Does Politicization Make International Courts Uncomfortable? Evidence from the European Court of Justice
Silje S. L. Hermansen presents joint work with Urska Sadl entitled Does Politicization Make International Courts Uncomfortable? Evidence from the European Court of Justice
Court of Justice of the European Union
This article investigates the response of the Court of Justice of the European Union (CJEU) to a growing politicization and polarization of European Integration. Does the world’s most powerful international court seek to bolster its legitimacy and assert its law-making authority in politically contentious time?
Courts derive legitimacy and authority to speak the law from their image of non-partisan and apolitical institutions. Politicized questions threaten to dismantle this image. Politicized questions are questions, related to salient societal issues with sizeable effects on a larger number of legal actors, which have polarizing effects: social justice, abortion, or climate change.
Literature suggests that such questions present a genuine dilemma for courts. On the one hand, politicization and political division of the legislative body minimizes the risk of legislative override. Thereby, it represents an opportunity for courts to make law with relative ‘impunity.’ On the other hand, a divided legislator is less able to secure the enforcement of the judgment, which in turn jeopardizes the court’s effectiveness. Decreased effectiveness and increased policy-making diminish judicial legitimacy.
In this article, we demonstrate, first, that the CJEU responds to growing doubt and polarization around European integration among the member states by deciding in larger, and more representative, chamber formations, which imply more deliberation and compromise. Second, we show that polarization leads to judicial self-restraint. It significantly reduces the likelihood that the CJEU will develop European law, expand legal concepts or entrench rights. The analysis draws on original data on all free movement of persons cases brought before the CJEU from 1954 to 2015.
The findings suggest that effectiveness-conscious international courts react to a politicized context in two ways. First, they seek to convince the political actors of the neutrality and objectivity of the judicial process. Additionally, they refrain from asserting their legal authority, narrow the application of existing doctrines, or water down the protection of acquired rights.