On Law, Politics and Judicialization - SOLIDORO

Alec Stone Sweet Professor of International Law at The University of Hong Kong

Presentation

Martin M Shapiro Professor of Law at the University of California at Berkeley

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On Law, Politics and Judicialization

Domenico G. P. Solidoro

Law, Courts, and Social Science

Judicial Law-Making and Precedent

That's it!

Critical analysis

Quite done!

Questions

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Overview

Why is it relevant to the study of Comparative Politics?

Judicial Law-Making The Paradox of Stare Decisis Horizontal and Vertical Stare Decisis Judicial Discretion

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Subtopics

Judicialization of Politics Interdisciplinary Approaches Political Jurisprudence Challenges to Traditional Legal Thought

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Subtopics

Chapter 2

Chapter 1

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Table of content

Topics we will cover today - Chapter 1 & 2

Overview

Martin M Shapiro & Alec Stone Sweet are two law professors and important authors in the judiciary panorama. Their study is considered a pillar in legal and judicial studies as it highlights how courts, as political actors, shape governance, enforce accountability, and influence policy-making across diverse political systems

- Judicialization also popular in IOs and IIs such as the WTO and the European Union

- Judges arbiters of public disputes and as a check on legislative and executive powers

- Courts have become critical players in governance, law-making, and policy enforcement. = JUDICIALIZATION OF POLITICS - The rise of a new constitutionalism established strong judicial protections for fundamental rights and limits legislative supremacy

Chapter 1 - Law, Courts, and Social Science

Examples: 1. The ECJ has integrated EU member states through its ruling, mostly creating a federal legal system 2. The WTO has judicialized trade disputes, making legal norms central to global trade relations

Global rise of judicial power, where courts have taken on quasi-legislative roles, intervening in political matters, and reshaping traditional governance structures. Result: reliance on judical rulings are a response to the growing complexity of governance and the need of impartiality in resolving cases.

Chapter 1 - Judicialization of Politics

The study of courts has connected several disciplines such as political science, sociology, and economics to further dive into the study of courts in governance, breaking down boundaries. Political science contribution: analysis of courts are veto players in policymaking and policy building. Legal studies contribution: legal scholars now use game theory (from economics) and social role theory (from sociology) to study how courts interact with political and social systems.

Chapter 1 - Interdisciplinary approaches

An example is when the US Supreme Court decides on civil rights, abortion, and healthcare, which demonstrate its political role.

A core theme of the chapter is political jurisprudence, a concept introduced by Shapiro, which frames courts as political actors in a state's system.- traditional portrait: neutral and independent; - authors portrait: involvement in governance like any other political institution.

Chapter 1 - Political jurisprudence

In a subsection of Chapter 1, Shapiro & Stone Sweet critique the legal orthodoxy that portrays courts as interpreters of law. Instead, they suggest that judicial decision-making derives from political influence, mostly affected by institutional dynamics and societal pressures.

Chapter 1 - Challenges to Traditional Legal Thought

Case Summary:

In Roe v. Wade, the Supreme Court ruled that a woman's right to choose an abortion was protected under the right to privacy implied by the Fourteenth Amendment.

Case Study: U.S. Supreme Court as a policy-influencing political actor - ROE v. WADE (1973)

Judicial Policy-Making:The Court did not interpret existing law but actively created a new legal framework for abortion rights by establishing the trimester system. This divided pregnancy into three stages, balancing state interests and individual rights. Judicial Discretion: The justices exercised significant discretion, applying constitutional principles to address a divisive political and social issue that legislatures had failed to resolve. Political Nature of Courts: The decision had widespread political implications, mobilizing both pro-choice and pro-life movements, and cementing the Court’s role as a powerful arbiter in social policy. Significance: Roe v. Wade demonstrates how judicial decisions are not merely neutral interpretations of law but can actively shape policy and influence societal values, supporting the argument that courts are deeply embedded in political and societal contexts.

Chapter 1 - Challenges to Traditional Legal Thought

* Stare decisis means “to stand by things decided” in Latin. When a lower court faces a legal argument already sentenced by a higher court, then the lower court will make their decision based on the previous court's decision.

- Relationship between judicial decision-making and law-making, - courts are not just interpreters of law but also creators of law.

- Focus on the doctrine of stare decisis* ("stand by things decided")- a constraint on judicial discretion- a mechanism for major legal change

Chapter 2 - Judicial Law-Making and Precedent

- In common law systems, courts regularly create and adapt legal rules.- Judicial decisions influence future cases, creating a chain of law known under the name of PRECEDENT

- Shapiro and Stone Sweet argue that judges act as policy-makers, shaping legal norms in response to societal and political needs

Chapter 2 - Judicial Law-Making

The principle of adhering to precedent is often seen as a safeguard against judicial overreach. However, the authors highlight its paradoxical role:while it constraints judicial discretion, it also enables incremental law-making

Judges often reinterpret existing precedents to adapt the law to new context and modernity, affirming that stare decisis is a flexible tool to gradual legal evolution

Chapter 2 - The Paradox of Stare Decisis

Vertical stare decisis: a binding obligation on the lower courts to refer to the previous decisions of higher courts in the same jurisdiction. (a US Supreme Court ruling is binding to all Federal Courts)

Horizontal stare decisis: an obligation of courts to give some weight to their previous decisions or other courts at the same level. (US Federal Courts)

Chapter 2 - Vertical and Horizontal Stare Decisis

legal and political outcomes.

This undescores their role as

active players in shaping

significant discretion in interpreting laws and choosing which precedents to apply.

Despite the constraints of precedent,

judges retain

Chapter 2 - Judicial discretion

Critical analysis

By analyzing Chapters 1 and 2 of Martin Shapiro and Alec Stone Sweet from their book "On Law, Politics, and Judicialization," a compelling critique of traditional legal scholarship is provided, emphasizing the political role of courts and their profound influence on governance. Their interdisciplinary approach bridges gaps between law and social sciences, offering a richer and more nuanced understanding of judicial behavior. Particularly insightful is their analysis of stare decisis as both a constraint on judicial discretion and a tool for legal evolution, highlighting the complexity of judicial decision-making. However, their focus on the political nature of courts may oversimplify the ethical and normative dimensions of judicial decision-making, as not all judicial actions are politically motivated; many are guided by legal principles and moral reasoning. The book remains highly relevant in a world where courts increasingly mediate politically contentious issues, such as climate change, immigration, and digital privacy, raising critical questions about the legitimacy of judicial activism in democracies.

Questions

These are my questions based on the readings

Question 1

Question 2

How does stare decisis help maintain stability in the law, and when might precedents limit a court’s ability to address changing societal needs?

How does the increasing judicialization of politics, as described in Chapter 1, affect the legitimacy of courts in democratic systems? Does their growing role as political actors undermine their claim to neutrality?

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