolution paved the way for the next. It offers explanations for the effectiveness of these judicially-led revolutions as well as possible bases for their legitimation. Barak was a common law judge and ultimately treated parliamentary sovereignty as a doctrine arising from common law and constrained by common law, though he never quite put it in these terms. The Article concludes with explanations for the political backlash experienced by the current Israeli Supreme Court that some have characterized as democratic backsliding. It argues that the Court contributes to the development of law as part of a dialog and interaction between the different branches of government. As the Court operates within these dynamics, it must understand and take into account the institutional, political, and social environments in which it operates to preserve legitimacy and achieve efficacy. Barak was a strategic player that laid foundations for an expansive judicial power, but his Court was very prudent in utilizing that power. His successors may have contributed unintentionally to the backlash against the Court by following Barak’s substantive jurisprudence, but not necessarily his prudent tactics and strategy. (shrink)

Hannah Arendt was fearful not only of a populist President speaking in the name of the people and unbound by legality. She was also concerned that popular support could be harnessed by those responsible for limiting it. In other words, she was fearful of the American Supreme Court relying on popular support. This is the meaning of her obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but unfit to power. (...) I argue that Arendt's characterization of authority as requiring “neither coercion nor persuasion” means that the Court's source of legitimacy is expertise rather than public support. Yet the current dominant understanding among American Justices as well as scholars is that public support is the source of the Court's authority. In Arendt's mind, such an understanding means that the Court has become the seat of power. The corruption of the Court's authority and constitutional law as a language of expertise capable of resisting public opinion will inevitably follow. (shrink)

The term “judicial restraint,” applied to courts engaged in judicial constitutional review, may refer to any one or more of three possible postures of such courts, which we here will distinguish as “quiescent,” “tolerant,” and “weak-form.” A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution’s name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonable sustainable, even though it independently (...) would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs. (shrink)

The Israeli Supreme Court has become increasingly polarized between liberal and conservative judges. This phenomenon is relatively new to the Israeli Supreme Court and follows the much older and more well-known example of the U.S. Supreme Court. This article surveys both U.S. and Israeli court polarization and shows the history, reasons, and special features of polarization of both courts, including the important differences between them. It also adds a distinction to existing literature on court polarization—the (...) distinction between court polarization and politicization, and especially the distinction between “regular” polarization and “one-side” polarization. Regular court polarization happens when the court is divided roughly equally between the two main political contenders. One-side polarization happens when there is a clear advantage to one side of the political map in the make-up of the court. The current U.S. Supreme Court, with six conservative justices and only three liberal justices, is an example of one-side court polarization that is tilted to the right. The current Israeli Supreme Court is an example for one-side court polarization tilted to the left; there are 10 liberal judges and only five conservative judges on the court. The article’s main argument is that one-side court polarization presents a particularly vexing problem for the legitimacy of the court, even more so than “regular” polarization. The article concludes with a survey of possible solutions to help Israel retract itself from one-side court polarization. (shrink)

ABSTRACTThis article provides a normative appraisal of the law of military occupation by looking into occupation courts and their legitimacy. It focuses on two cornerstones of the current regulation of war: the principle of equality of belligerents, that is, the potential relevance ofjus ad bellumconsiderations on thein bellorights of occupants, and the normative force of the traditional distinction between states and non-state armed groups, specially in conflicts not of an international character. Against the currently predominant neoclassical position in just (...) war theory, it argues in favor of the moral equality of just and unjust occupants. Against the orthodox position in international law, it advocates the symmetrical treatment of states and non-state actors fighting internal armed conflicts, at least in terms of the rights they may claim on the territories under their control. It concludes by appraising the way in which this moral landscape should be translated into legal norms. (shrink)

Duff offered an argument for the conclusion that just or legitimate punishment of socially deprived offenders in our unjust society is impossible. One of the claims in his argument is that our courts have the standing to blame an offender only if our polity has the right to do so since our courts are acting as the representatives of, or to use the exact phrases by Duff, “in the name of”, or “on behalf of”, the whole polity. In this paper (...) I will challenge that claim. I will argue that the courts can be seen as acting, not on behalf of the whole polity, but only on behalf of a subset of its citizens, namely, the just citizens (i.e. the citizens who cannot be seen to have wronged the deprived offenders). (shrink)

John Stuart Mill’s famous “harm principle” has been popular in the limitation of freedoms within human rights jurisprudence. It has been used formally in court cases and also informally in legal argumentation and conversation. Shortly, it is described as a very simple principle that amounts to the notion that persons are at liberty to do what they want as long as their actions do not harm any other person or society in general. This article questions whether it is legitimate (...) to use the harm principle in cases concerning the limitation of religious freedom within education. For example, can the exemption of a learner from sex education be denied based on the argument that such an exemption will cause harm? In order to answer this question, the meaning, origin and use of the harm principle are investigated. This article also discusses four main criticisms against the use of this principle in general and in cases of religious freedom of learners in education. (shrink)

This research explores the complex relationship between criminal courts, both national and international, truth and reconciliation commissions (TRC), and the Truth and Friendship Commission (TFC) in the context of resolving gross human rights violations in Indonesia. Examining the legal frameworks, the study delves into the dilemma surrounding the prosecution of perpetrators versus the forgiveness approach adopted by TRC/TFC for the sake of national unity. Drawing on Geoffrey Robertson's perspective, it questions the feasibility of pardoning heinous crimes and emphasizes the role (...) of courts in establishing democratic legitimacy. The research aims to clarify criteria for utilizing ad hoc Human Rights Courts and TRC, considering provisions from MPR Decree No. V/MPR/2000 and Law No. 26/2000 on Human Rights Courts. Understanding TRC/TFC as extra-judicial institutions, the study discerns their limitations, specifically addressing human rights violations predating Law No. 26/2000. The research utilizes legal analyses and explores the implications of different approaches on justice, societal trust, and democratic consolidation. Ultimately, it seeks to contribute insights into the effective resolution of past human rights abuses and their impact on Indonesia's legal and social fabric. (shrink)

What can constitutional law contribute to the justification of political power? Quite a lot, Frank Michelman argues in Constitutional Essentials. It can establish a publicly known framework for addressing the deep disagreements that are inevitable in any free society. Michelman’s analysis has powerful attractions, but he overclaims the clarity with which rights can be defended within the Rawlsian framework he contemplates. The interests that courts must defend will vary from one society to another, depending on what the locals happen to (...) value. They cannot therefore be derived abstractly from the moral powers. In John Rawls’s four-stage sequence, writers of constitutions, legislatures, and courts necessarily consider contestable ideas of the good. Deep disagreement even about political fundamentals is a permanent condition of political life in a free society. Social unity is possible, but it is a more unstable unity than Rawls and Michelman imagine. (shrink)

This paper explores some of the important parallels between recent reforms to legal rules for the admissibility of scientific and expert evidence, exemplified by the US Supreme Court's decision in Daubert v Merrell Dow Pharmaceuticals, Inc. in 1993, and similar calls for reforms to medical practice, that emerged around the same time as part of the Evidence-Based Medicine (EBM) movement. Similarities between the “movements” can be observed in that both emerged from a historical context where the quality of medicine (...) and legal approaches to science were being subjected to growing criticism, and in the ways that proponents of both movements have used appeals to “folk epistemologies” of science to help legitimate their reform aspirations. The term folk epistemology is used to describe the weaving together of formal and informal images of scientific method with normative and pragmatic concerns such as eradicating “junk science”, and promoting medical best practice. Perhaps unsurprisingly, given the unfocused breadth of these aspirations the implications of these “reforms” for medical and legal practice have not been straightforward, although they do represent an important new set of rhetorical resources to critique and or legitimate expertise in medical and legal domains. Discussion closes, by noting the growth of calls for these movements to reciprocate in areas where law and medicine intersect, such as medical negligence litigation. (shrink)

Astrology, its legitimacy, and the limits of its acceptable practice were debated in sixteenth- and seventeenth-century Europe. Many of the related arguments were mediated by the work of Giovanni Pico della Mirandola and the responses to it. Acknowledging the complexities of the relationship between astrological ideas and Christian teachings, this paper focuses on the Catholic debates by specifically considering the decisions about astrology taken by the Spanish Inquisition. The trials of astrologers are examined with the aim of understanding the (...) role of experts in astrology in early modern Spain. This study brings into view the specific nature of the debate on astrology in Spain, the consequences of the actions of the Inquisition and the social control it exerted. The historical events discussed comprise a particular case and also mirror the general debates about astrology taking place in early modern Europe. The experts’ opinions expressed in trials and in reports about the discipline received by the Inquisition reveal two key traits of the debate: the dispute about who had the authority to decide on the legitimacy of astrology and the disagreement about what constituted natural and judicial astrological practices. These led to different opinions about what was to be done with each defendant and about what content in their books ought to be forbidden. (shrink)

Does the establishment of a permanent InternationalWar Crimes Tribunal (International Criminal Court - ICC) constitute a challenge to national sovereignty? According to previous US governments and several American observers, the answer is yes. Establishing a world court that acts independently of the states that gave birth to it renders the idea of sovereignty meaningless. This article analyzes the American objections to the ICC and the conception of sovereignty and international law underlying these objections. It first considers the structure (...) and intent behind the criminal court and attempts to unveil the logic hiding behind the idea of ‘America’s historical uniqueness.’ It touches on the diverging US and European conceptions of sovereignty and ends up arguing that governments that stick to traditional conceptions of sovereignty and international law in the employment of their foreign policy may lose the moral legitimacy that has proven increasingly important for winning the sympathy of allies and regaining world leadership. Keywords: The ICC; US opposition to the court; sovereignty; international law; exceptionalism (Published: 19 May 2009) Citation: Ethics & Global Politics, Vol. 2, No. 2, 2009, pp. 83-108. DOI: 10.3402/egp.v2i2.1973. (shrink)

This paper grapples with Bernard Williams’s prima vista enigmatic assertion that ‘[w]hether it is a matter of good philosophical sense to treat a practice as a violation of human rights, and whether it is politically good sense, cannot ultimately constitute two separate questions’. Though Williams’s approach to thinking about human rights has a number of affinities with other ‘political’ and ‘minimalist’ understandings, we highlight its distinctive features and argue that it has significant implications for our understanding of human rights along (...) a number of key dimensions. We then proceed to explain how Williams’s way of thinking about human rights coheres with certain aspects of the reasoning of one of the most important international human rights courts, to wit, the European Court of Human Rights. This lends further plausibility to the view that a politically realistic understanding of human rights, of the kind urged by Williams, should be taken seriously, since it is a plausible candidate for the explanation of important aspects of human rights practices. We close by examining the suggestion that thinking in these terms is worryingly conservative. (shrink)

The dominant image of courts as agencies of trial and judgment has a long history in the common law world. Yet across that region sponsorship of settlement is now widely identified as the courts’ primary responsibility, transforming them into sites where the profoundly different rationalities that ground negotiated agreement increasingly supersede those of rule-based adjudication. This study examines the work of one English court—the Mayor's and City of London Court—in sponsoring settlement and considers how that role is legitimated (...) on both propositional and symbolic levels. This evolving role raises questions about the Victorian court premises themselves. How are we to regard the now frequently empty courtrooms, designed for trial and judgment and decorated with Gothic elevations linking them symbolically with processes of medieval kingship? Should we simply see this Victorian site of contemporary settlement processes as no more than the quaint residue of a vanished era? Or can these historic features retain potency and relevance at a symbolic level, providing legitimacy for bilateral negotiation rather than the open processes of trial and judgment for which they were originally constructed? (shrink)

The experiences of many transitional justice mechanisms have led to a general consensus on the central importance of local legitimacy and local ownership; this indeed is repeatedly avowed by both the UN and the EU in their prescriptions on effective transitional justice mechanisms. Yet, I argue that the Kosovo Specialist Chambers was established in the absence of both. The court was not created in response to domestic pressure from within Kosovo; rather, it was the result of external pressure (...) which by definition compromised local ownership and legitimacy. Drawing on the findings from first-hand qualitative research, I demonstrate that the court’s local legitimacy has not improved since its establishment. This lack of legitimacy, I argue, has potentially negative implications as, without popular legitimacy, the court’s proceedings and judgements are unlikely to command sufficient public support to either catalyse the societal changes promised by the court’s external sponsors, or withstand opposition to the court from within the Kosovo Albanian population resulting from any perceived slight against the ‘heroic’ KLA. (shrink)

This article focuses on contemporary work on public knowledge of, information about, and public images and judgments of law and courts. It begins with a brief digression on the nature of the scholarship on public opinion and the operation of courts and postulates that courts are political institutions. In order to highlight the importance of judicial knowledge, democratic theory is explained in the article. The theory of judicial influence is a theory of individual-level attitude change. A great deal more research, (...) however, must be conducted before the hypothesis of attitude change can be accepted. Legitimacy is one of the most highly valued forms of political capital. Available evidence indicates that national high courts differ greatly in the legitimacy they have acquired. Future research should focus on the processes through which courts become salient to ordinary people and how interactions with courts, especially judicial symbols, contribute to institutional legitimacy. (shrink)

Organ trafficking and trafficking in persons for the purpose of organ transplantation are recognized as significant international problems. Yet these forms of trafficking are largely left out of international criminal law regimes and to some extent of domestic criminal law regimes as well. Trafficking of organs or persons for their organs does not come within the jurisdiction of the ICC, except in very special cases such as when conducted in a manner that conforms to the definitions of genocide or crimes (...) against humanity. Although the United States Code characterizes trafficking as a transnational crime with national implications, (22 U.S.C. § 7101(b)(24) (2010)), trafficking is rarely prosecuted in domestic courts. It has thus functioned in practice largely as what might be judged a stateless offense, out of the purview of both international and national courts. Yet these forms of organ trafficking remain widespread—and devastating to those who are its victims. In this article, we begin by describing what is known about the extent of organ trafficking and trafficking in persons for the purpose of removal of organs. We then critically evaluate how and why such trafficking has remained largely unaddressed by both international and domestic criminal law regimes. This state of affairs, we argue, presents a missed chance for developing the legitimacy of international criminal law and an illustration of how far current international legal institutions remain from ideal justice. (shrink)

This article focuses on contemporary work on public knowledge of, information about, and public images and judgments of law and courts. It begins with a brief digression on the nature of the scholarship on public opinion and the operation of courts and postulates that courts are political institutions. In order to highlight the importance of judicial knowledge, democratic theory is explained in the article. The theory of judicial influence is a theory of individual-level attitude change. A great deal more research, (...) however, must be conducted before the hypothesis of attitude change can be accepted. Legitimacy is one of the most highly valued forms of political capital. Available evidence indicates that national high courts differ greatly in the legitimacy they have acquired. Future research should focus on the processes through which courts become salient to ordinary people and how interactions with courts, especially judicial symbols, contribute to institutional legitimacy. (shrink)

Judicial Deliberations compares how and why the European Court of Justice, the French Cour de cassation and the US Supreme Court offer different approaches for generating judicial accountability and control, judicial debate and deliberation, and ultimately judicial legitimacy. Examining the judicial argumentation of the United States Supreme Court and of the French Cour de cassation, the book first reorders the traditional comparative understanding of the difference between French civil law and American common law judicial decision-making. It (...) then uses this analysis to offer the first detailed comparative examination of the interpretive practice of the European Court of Justice. Lasser demonstrates that the French judicial system rests on a particularly unified institutional and ideological framework founded on explicitly republican notions of meritocracy and managerial expertise. Law-making per se may be limited to the legislature; but significant judicial normative administration is entrusted to State selected, trained, and sanctioned elites who are policed internally through hierarchical institutional structures. The American judicial system, by contrast, deploys a more participatory and democratic approach that reflects a more populist vision. Shunning the unifying, controlling, and hierarchical French structures, the American judicial system instead generates its legitimacy primarily by argumentative means. American judges engage in extensive debates that subject them to public scrutiny and control. The ECJ hovers delicately between the institutional/argumentative and republican/democratic extremes. On the one hand, the ECJ reproduces the hierarchical French discursive structure on which it was originally patterned. On the other, it transposes this structure into a transnational context of fractured political and legal assumptions. This drives the ECJ towards generating legitimacy by adopting a somewhat more transparent argumentative approach. (shrink)

This Article develops an understanding of authority as the ability to establish content-laden reference points that participants in legal discourse can hardly escape. Situating authority between coercion by force and persuasion through argument, it carves out recognition and constraint as constitutive elements of authority. Delegation - a conditional grant of authority from principals to agents - is typically taken to account for the authority of international courts and tribunals. But the Article argues that delegation is at best only the starting (...) point of ICTs’ authority. The dynamics of the legal discourse stabilize authority and account for its further growth. The conception of authority that emerges from the discussion herein is less one of a command that demands blind obedience than a reference point that redistributes argumentative burdens. Communication is authority’s medium. Taking a step back from immediate normative questions, the Article shows what it takes for ICTs to have authority. It presents the communicative dynamics that build up ICTs’ authority and showcases the discursive resources ICTs themselves use to induce deference. The Article suggests in conclusion that a better understanding of what it takes for ICTs to have authority will also advance questions about such authority’s normative legitimacy. (shrink)

The recent proposal by the Independent Expert Panel of the Stop Ecocide initiative to include the crime of ecocide in the International Criminal Court's Rome Statute has raised expectations for preventing and remedying severe environmental harm through international prosecution. As alluring as this image is, we argue that ecocide prosecutions may be the most difficult, perhaps even impossible, in precisely the cases that the ICC would need to be concerned with; namely, the gravest global incidents of environmental harm, including (...) those associated with planetary climate change. We explore a series of questions about the panel's formulation of ecocide that resonate with longer debates around criminalizing environmental harm but take on new dimensions amid the Anthropocene and after twenty years of ICC trials. Ecocide must contend with the hard lessons learned concerning the ICC's limitations in realizing justice in a fraught international political context and also with fundamental challenges to knowledge and legitimacy arising from the uncertainty and dynamic socioenvironmental context of the Anthropocene. The proposed amendment, if adopted, risks ineffective prosecutions or even perverse outcomes for the environment itself. This risk, however, may characterize any effort to prosecute ecocide internationally in the Anthropocene unless the terms of international criminal law are fundamentally rethought. (shrink)

This article addresses an issue overlooked in most of the literature on judicial review: the legitimacy of judicial review of a constitution's federal and structural provisions. Debates about the legitimacy of judicial review—at least as conducted throughout the Commonwealth—are usually focussed on rights. These debates appear to assume that the power of courts like the Australian High Court and the Canadian Supreme Court to interpret and enforce federal and structural provisions is unproblematic. This article tests that (...) assumption and concludes that those who hold democracy-based objections to constitutional rights should seriously reconsider, and perhaps oppose, federal and structural judicial review as well. (shrink)

The dialogue focuses on the major issues of the contemporary theoretical debate on judicial review and the Supreme Court's role in American constitutional democracy. The discussion begins with the US Supreme Court's case Hamdan v. Rumsfeld, successfully argued by Prof. Katyal last year, and covers important issues such as the separation and balance of powers after 9/11, the legitimacy of the laws of terror, the relation between US constitutional law and foreign law, the counter‐majoritarian difficulties posed by (...) the exercise of judicial review, and the legal academy's influence on legal practice. (shrink)

Dans cet article, nous revenons sur le premier moment de l'appropriation de Nietzsche dans le parcours de Gilles Deleuze. Le livre Nietzsche et la philosophie (1962) s'inscrit de plein pied dans une phase inédite de légitimation institutionnelle du philosophe allemand comme en témoigne toute une série de stratégies de lecture et de prises de position stylistiques propres au travail de Deleuze visant à constituer pleinement Nietzsche en philosophe, mais aussi ces opérations de courts-circuits de différents champs de production culturelle (littéraire, (...) politique, « marginaux ») au sein desquels la lecture de Nietzsche était particulièrement vivante durant la première moitié du XXe siècle. Restituer cette légitimation philosophique de Nietzsche par le haut, c'est aussi se donner les moyens de comprendre la force et l'audace de ce « second moment » (au début des années 1970 notamment) où Nietzsche, à l'inverse, devient chez Deleuze le nom de ralliement d'un rapport hétérodoxe à la lecture des textes philosophiques. (shrink)

Recent global efforts of the United States and England to withdraw from international institutions, along with recent challenges to human rights courts from Poland and Hungary, have been described as part of a growing global populist backlash against the liberal international order. Several scholars have even identified the recent threat of mass withdrawal of African states from the International Criminal Court (ICC) as part of this global populist backlash. Are the African challenges to the ICC part of a global (...) populist movement developing in Africa? More fundamentally, how are the African challenges to the ICC examples of populism, if at all? In this paper, I show that, while there is considerable overlap between the strategies used by particular African leaders to challenge the ICC and those typically considered populist, as well as a discernible thin populist ideology to sustain them, there is insufficient evidence of a larger anti-ICC populist movement in Africa. Although Africa is not as united against the ICC as the populist narrative suggests, the recent challenges to the Court from Africa pose a significant challenge to the Court, as the institution is still in the early stages of building its legitimacy. (shrink)

We lack analyses of the judiciary from a systemic perspective. This article thus examines arguments offered by deliberativists who have reflected about this institution and argues that the current state of deliberative democracy requires us to rethink the ways they conceive of the judiciary within a deliberative framework. After an examination of these accounts, I define the deliberative system and describe the different phases deliberative democracy has gone through. I then single out elements common to all systemic approaches against which (...) I test whether the regard that the authors show for the judiciary in deliberative terms can be maintained and argue in the negative. I conclude by pointing at the necessity to think about the definition of deliberative systems, and to the value of these discussions for debates on the legitimacy of judicial review when it is exercised under the form of judicial supremacy. (shrink)

This review article discusses the relationship between deference and the presumption of constitutionality, as discussed in Brian Foley’s book, Deference and the Presumption of Constitutionality. Foley argues for the rejection of the presumption of constitutionality as it operates in the Irish Constitution, proposing instead a ‘due deference’ approach. This approach would require courts to give varying degrees of weight to the legislature’s conclusions that particular legislative provisions are constitutional. The article praises Foley’s book, particularly its stronger justification of due deference (...) which focuses on its ability to foster a culture of justification which, in turn, facilitates popular sovereignty. The review also provides a criticism of the argument made in the book and discusses its application to the UK constitution. First, the review argues that the focus on constitutional as opposed to institutional factors to determine deference may, in practice, undermine Foley’s justification of due deference. Second it argues that Foley’s justification of deference may be best served in the UK constitution by a theory of democratic dialogue as opposed to the application of due deference. (shrink)

This book examines the legal principle of judicial independence in comparative perspective with the goal of advancing a better understanding of the idea of an independent judiciary more generally. From an initial survey of judicial systems in different countries, it is clear that the understanding and practice of judicial independence take a variety of forms. Scholarly literature likewise provides a range of views on what judicial independence means, with scholars often advocating a preferred conception of a model court for (...) achieving 'true judicial independence' as part of a rule of law system. This book seeks to reorient the prevailing approach to the study of judicial independence by better understanding how judicial independence operates within domestic legal systems in its institutional and legal dimensions. It asks how and why different conceptualisations of judicial independence emerge over time by comparing detailed case studies of courts in two legally pluralistic states, which share inheritances of British rule and the common law. By tracing the development of judicial independence in the legal systems of Malaysia and Pakistan from the time of independence to the present, the book offers an insightful comparison of how judicial independence took shape and developed in these countries over time. From this comparison, it suggests a number of contextual factors that can be seen to play a role in the evolution of judicial independence. The study draws upon the significant divergence observed in the case studies to propose a refined understanding of the idea of an independent judiciary, termed the 'pragmatic and context-sensitive theory', which may be seen in contradistinction to a universal approach. While judicial independence responds to the core need of judges to be perceived as an impartial third party by constructing formal and informal constraints on the judge and relationships between judges and others, its meaning in a legal system is inevitably shaped by the judicial role along with other features at the domestic level. The book concludes that the adaptive and pragmatic qualities of judicial independence supply it with relevance and legitimacy within a domestic legal system. (shrink)