The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐à‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Court's declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules kept politicians from sanctioning either national courts or the European Court for judicial activism. Legal doctrine became a form of institution‐building, and a mechanism to make international law enforceable was created, giving the European Court the ability to make unpopular decisions and to compel compliance with European law.     

International Criminal Justice Between Scylla and Charybdis—the “Peace Versus Justice” Dilemma Analysed Through the Lenses of Judith Shklar’s and Hannah Arendt’s Legal and Political Theories

The present article discusses the “peace versus justice” dilemma in international criminal justice through the lenses of the respective legal (and political) theories of Judith Shklar and Hannah Arendt—two thinkers who have recently been described as theorists of international criminal law. The article claims that in interventions carried out by the International Criminal Court (ICC), there is an ever-present potentiality for the “peace versus justice” dilemma to occur. Unfortunately, there is no abstract solution to this problem, insofar as ICC interventions will in some cases be conducive while in others, they will be deleterious to peace. If a tension between peace and justice arises in a particular case, the article asserts, the former must be prioritised over the latter. Such a prioritisation, however, requires a vision of the ICC as a flexible actor of world politics which is situated at the intersection of law, ethics and politics, rather than a strictly legalistic view of the court. Ultimately, then, the present article seeks to probe whether the legal and political theories of Shklar and Arendt—in isolation, but ultimately also in combination—support such a flexible vision of the ICC.     

Politics, Profession and Law: The Legal Development of Compulsory Intervention towards Substance Abusers in Scandinavian Social Law

The legal foundation of compulsory interventions towards substance abusers in Scandinavian social law has moved from similarity to dissimilarity. The aim of this article is to explain this development by focusing on the relationship between three general discourses in the preparation of these acts in Norway, Sweden and Denmark. The political-democratic discourse focuses on the relationship between law and politics (law as a political instrument); the professional discourse emphasises the relationship between welfare professions and law (law as a professional tool); and the legal discourse draws attention to the importance of legal principles (law as an institution). In Sweden, the process has been strongly politicised and influenced by the political 'war on drugs', resulting in a comprehensive use of coercion towards substance abusers. In Denmark, the process has also been dominated by the political discourse. This process, however, was far less politicised than in Sweden, and no actor has pressed for extensive authority to apply such measures in social policy. In Norway, the process has been strongly influenced by legal discourse emphasising the legal security of the substance abusers, resulting in legislation that is more constricted than in Sweden. In none of these countries have welfare professionals played an active role in pressing for coercive measures in this field of social policy; in fact, they have generally opposed such measures.     

Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights

The European Court of Human Rights (ECtHR) boasts one of the strongest oversight systems in international human rights law, but implementing the ECtHR??s rulings is an inherently domestic and political process. This article begins to bridge the gap between the Court in Strasbourg and the domestic process of implementing the Court??s rulings by looking at the domestic institutions and politics that surround the execution of the ECtHR??s judgments. Using case studies from the UK and Russia, this article identifies two factors that are critical for the domestic implementation of the Court??s rulings: strong domestic, democratic institutions dedicated to implementing the ECtHR??s judgments and an overarching sense of responsibility to set a good example at home and abroad for respecting human rights and the rule of law. This article concludes with a discussion of the steps necessary to facilitate better implementation of the ECtHR??s rulings.     

Judicial policy‐making in Germany: The federal constitutional court

The most powerful policy‐maker among German courts is the Constitutional Court. It is the thesis of this analysis that the danger of judicial review is a process of judicialisation of politics. More and more political questions are decided by the Constitutional Court and, thereby, political alternatives are reduced. Members of Parliament contribute to this development by carrying too far the consideration of legal arguments in legislation and judges by exceeding their competence in several cases. While it is an inadequate simplification of reality to claim that judicial review always serves the interests of the political elite, it is the growing influence of judicial review in policy‐making that sometimes prevents political reform.     

The Federal Judiciary and Northern School Desegregation: Law, Politics, and Judicial Management

Using a three-tier analysis, this article examines how the interplayof political and legal factors has influenced the developmentof school desegregation policy in Michigan and Ohio. The authorconcludes, among other things, that the district courts, theSixth Circuit Court of Appeals, and the U.S. Supreme Court aresensitive to the influences of politics and legalism, but thatthe responses of the three kinds of federal courts are different.Recognizing a constitutional imperative to eradicate segregation,district courts have emphasized the participation of electedofficials and affected community groups in the remedial process.Because of isolation and low visibility, the Sixth Circuit hastended to pursue a more tenacious policy course than eitherthe district court or the Supreme Court. Meanwhile, the U.S.Supreme Court has generally championed the cause of local officialsby attempting to balance the interest of eliminating segregationwith that of protecting the integrity of state and local decisionmakers.     

Friends of the Court? Why EU governments file observations before the Court of Justice

The preliminary reference procedure under which the Court of Justice of the European Union (CJEU) responds to questions from national courts regarding the interpretation of EU law is a key mechanism in many accounts of the development of European integration and law. While the significance of the procedure has been broadly acknowledged, one aspect has been largely omitted: The opportunity for member state governments to submit their views (‘observations’) to the Court in ongoing cases. Previous research has shown that these observations matter for the Court's decisions, and thus that they are likely to have a significant impact on the course of European integration. Still, little is known about when and why member states decide to engage in the preliminary reference procedure by submitting observations. This article shows that there is significant variation, both between cases and between member states, in the number of observations filed. A theoretical argument is developed to explain this variation. Most importantly, a distinction is made between legal and political reasons for governments to get involved in the preliminary reference cases, and it is argued that both types of factors should be relevant. By matching empirical data from inter‐governmental negotiations on legislative acts in the Council of the EU with member states’ subsequent participation in the Court procedures, a research design is developed to test these arguments. It is found that the decision to submit observations can be tied both to concerns with the doctrinal development of EU law and to more immediate political preferences. The conclusion is that the legal (the CJEU) and political (the Council) arenas of the EU system are more interconnected than some of the previous literature would lead us to believe.     

The Separation of Powers, Court Curbing, and Judicial Legitimacy

A major focus of judicial politics research has been the extent to which ideological divergence between the Court and Congress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court-curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court's use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint. When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.     

廉洁政治:内涵、结构与运行逻辑

十八大报告在党的重要文献中第一次提出"廉洁政治"这个概念,要求做到干部清正、政府清廉、政治清明。从政治发展角度来看,廉洁政治是现代国家治理的必然要求。廉洁政治内涵具有三个理论维度:政治设计、价值取向和实践状态。政治设计为廉洁政治建设提供合法性,价值取向为廉洁政治建设提供发展方向,实践状态让政治设计和价值取向实现统一,从而为廉洁政治建设开辟道路。廉洁政治的内在结构包括廉洁政治观念、廉洁政治关系和廉洁政治行为三个部分,这三个部分具有一定的逻辑关系,从廉洁政治观念到廉洁政治关系再到廉洁政治行为,一个比一个更接近于政治生活现实。建设廉洁政治应遵循并实现法治逻辑、制度逻辑和治理逻辑的统一:法治逻辑要求依法治腐,把所有廉政建设事务纳入法制框架;制度逻辑要求制度反腐,推进宏观层面的行政体制改革、中观层面的廉政制度建设以及微观层面的分权机制探索;治理层面要求实现廉政组织重构、廉政资源配置、廉政信息公开、廉政主体合作等。     

Divide and Pacify

This paper explores the process of Europeanisation of party politics by examining the regulation of political parties by supranational European organisations. Despite the increased relevance of the regulation of the activity, behaviour, organisation and finances of political parties in European democracies, the supranational dimensions of this phenomenon have hitherto received relatively little systematic scholarly attention. This paper adopts an interdisciplinary perspective, combining approaches from the Europeanisation literature with legal theory and party scholarship. For the purpose of this paper, the rulings and regulations of the European Union, the various organs of the Council of Europe, and the European Court of Human Rights are analysed. The paper highlights the horizontal and vertical patterns of norm creation and diffusion and demonstrates that, despite a certain convergence of European standards, conceptions of democracy and corresponding regulatory paradigms have not become so similar as to be virtually indistinguishable from one another.     

Corporations and the law: Historical lessons for contemporary practice

Abstract

This article examines the role of the courts, especially the Supreme Court, in facilitating the development of a capitalist economy and enhancing corporate power. Theoretically, I employ an approach which treats the law as a constitutive process. I first survey key legal developments in the nineteenth century through which the courts fostered and nurtured the development of a capitalist economy. Then I analyze the post‐New Deal era, examining the transformation of economic doctrines by the Supreme Court to legitimate a newly emergent corporate‐administrative state. In the last part of the article I use this historical analysis to address contemporary issues for the Left of how to bring about fundamental change in the United States. I discuss the degree to which the law can be used as a means of progressive reform and how strategic legal choices are related to the debate about social movement, discourse, class‐based, and political strategies for change.     

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and post-Kelo

A controversial U.S. Supreme Court decision in Kelo v. City of New London (2005) which did not limit the use of state's eminent domain powers, led to an unprecedented legislative reaction by almost all 50 states. Of all, New York State stands out as one of the single states not to respond with a legislative amendment. In this study, I ask whether the state's predation was greater in the years following these legal and political developments, in light of the freedom which was granted to local politicians by both the Supreme Court and the state's legislators. The article hypothesizes that contrary to common perceptions, judicial decisions impact local government actions even when no limits on the use of powers are being posed. I use rigorous statistics and scrupulously defined data to expand scholarly understanding of the aftermath of the judicial decision in Kelo. The main finding is that the decision has in fact affected political behavior, but in the opposite direction than commonly expected: politicians in New York City acted consistently with public opinion, which was hostile too Kelo, not by changing the law, but by changing their practice. Studying all known taking exercises in New York City between 1991 and 2019, the paper finds no increase in the number of development projects involving condemnations after 2005. In fact, the probability of a taking for economic development or urban renewal dropped by 90%. The use of eminent domain for such projects declined even when both state and federal courts refrain from interposing any actual limit on its use. The paper lends qualified support to an alternative assertion that takings decisions by government officials are largely shaped by planning and political needs and that officials are sensitive to revealed public preferences even when there is no constitutional or legal impediment on their exercise of power.     

Judicialization of politics or politicization of the judiciary? Considerations from recent events in Thailand

Abstract

Courts are becoming major players in the political landscape of Southeast Asia. This paper seeks to examine the causes and consequences of this new trend with particular reference to Thailand. Our study primarily analyzes the behavior of the Thai Constitutional Court during the political crisis in 2006–2008; the findings suggest that recent judicial activism and assertiveness in political matters, while partly explained by the interests of judges themselves and by the constitutional rules guiding their activities, is best understood as a direct consequence of the intervention of the monarchy, to which the judiciary has traditionally been closely aligned. Accordingly, the Thai case not only provides new evidence about what may be driving the new judicialization trend, it also draws attention to problematic aspects of this trend, namely the gradual politicization of the Thai judiciary and with it the erosion of the rule of law in Thailand and its replacement with rule by law. Our findings may also illuminate some larger issues at the intersection of politics and the courts throughout the region in ways that advance the theoretical understanding of both.     

The Nature of Legal Change on the U.S. Supreme Court: Jurisprudential Regimes Theory and Its Alternatives

Jurisprudential regimes theory (JRT) posits that legal change on the U.S. Supreme Court occurs in a drastic, structural‐break‐like manner. Methodological debates present conflicting evidence for JRT, which has implications for the important law versus ideology debate. We confront this debate by first elaborating two alternative theoretical perspectives to JRT—evolutionary change and legal stability. Our analytical framework focuses on two key substantive effects of jurisprudential categories on the Court's case outcomes—relative differences between categories over multiple time periods and longitudinal differences across time periods. Importantly, different pieces of empirical evidence can provide support for different dynamic processes. The extent to which “law matters” is not necessarily tied to one particular model of legal change. Empirical analysis of updated and backdated free expression data generates key findings consistent with JRT, legal stability, and evolutionary change. We discuss the implications of the results for understanding legal change and legal influence.     

The Norwegian Supreme Court and Equitable Considerations: Problematic Aspects of Legal Reasoning

Legitimacy, confidence and autonomy in the court system are dependent on people trusting the institution to make decisions based on predefined legal rules. Simultaneously, confidence in the system is also dependent on the system's capability to adjust to changes in values in society. The Norwegian courts appear to be increasingly basing their rulings on ‘equitable considerations’. This involves the making of decisions by reference not only to predefined rules – as expressed in structures or pre‐existing legal practice – but also to policy considerations such as utility and fairness. Judicial decisions made with reference to political considerations imply that the courts are arrogating a role that democratic theory reserves for legislators. What happens when ‘equitable considerations’ play a large part in the decisions of the Supreme Court? Does the institution have capabilities and mechanisms that sustain such a judicial practice as a legitimate form of law enforcement? I argue that the capability to adjust to changes in society only seems possible if the judges act beyond the domain of traditional judicial competence. Through different kinds of mechanisms, elements of ‘equitable considerations’ over time become hidden and difficult to grasp. On the one hand, this makes it possible for the Supreme Court to sustain a judicial practice as a legitimate form of law enforcement, but simultaneously it creates problems of confidence and legitimacy because the premises for the decisions are not explicated.     

When ‘Anxious Scrutiny’ of Arms Exports Facilitates Humanitarian Disaster

How is it that the UK government continues to export weapons to Saudi Arabia for use in the war in Yemen, despite an explicit commitment to international humanitarian law (IHL)? And how is it that the High Court recently dismissed a case of judicial review, confirming that the government was ‘rationally entitled to conclude’ that arms exports pose no clear risk to IHL in Yemen? In what follows, I explain how a flexible interpretation of risk, reliance on secret information, and deference of the Court to the executive serve to facilitate rather than restrict arms exports. The judges’ decision provides a stamp of approval to an arms export policy that has directly contributed to the deaths of thousands of civilians in Yemen. Attention to the Saudi/Yemen case shows the political and legal manoeuvring that goes into managing the contradictions in government arms export policy.     

Federalism Outcomes and Ideological Preferences: The U.S. Supreme Court and Preemption Cases

The record of the U.S. Supreme Court in decisions affectingfederal-state relations has been one of inconsistency betweenstates' rights and national supremacy. This inconsistency hasperplexed both legal and political science scholars who havehad great difficulty placing decision-making regarding federalismoutcomes by the Court in any sort of theoretical context. Contraryto much conventional wisdom, ideological preferences do notautomatically translate into federalism outcomes. We extendmodels of judicial decision-making in political environmentsby including state policy. State policy outcomes may be eithermore liberal or more conservative than the policy would be underfederal control. Thus, the ideological preferences of the justicesmay contradict their preferences toward nationalism or statesrights. Testing the model using 94 preemption cases, we findthat individual justices and most Courts are willing to sacrificetheir federalism values in the pursuit of some other policygoal. This finding has implications for both the federalismliterature and strategic models of Court behavior, as well asfor cases the Court is currently reviewing.     

Autonomie des Rechts? Niklas Luhmanns soziologischer Rechtspositivismus — Eine kritische Rekonstruktion

Beside Hans Kelsen’s pure theory of law, Niklas Luhmanns autopoietic theory of law offers the most elaborated attempt to defend the conception of the autonomy of law. According to this approach, the functionally differentiated legal system obeys in its internal logic completely its own legal operations. Law represents a basically closed system in which law can be only (re-)produced through law. Firstly, this article reconstructs Luhmann’s sociological transformation of central problems in legal theory. Secondly, in focusing on the paradoxical constitution of the legal system, it mainly demonstrates how the notion of the autopoietic autonomy of law must fail in virtue of its inner-theoretical shortcomings. Luhmann cannot avoid to concede that law is ultimately founded on politics. Finally, this essay tries to develop an alternative political theory of law in which the concept, validity, relative autonomy, and function of law is, in the last instance, based on the historically varying relations of power and the struggle for their maintenance or change.     

Dillon's Rule Under the Burger Court: The Municipal Liability Cases

Under the Burger Court, the constitutional relationship betweenstates and their municipalities has been examined primarilyin cases involving private suits initiated against municipalitiesunder federal antitrust and civil rights statutes. Since theCourt's 1943 Parker v. Brown decision, it had been presumedthat municipalities as political subdivisions of states wereas immune as their states from tort liability under the ShermanAntitrust Act. The Burger Court, however, ruled that municipalitiesare not automatically immunized from tort liability simply becauseof their status as political subdivisions unless they can demonstratethat their actions were undertaken pursuant to an expressedstate policy. After 1980, the Court continued to uphold thevulnerability of municipalities to private suits authorizedby federal statutes, but moved to narrow the types of remedyappropriate under common law. The Burger Court did not, therefore,address the more fundamental question of whether municipalitiesas public actors should be liable to private damages in thecourse of their public functions.