Stronger Together? Legitimacy and Effectiveness of International Courts as Mutually Reinforcing or Undermining Notions

Yuval Shany, 'Stronger Together? Legitimacy and Effectiveness of International Courts as Mutually Reinforcing or Undermining Notions' in Legitimacy and International Courts (Nienke Grossman, Harlan Grant Cohen, Andreas Follesdal and Geir Ulfstein, eds., CUP and Pluricourts, 2016 Forthcoming)

Hebrew University of Jerusalem Legal Research Paper No. 15-27

21 Pages Posted: 28 Sep 2015 Last revised: 31 Mar 2016

See all articles by Yuval Shany

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Date Written: September 22, 2015

Abstract

Legitimacy and effectiveness are two key conceptual frameworks for evaluating social institutions, including judicial institutions. At the international level, attaining either judicial legitimacy or judicial effectiveness is particularly challenging: international institutions typically lack both the kind of democratic legitimation possessed by domestic institutions in liberal democracies, and the strong law-enforcement facilities available at the domestic level in ‘rule of law’ states. Given these structural deficiencies, international courts may need to resort to supplementary legitimacy-enhancing and effectiveness-bolstering factors in order to perform their functions in a satisfactory manner and to realize the expectations attendant to their operations. Arguably, such legitimacy-enhancing and effectiveness-bolstering factors tend to operate in a mutually-reinforcing manner: a more legitimate international court may function more effectively, and a more effective international court may be deemed more legitimate. Still, at times, legitimacy-detracting and effectiveness-decreasing factors may operate in a mutually-undermining manner, judicial illegitimacy producing judicial ineffectiveness and vice versa. This Chapter examines the relationship between judicial legitimacy and judicial effectiveness, as applied to international courts, and explores, in particular, their mutually reinforcing or mutually undermining attributes.

Suggested Citation

Shany, Yuval, Stronger Together? Legitimacy and Effectiveness of International Courts as Mutually Reinforcing or Undermining Notions (September 22, 2015). Yuval Shany, 'Stronger Together? Legitimacy and Effectiveness of International Courts as Mutually Reinforcing or Undermining Notions' in Legitimacy and International Courts (Nienke Grossman, Harlan Grant Cohen, Andreas Follesdal and Geir Ulfstein, eds., CUP and Pluricourts, 2016 Forthcoming) ; Hebrew University of Jerusalem Legal Research Paper No. 15-27. Available at SSRN: https://ssrn.com/abstract=2664477

Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

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Israel Democracy Institute ( email )

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