The Dejudicialization of International Politics?

Abstract

For many, the growing judicialization of international relations is the next step in the process toward the complete legalization of international politics. We draw on the literature in comparative judicial politics to examine the limits of the phenomenon. The domestic literature on judicialization portrays the process as something of a one-way ratchet. In an increasingly juridified world, judges have been asked to take on greater roles in global governance, and seem to be doing so with aplomb. This in turn incentivizes individuals and interest groups to frame their policy claims in legal terms, providing ever-more fuel for judicial governance. Yet many courts and other legal institutions, both domestic and international, have had their jurisdiction constrained, with some areas of law removed from judicial purview. Might the dynamics of constraint and backlash lead to the dejuridification of an area that has been judicialized? We conceptualize the possibility of what we call dejudicialization, situate it in the context of the literature on backlash, and delimit its potential scope and implications. While dejudicialization is empirically rare, we argue that its very possibility suggests that judicialization should not be considered a teleological process.