Abstract

http://ssrn.com/abstract=2154129
 


 



Legitimacy and Lawmaking: A Tale of Three International Courts


Laurence R. Helfer


Duke University School of Law

Karen J. Alter


Northwestern University - Department of Political Science; University of Copenhagen, Faculty of Law - iCourts Center of Excellence

August 10, 2013

14 Theoretical Inquiries in Law 479 (2013)

Abstract:     
This Article explores the relationship between the legitimacy of international courts (ICs) and expansive judicial lawmaking. We compare lawmaking by three regional integration courts — the Court of Justice of the European Union (CJEU), the Andean Tribunal of Justice (ATJ), and the ECOWAS Community Court of Justice (ECCJ). 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.

Number of Pages in PDF File: 26

Accepted Paper Series





Download This Paper

Date posted: September 30, 2012 ; Last revised: August 11, 2013

Suggested Citation

Helfer, Laurence R. and Alter, Karen J., Legitimacy and Lawmaking: A Tale of Three International Courts (August 10, 2013). 14 Theoretical Inquiries in Law 479 (2013). Available at SSRN: http://ssrn.com/abstract=2154129

Contact Information

Laurence R. Helfer (Contact Author)
Duke University School of Law ( email )
210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)
HOME PAGE: http://law.duke.edu/fac/helfer/
Karen J. Alter
Northwestern University - Department of Political Science ( email )
601 University Place
Evanston, IL 60208
United States
University of Copenhagen, Faculty of Law - iCourts Center of Excellence ( email )
Studiestraede 6
Copenhagen, DK-1455
Denmark
Feedback to SSRN


Paper statistics
Abstract Views: 745
Downloads: 186
Download Rank: 96,966

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.469 seconds