After the successful ‘The People’ symposium, PolCon members Massimo Fichera and Panu Minkkinen will be presenting at the ICON·S 2017 Annual Conference in Copenhagen, July 5-7, 2017 on Friday, 7 July 2017, 9am-10.30am, in Room 8B-2-09. The theme of the conference is ‘Courts, Power, Public Law’.
The Judiciary: Views from Political Theory
The reservations that traditional legal perspectives have harboured about politics in the courtroom have also curbed the more general discussions about the functions of the judiciary in democracies. The judiciary’s deferent submission to the elected branches is all too often seen as the only criterion considered. We find such a limited view both objectively untenable and theoretically weak. Not only do courts factually play a more proactive role in democracies than traditional accounts would suggest, but this role can also be theoretically defended. Drawing on these presuppositions, the panel will explore the democratic dimensions of the judiciary with special reference to insights provided by contemporary political theory.
The Legitimizing Role of the Courts
Søren Stig Andersen
In this paper, focus is shifted from the prevalent question of the legitimacy of the judiciary to the no less important, but often ignored question of the courts’ legitimizing role with regard to the law and the state. The basis of the analysis is Levinas’ phenomenologically sustained conceptualization according to which subjectification is the result of an encounter with the entirely other – the Other – and the implied responsibility. It is argued that the subjectification of the law and of the state raison likewise depends on an encounter with non-law without which law would remain for-itself. Then, not only the law but also the state would be at risk of becoming totalitarian. Whereas such encounters between law and non-law are only poorly facilitated within administrative law, the courts offer a much more adequate scene for the law and the state represented by the judge to encounter the Other in the shape of the unique and concrete case and its parties. Without the judicial process, the law therefore would remain for-itself and presumably loose its legitimacy. This realization opens up towards the question of the legitimizing role of international courts and tribunals: Do such courts and tribunals ensure the necessary encounter between law and non-law? And is there in fact a need for international courts and tribunals to have such a legitimizing function?
Courts and the Authority of the Dialogical
The twofold challenges of the countermajoritarian difficulty and the judicialization of politics worldwide make the legitimation of courts ever more necessary, albeit no less complicated. In this presentation I focus on the phenomena of “judicial dialogues” (i.e., cross-fertilization, judicial borrowing, uses of comparative and foreign sources), which has come to the forefront in recent years. Departing from authors who have analyzed this phenomenon in an international context (Slaughter, Jackson, Tushnet, Choudry, Bobek), I rely on a rather specific notion of dialogue borrowed from philosopher and literary theorist Mikhail Bakhtin. Whereas Bakhtin famously presented the dialogical against a monological style of discourse—in the arts, sciences, religion, philosophy, and the law—I adopt a narrower definition of dialogism, as the kind of utterance internally constituted by many and opposing voices. Dialogism is thus a form of authority that opens itself up to the other as constitutive of the self. In the talk I will elaborate on examples from the European Court of Human Rights, where the dialogical ushers new forms of authority and legitimacy. Unlike the principle of deference, based on the idea of autonomous and clearly demarcated spheres of action, the dialogical is profoundly inter- (as well as intra-) penetrated. Most importantly, and contrary to the communicative ideal of dialogue, dialogism is characteristically confrontational and polemic, which is to say, political.
Transnational Courts and the Image of Conflict
The relationship between transnational courts is often portrayed as a conflict relationship, either in terms of conflict of laws (private international law), or in terms of cross-border dialogue, or in terms of constitutional tensions between organs claiming ultimate authority, according to the criteria and paradigms belonging to their own legal system. While cross-references and mutual influence are very much a part of transnational law today, endurance and self-assertion are also increasingly detected. Yet, conflict is mostly seen as an integral part of law, entirely manageable through legal rationality. This paper seeks to redefine the image of conflict as not only an essential aspect of transnational law, but also one of the key indications of the “return of the political” within the broader phenomenon of transnational integration. It will focus on the interplay between the Court of Justice of the European Union (CJEU) and national constitutional courts as an emblematic example. The aim is not merely to show the pitfalls of the liberal paradigm expressed in the development of transnational law, but also transnational law’s evocative and transformative character – always already intimating the manifold possibilities disclosed by alternative visions of the Real. Courts are thus always called upon to stand as the gatekeepers of parallel worlds, and the choice among these worlds ought not to be necessarily predetermined.
’The Whirlwind of Rights’: Claude Lefort’s Radical Phenomenology of Human Rights and Judicial Politics
Unlike their Anglophone counterparts, French representatives of the so-called ‘post-Marxist’ or ‘radical democratic’ movement have often entertained a more optimistic view on the revolutionary potential of human rights. Whereas in the English-speaking world human rights are often seen as (yet) another neo-liberal ploy, the French have considered human rights more as a challenge to the very same neo-liberal regime. After decades of Marxist human rights critique, the discussion in France took this decisive turn in 1980 with Claude Lefort’s seminal article ‘Politics and Human Rights’. This paper attempts to, first, clarify the position of human rights in Lefort’s unique blend of phenomenologically and psychoanalytically inspired political theory. Human rights, and by extension rights more generally, are an integral element in the ‘savage democracy’ that Lefort envisioned as the only plausible challenge to neo-liberal totalitarianism. From this starting point, the paper will then continue to discuss the position of the judiciary in contemporary democracies. Standard accounts of the separation of powers reduce the courts’ constitutional functions to the application and interpretation of laws passed by an elected legislator. But as the relationship between the legislative branch and the executive has changed, so, too, has the relative position of the judiciary. A strong executive as the engine of legislative initiatives, supported by a weak ‘rubber-stamp’ legislature, has highlighted the democratic functions of the judiciary that go beyond the ‘deferential’ role of standard accounts. The paper will try to provide a theoretical framework for this more political role through Lefort’s understanding of human rights.