CHAPTER 9. International Courts and Democratic Politics

2014 ◽  
pp. 335-366 ◽  
Author(s):  
Karen J. Alter

This chapter discusses how the new terrain of international law is an artifact of a number of indirectly connected decisions: the decision to expand the substantive reach of international law, to embed international legal rules into national legal orders, to expand the extraterritorial enforcement capacity of domestic judges, and to create more international courts with a compulsory jurisdiction and access for nonstate actors to initiate litigation. International law and the prospect of international court (IC) legal review are now creating a global judicialization of politics regarding a growing range of issues. As the various case studies in the book have demonstrated, international courts are now adjudicating issues that used to be entirely subjects of national determination. And their decisions are affecting both domestic and international politics.


Author(s):  
Karen J. Alter

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. This book charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics. The book presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, the book argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. The book explains how this limited power—the power to speak the law—translates into political influence, and it considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.


Author(s):  
Jack Knight ◽  
James Johnson

Pragmatism and its consequences are central issues in American politics today, yet scholars rarely examine in detail the relationship between pragmatism and politics. This book systematically explores the subject and makes a strong case for adopting a pragmatist approach to democratic politics—and for giving priority to democracy in the process of selecting and reforming political institutions. What is the primary value of democracy? When should we make decisions democratically and when should we rely on markets? And when should we accept the decisions of unelected officials, such as judges or bureaucrats? This book explores how a commitment to pragmatism should affect our answers to such important questions. It concludes that democracy is a good way of determining how these kinds of decisions should be made—even if what the democratic process determines is that not all decisions should be made democratically. So, for example, the democratically elected U.S. Congress may legitimately remove monetary policy from democratic decision-making by putting it under the control of the Federal Reserve. This book argues that pragmatism offers an original and compelling justification of democracy in terms of the unique contributions democratic institutions can make to processes of institutional choice. This focus highlights the important role that democracy plays, not in achieving consensus or commonality, but rather in addressing conflicts. Indeed, the book suggest that democratic politics is perhaps best seen less as a way of reaching consensus or agreement than as a way of structuring the terms of persistent disagreement.


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