Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice

30 Pages Posted: 23 Jun 2009 Last revised: 2 Sep 2015

See all articles by Karen J. Alter

Karen J. Alter

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

Laurence Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Date Written: October 13, 2010

Abstract

Are international courts power-seeking by nature, expanding the reach and scope of international rules and their own authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional clone and the third most active IC. We argue that international judges are more likely to become expansive lawmakers where they are supported by sub-state interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This comparison of two structurally identical international courts calls into question prevailing explanations of ECJ lawmaking, and it suggests that prevailing scholarship puts too much emphasis on self-interested power seeking of judges, the importance of regime design features, and the preferences of governments in explaining IC lawmaking.

Published online by Cambridge University Press 12 October 2010

Keywords: Andean Community, Andean Tribunal, International Courts, International Tribunals, European Court of Justice, European Community, Regional Trade, Regional Integration, International Relations, Administrative State, Administrative Agencies, Judicial Politics, Preliminary References

Suggested Citation

Alter, Karen J. and Helfer, Laurence, Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice (October 13, 2010). International Organization, Vol. 64, No. 4, Fall 2010; Duke Law School Public Law & Legal Theory Paper No. 258; Northwestern Public Law Research Paper Series No. 09-16. Available at SSRN: https://ssrn.com/abstract=1424423 or http://dx.doi.org/10.2139/ssrn.1424423

Karen J. Alter (Contact Author)

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 )

Karen Blixens Plads 16
Copenhagen, DK-2300
Denmark

Laurence Helfer

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/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

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