Enemies of the People? Forgotten Virtues of Judicial Self-Restraint: A Comparison between the ECJ and the ICJ

TY - ABST

T1 - Enemies of the People? Forgotten Virtues of Judicial Self-Restraint: A Comparison between the ECJ and the ICJ

AU - Afsah, Ebrahim

PY - 2017

Y1 - 2017

N2 - In developed legal systems, compliance with court rulings is not generally something that merits much scholarly or political, let alone popular concern. The judiciary’s structure and power are allocated by constitutional fiat, and submission to its verdict generally simply assumed. In fact, it is the very institutionalisation of such functional division of public authority that is the hallmark of municipal legal systems, setting them apart from primitive legal systems, whether tribal or international. The share of public authority allocated to domestic courts, the propriety of their functional mandate, and the wisdom of decision-making based on impersonal, technical legal expertise is rarely questioned. In recent years, this division of labour has come under attack by populist critics of ‘out of touch’ judges, who constrain majoritarian preferences based on context- blind (and therefore technically appropriate) application of legal reasoning.It is argued that the judicial activism of the ECJ has contributed to popular discontent with integration, due to it deliberate disregard for majoritarian preferences and national interests. Its methodological intransigence might thus have pushed a growing faction of the European demos toward exit from the legal order it seeks to develop.

AB - In developed legal systems, compliance with court rulings is not generally something that merits much scholarly or political, let alone popular concern. The judiciary’s structure and power are allocated by constitutional fiat, and submission to its verdict generally simply assumed. In fact, it is the very institutionalisation of such functional division of public authority that is the hallmark of municipal legal systems, setting them apart from primitive legal systems, whether tribal or international. The share of public authority allocated to domestic courts, the propriety of their functional mandate, and the wisdom of decision-making based on impersonal, technical legal expertise is rarely questioned. In recent years, this division of labour has come under attack by populist critics of ‘out of touch’ judges, who constrain majoritarian preferences based on context- blind (and therefore technically appropriate) application of legal reasoning.It is argued that the judicial activism of the ECJ has contributed to popular discontent with integration, due to it deliberate disregard for majoritarian preferences and national interests. Its methodological intransigence might thus have pushed a growing faction of the European demos toward exit from the legal order it seeks to develop.

UR - https://icon-society.org/previous-conferences/2017-conference/programme_2017/

M3 - Conference abstract for conference

T2 - ICON-S Annual Conference 2017

Y2 - 5 July 2017 through 7 July 2017

ER -