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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Sociological Approaches to International Adjudication

Salvatore Caserta, Mikael Rask Madsen

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 24 September 2022

Judges — Sociology of international law — Theory of international law — International procedural law

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Disclaimer

The theoretical outline in the first parts of this article draws on and in part reproduces an earlier work: MR Madsen, ‘Sociological Approaches to International Courts’ in K Alter, CPR Romano, and Y Shany (eds), Oxford University Press Handbook of International Adjudication (OUP 2014) 388–412.

B.  Introduction

Over the past three decades, International Courts (‘ICs’) have become a central feature of contemporary international law, resulting in new forms of judicialized global governance (Romano, 1999; Alter, 2014). This development has not escaped the attention of scholars who have already studied the political and legal implications of the judicialization of international law. While these studies initially were centred on ICs in the context of European integration (Alter, 2001; Sweet, 2004; Vauchez, 2010; Christoffersen and Madsen, 2011; Mayoral and others, 2014; Martinsen, 2015), recent studies cover more broadly how ICs develop regional and national law and influence politics across the world. A body of literature is emerging on ICs in Africa (Alter and others, 2016; Gathii, 2016; Daly and Wiebusch, 2018; Huneeus and Madsen, 2018), Latin America (Alter and others, 2012; Huneeus, 2016) and the Caribbean (Cabatingan, 2016; Caserta and Madsen, 2016; Caserta, 2017). In this entry, the focus is on the sociology of international adjudication; that is, we suggest ways in which sociological theory can open up new avenues for analysing how social factors influence international adjudication. To this purpose, we apply a series of sociological approaches to the realm of ICs. We use these theories to unpack both how ICs adjudicate and how their adjudicative practices are in part steered by broader social and political structures.

The main content of this entry is split into two large sections (secs C and D below), where we address first a set of general sociological starting-points of particular relevance for developing a sociology of international adjudication; we then apply these theoretical starting-points to different ICs across the globe. In the theoretical sections, our focus is primarily on those theories that are typically referred to as the classics in sociology, respectively interpretivist (Weber), functionalist (Durkheim) and critical (Marx) perspectives. In the empirical sections, each of these approaches is applied to the adjudicative practices of different regional ICs, including the European Court of Human Rights (ECtHR); the Inter-American Court of Human Rights (IACtHR); the Caribbean Court of Justice (CCJ); the Central American Court of Justice (CACJ); the Court of Justice of the European Union (‘CJEU’) (European Union, Court of Justice and General Court); and the East African Court of Justice (EACJ).

C.  Sociological Perspectives on International Adjudication

Approaching international adjudication from a sociological perspective implies stepping outside the inner-normative order of ICs, which most often is taken as the object of inquiry of legal analysis. This does not entail, however, leaving doctrinal law all together behind. HLA Hart famously distinguished between internal and external perspectives on law (Hart, 2012) and this handy distinction has frequently been used to precisely separate doctrinal from contextual analyses of law and legal institutions. From the Hartian perspective, a sociological analysis of adjudication falls into the category of a mere external and contextual perspective. Although the distinction between internal and external analyses to law and legal institutions seems compelling at a first glance, what we suggest in the following is not an analysis of international adjudication that explores the mere effects of factors normally assumed to be external to doctrinal legal analysis. Taking the lead from New European Legal Realism (Holtermann and Madsen, 2015), we rather suggest that a sociology of international adjudication concerns both the internal and external dimensions of law and institutions. Put differently, a sociological study of international adjudication needs to account for how law both develops in the macrocosm of legal interpretation and how those developments, simultaneously, take place within broader social structures. Our point is that both dimensions – the internal as well as the external – need to be accounted for in a genuine sociological interpretation of international adjudication. In fact, the external/internal divide derived from Hart creates in our view a false dichotomy between, on the one hand, the law as perceived by legal formalism in terms of an internalist account of legal norms and, on the other hand, a wealth of empirical approaches to law perceived as externalist. Thus, contrary to Hart, we suggest that a sociological approach to international adjudication precisely seeks to reconcile the internal and external levels and develop a more integrated analysis of law that would make the so-called doctrinal law intelligible (compare the analysis in Bourdieu, 1987).

In what follows, we present three classic sociological approaches, which we apply to the realm of international adjudication. In line with standard sociology, we categorize them as respectively interpretivist, functionalist and critical approaches. It should be underlined that most of these theories were not originally developed to provide an integrated sociology of law and adjudication. Rather, they were attempts at understanding society, either by focusing on its evolutionary processes of differentiation or by analysing how domination and power determine societal changes. We believe, however, that these theories can provide meaningful tools for guiding the study of international adjudication in both its internal and external aspects.

1.  Weberian and Post-Weberian Approaches: Legal and Institutional Rationalities

Max Weber’s analysis of the evolution of law is one of the most fundamental studies in the sociology of law and has inspired works across a range of disciplines interested in the power, authority and legitimacy of law and the state. What is central to Weber’s analysis of law is the existence (and co-existence) of different forms of rationality guiding the actions of individuals and institutions in society. This allows him to develop a set of typologies for analysing how law has emerged and developed from ‘formally irrational’ and ‘substantively irrational’ law to becoming ‘formally rational’ and ‘substantively rational’ (Weber, 1980). According to Weber, each of these rationalities reflects different forms of domination in society, which are then reflected in the law. The ‘formally irrational’ law corresponds to charismatic domination; ‘substantively irrational’ law reflects traditional domination; ‘formally rational’ and ‘substantively rational’ law suggest the emergence of legal domination and, thus, of modern law. While it is tempting to see this as an evolutionary pattern towards ever-greater rationality, Weber does not seem to argue that this is the case. The analytical take-away is instead that elements of these different ideal-typical representations of law are present in society in various forms, yet with some being more dominant than others.

Generally, the Weberian analysis proceeds by the use of ideal-typical representations like the just-mentioned notion of rationality. These are abstract models devised to help identify key traits of society (or law or institutions) in clear and systematic ways, and, as such, they ultimately allow for comparisons across societies and institutions. The basic idea behind the notion of ideal-types is that, since society consists of an almost infinite set of social relations, there is a need for a conceptual apparatus that introduces a logic to society and the means for both selection and abstraction. Put differently, by introducing ideal types, Weber provides a theoretical framework to identify the basic contours of an object of inquiry, which in turn allows for empirical analysis.

In general terms, Weberian interpretive sociology is a form of analytical middle-ground between micro and macro approaches. As also attempted by more contemporary sociologists such as Anthony Giddens and Pierre Bourdieu, Weber seeks to reconcile micro and macro levels of society by the introduction of a framework connecting these levels. His solution is however not the conventional middle-range social science position. Although Weber does not reject the usual units of middle-range social scientific analysis such as groups, collectives and institutions, he underlines that only individuals can have intentions. Consequently, individuals provide a key unit of analysis, even if the goal is not to understand actors’ individual motivations as such, but societal developments driven forward by groups of individuals or, for example, institutions.

The applicability of Weber’s insights to the sociology of international adjudication and ICs is straightforward. First, different from the original legal realist take on judicial actors and many of the later legal realist-inspired studies of judicial behaviour, the focal point of a Weberian study of adjudication is as mentioned not the individuals as such, but the societal and institutional developments which can be made intelligible by exploring individuals’ motivations and their impact on the rationalization of institutions. In this regard, Weber provides the tools for conducting a historical-sociological study of law with a focus on the transformation of the institutions of society of which courts are but one.

10  In relation to this, the sociology of Weber provides the theoretical tools to study the legitimacy of ICs as institutions of global society. In the basic Weberian scheme of analysis, what makes a certain practice of power legitimate is the process through which that institution justifies its exercise of power and gains social acceptance. The aim of this so-called ‘interpretive sociology’ [Verstehende Soziologie] is precisely to link habits and motives to action; that is, to make action intelligible by linking it to the agents in terms of a specific form of ‘methodological individualism’ (Hewa, 1988). This particular approach is best illustrated by Weber’s seminal analysis of how the Protestant sprit influenced the emergence of capitalism. The spirit of Protestants as social actors – par excellence internalized norms of duty and correctness – is according to Weber central to explaining why a capitalist economy could take off rapidly in some parts of the world, for instance Germany.

11  Applied to ICs, it follows from this that their legitimacy does not stem from them being representative of society, but from them being reflective of society (Madsen, f2012). In other words, the legitimacy of a given IC cannot simply be statistically deduced from the judges’ representativeness of society and politics at large. This also means that even the best and most carefully thought out procedures of elections of judges, in the most extreme cases seeking to make courts representative as sort of quasi-democratic political institutions, might ultimately fail if the court’s practices are not reflective of society. On the other hand, the profiles of a specific set of judges might very well help them gain legitimacy in specific environments, ranging from law to politics and civil society (Terris and others, 2007). In short, a Weberian approach suggests studying how ideas and moral habits influence practical legal behaviour. This, in turn, allows to identify, among other things, what guides the behaviour of judges when they adjudicate: what are the ethos and particular maxims marking the bench and what are their implications on judging.

12  This approach, moreover, allows for understanding ICs as evolving institutions that develop specific institutional and legal rationalities which are reflective of the institutions’ embedded rationality – or situated cognition – in their decision-making processes (Madsen, 2011). Thus, different from most law and political science scholarship, which tends to place ICs in predetermined categories, for example as transplanted institutions that resemble their national counterparts or other ICs, Weberian analysis seeks instead to explain the historically different rationalities of the institution in question, and how these are reflective of both society at large and the very agents of the institution. Hence, this particular way of approaching ICs provides a sociologically-informed alternative for understanding questions related to the legitimacy of ICs; that is, in this approach, legitimacy is neither tied up to the legalist notion of legality, nor envisioned as an abstract political philosophical notion (see discussion in chapter 1 of Alter and others, 2018). Instead, through Weber, it is possible to explain how the legitimacy of ICs is contingent on different forms of domination – from traditional to charismatic to legally-rational – and thereby embedded in society (Weber, 1978).

2.  Functionalism and Systems Theory: Explaining the Coherence and Functionality of Law

13  Among the founding conceptions of sociology, we also find the work of Emile Durkheim, who introduced a biological-inspired theory of society in terms of an organism. In his view, society is constituted and maintained through the people’s collective consciousness; that is to say through people’s norms, beliefs and values. At the heart of Durkheim’s theory is an analysis of how social integration could be maintained when traditional institutions, such as the family and the church, were replaced by modern economic relations. Hence, in Durkheim’s evolutionary model, the point of departure is the transformation from primitive to modern (and increasingly differentiated) societies. This leads to a change in the forms of solidarity within a given society from mechanical to organic, following a thesis of societal differentiation. (Durkheim 1893).

14  Explaining this evolution, Durkheim finds, somewhat similarly to Weber, that law and legal institutions are linked to the emergence of modern society. His sociology, however, has less to offer for understanding courts specifically. His view on courts is limited to understanding them as institutions that deliberate ‘on behalf of society in a manner somewhat similar to that of the legislature’ (Cotterrell, 1999, 172). Durkheim’s main interest is, instead, in law as a means of stabilizing and integrating society. Primitive (or traditional) societies are generally kept together by kinship, religion and tribal justice. In modern societies, interdependences between different specialized areas of work secure the integration of society. In this regard, law has an important function as an instrument for integrating these differentiated social spheres. This is precisely what Durkheim means when he argues that courts ‘deliberate’ on behalf of society at large, namely that with their rulings they secure society’s coherence against its increased differentiation and specialization.

15  Durkheim’s approach is applicable to understanding the role of ICs in contemporary global society (Aksenova, 2019). In social scientific terms, the question is what functions ICs perform with respect to integrating regional or global society, rather than, as is most often the case in current literature, the more specific and limited functional aims of individual ICs. There has been a tendency in scholarship to emphasize the limited functional purposes of ICs in order to raise broader questions related to ICs’ effectiveness (Shany, 2012; Helfer, 2013), authority (Hooge and others, 2017) and legitimacy (Grossman and others, 2018). The basic problem with functionalism in this regard is its inherent risk of circularity: for example, if effectiveness is merely measured against the benchmark of the explicit function formally attributed to an IC, this leaves out of an analysis of the social processes that might in fact better explain why ICs are – or are not – effective. The sociology of Durkheim is in our view more apt for analysing ICs as providers of specialized labour in contemporary society. Basically, Durkheim’s analytical tools enable an analysis of ICs as part of the construction of contemporary society at large – both for what concerns its specialized components and those elements that maintain the coherence of society notwithstanding its increased specialization. Such a combined macro-level analysis of ICs and global society is yet to be conducted using post-Durkheimian sociology. Yet, the basic social scientific tools are clearly available (see however these related works: Münch, 2008; Teubner, 2012; Thornhill, 2012).

16  A third and influential way of using Durkheimian sociology is in the tradition of structural-functionalism and systems theory, which draws both on the Durkheimian differentiation thesis and the basic notion of functions. Structural functionalism in law is often associated with Talcott Parsons who argued that courts’ main function is to integrate society’s different subsystems by ‘mitigat[ing] potential elements of conflicts and to oil the machinery of social intercourse’ (Parsons, 1962). Building on the combined insights of structural functionalism and notions of differentiation and integration, students of Parsons have provided even more detailed explorations of the ‘integrative functions’ of courts in society in particular, as in the cases of Harry C Bredemaier (Bredemaier, 1962) and the specific role of law and courts to ‘stabilize normative expectations’ as developed by Niklas Luhmann (Luhmann, 1993).

17  In international law more specifically, a number of scholars have pursued this line of thinking. Armin von Bogdandy and Ingo Venzke have used such frameworks for theorizing the functions of ICs in international society. According to these authors, ICs perform at least four functions: 1) Settling disputes, 2) Stabilizing normative expectations, 3) Making law and 4) Controlling and legitimating public authority (Bogdandy and Venzke, 2013). Although they do not cite Durkheim directly, this line of reasoning clearly echoes a Durkheimian way of thinking about courts in society mixed with the insights of Niklas Luhmann. The influence of Durkheim can also be seen in the often cited thesis of the fragmentation of international law, which – at least implicitly – is based on a functionalist reading of public international law (Koskenniemi and Leino, 2002). This scholarship builds in fact on a very long tradition in international law of perceiving public international law in functionalist terms. Exemplary in this regard is Hersch Lauterpacht’s The Function of Law in the International Community (1933), which also relies on the Durkheimian idea of specifically linking international law and international community (Koskenniemi and Leino, 2002).

18  Functionalism overall offers a general sociological theory of law and courts in society based on a specific rational reading of courts as being functional to differentiated modern society. While it is hard to disagree with the overriding claims of these theories, partly because of the level of abstraction they operate on, it is plain to see that they also tend, to a considerable extent, to reproduce the very claims of formalist legal scholarship and even law itself. This criticism can also be directed at much scholarly literature using functionalism in a narrow way, seeking to establish a direct causality between an identified problem and its solution via ICs. Some early functionalists were however fully aware of this. For example, Robert K Merton explored the ‘dysfunctions of courts’ whereby he himself approached critical studies to which we now turn (Merton, 1949).

3.  Critical Approaches: Power, Elites, Authority

19  A third classic line of sociological inquiry into courts can be derived from Marxism and what subsequently has become known as critical theory. The critique of functionalism alluded to in the previous paragraphs provides a good starting point for introducing critical theory and its variants. Critical theory, in fact, shares with the Durkheimian school an interest in social structures, yet the underlying assumption of coherence of functionalism is explicitly rejected by Marxist legal scholarship. Contrary to the functionalist focus on coherence, in Marxism the driving force of society is conflict and domination (for example Chimni, 1999). In classic Marxist writings, law and courts are perceived as tools of social domination in the hands of the ruling class. In this framework, judges are primarily viewed as agents of a suppressive superstructure mainly put in place to ensure the status quo and, thus, the interests of the ruling elite. Put simply, while functionalism takes as a starting point a thesis of differentiation of society, classic Marxism argues that stratification is the dominant social process in society. Accordingly, while functionalism seeks to elaborate on how courts and legal adjudication are functional to the maintenance of society, Marxists seek to understand how institutions, for example courts, relate to broader societal questions of inequality.

20  There are in practice important differences between classical Marxism, with its main focus on industrial relations in terms of property owners and labour, and contemporary critical legal studies, with their ambition to critique modern society more generally and to liberate the individual from the forms of domination characterizing it. Our goal is not to discuss these many differences here. Instead, we will focus on how critical Marxist theories – often in combination with Weberian readings of institutions and professions – have significantly influenced contemporary sociological studies of ICs. Of central importance here is a body of literature that has emphasized elites as key agents of law, conceptualized international law and courts as adversarial social fields, and focused on the power of law – both as symbolic power, following the Bourdieusian tradition, and as a structural phenomenon with regard to, for example, notions of empire.

21  These studies started to emerge in the 1980s largely as part of inquiries into the globalization and transnationalization of law and legal professionals (for example Santos, 1995). A particularly important contribution in this regard was the analysis of international commercial arbitration conducted by Yves Dezalay and Bryant Garth in Dealing in Virtue (Dezalay and Garth, 1996). Using both legal and sociological insights, Dezalay and Garth demonstrated how the construction of the field of international commercial arbitration could be explained as a battleground between different global elites. This work draws on two different research traditions in sociology: first, a sociology of professions which analyses how professions increasingly compete with one another in the construction of new transnational markets and arenas (Dezalay and Sugerman, 1995). Second, a sociology of elites which explores how a set of distinct social groups of (legal) agents hold the power to define new areas of legal practice, with consequences not only for the profession at large but also for international politics and society (Dezalay, 2004). Drawing on Pierre Bourdieu, Dezalay and Garth frame these battles as social fields, that is, as spaces of contestation over defining the law in which different agents occupy positions relative to the portfolio of capitals they can muster and which are ‘capitalized’ according to the logic of the specific field in question (Bourdieu, 1987; Dezalay and Madsen, 2012).

22  This work also has a methodological feature that has turned out to be of special interest to understanding ICs and their practices. Following Weber, Dezalay and Garth challenge the notion that institutions in themselves can explain the emergence of new transnational legal fields. Instead they demonstrate how individual agents, and particularly the agents’ personal and professional trajectories into the fields and institutions in question, provide unique data for understanding how institutions come about and transform broader social spaces. Using a methodology, which they term ‘collective biographies’, they map out the characteristics of a social field in terms of the combined and accumulated trajectories of its main agents. This is also where they deploy the Bourdieusian notions of capitals – social, educational, political, legal, etc. – to explore the specific legal elite formations of these socio-legal spaces. Dezalay and Garth’s identification of legal elites as an entrance to studying transnational legal fields has had considerable impact on a series of in-depth empirical studies of ICs, ranging from the areas of international criminal law to European law, which emerged at about the same time in the beginning of the 2000s. A key book in this regard is Justice in the Balkans (Hagan, 2003), which has inspired an ever expanding scholarship on international criminal justice (Hagan and Levi, 2005; Christensen, 2015). Similarly, a growing number of scholars have deployed these approaches to inquire into the making of European courts and legal integration (Rasmussen, 2008; Cohen, 2010; Vauchez, 2010; Madsen, 2011). Exploring the making of European law and its relative force, these authors have highlighted how larger societal and geopolitical currents have had an enduring impact on the evolution of European law and institutions. Similar to the work in the field of international criminal courts, these studies have inquired into the deeper socio-logics of European ICs combining insights from theories of professions and professionals with critical approaches to law and its power in society which highlight how law is mobilized in specific cases or as part of broader legal movements (Alter, 2009; Vauchez, 2010; Alter and others, 2018). Scholars have also used these approaches to explore international courts and adjudication across the globe (for instance Caserta, 2016).

23  It should be noted that none of the cited studies are primarily exploring adjudication as such, but are rather seeking to make adjudication intelligible as part of broader social and political processes. In this light, it is unsurprising that these studies tend to combine sociological theories of social spaces or figurations, derived from Norbert Elias, Michel Foucault and Pierre Bourdieu, and theories on the power of professional’s expert knowledge. Effectively, many of these studies approach the making of law as a twin process of social structuration, taking place in the interplay of agency action and structural transformation. The goal is an exploration of the complex processes of how international law is fabricated in a microcosm of adjudication and how that law gains force in society. Similar to current explorations of the authority of ICs (Alter and others, 2016), these studies are basically in search of the social conditions making the power of law and international adjudication possible.

D.  International Adjudication in Action

24  In this section, we apply the theoretical positions identified in the previous sections to examples drawn from recent empirical studies of ICs. For pedagogical reasons, we have attempted to distinguish the application of the different theories in the case studies. In the practical reality of research, it is however often more fruitful to apply multiple approaches to fully explore the role of ICs in the making of regional and global orders and societies. But here we separate the approaches.

25  In line with our broad categorizations of the sociological literature on ICs, we have divided this section into three parts. The first focuses on the evolutionary explanations of the transformations of ICs, where we analyse ICs from Weberian and functionalist perspectives. We then turn to questions related to power and ICs. More specifically, we highlight the central role of elites with regard to the design, activity and evolution of ICs. Finally, in the third section, we use functionalist insights to depict how ICs contribute to the creation of global systems of law.

1.  The Evolution of International Courts

26  In this sub-section we provide two examples of evolutionary changes of ICs, using the cases of the ECtHR and the IACtHR. In the first case we deploy Weberian sociology to explore evolution as a rationalization process. In the second case we turn to functionalism as a means for describing how ICs devise new doctrinal means for fulfilling their basic objectives.

a.  Evolution as a Rationalization Process: The Case of the European Court of Human Rights

27  The framework of analysis proposed by Weberian sociology of law is particularly useful for exploring how institutions – in our case ICs – evolve. More precisely, this theory offers ways of identifying different stages of institutional development by introducing ideal-typical presentations of institutional practices at different moments of development. In this brief illustration of the applicability of Weberian sociology of law to international adjudication, we will briefly focus on two very different stages of the development of the ECtHR, namely the initial institutionalization of the court where the judges had to carefully develop the court’s role vis-à-vis the somewhat reluctant Member States and, secondly, the recent transformation of the doctrine of subsidiarity into a doctrine of process-based review. Using a Weberian viewpoint, these different moments of institutionalization can be captured with ideal-typical framings of varied forms of legal rationality. As mentioned above, in the context of law, Weber distinguished between ‘formal irrational’, ‘substantively irrational, ‘formally rational’ and ‘substantively rational’ law. What thereby was highlighted was that the rationalization of law, although never complete, went towards a formalization of law where jurists increasingly dominated the practice of law using a professional but disinterested model of conflict solution and interpretation. Yet, this process of formalization inevitably collided with notions of substantively rational law, seeking a material (or substantive) notion of justice as opposed to a mere formal one (Kalberg, 1980). Although formal legal rationality prevails, this conflict between legal formalism and substantive justice remains to this day a major tension in law.

28  The ECtHR offers an interesting case for understanding these general socio-logics in action. The very subject of law under the ECtHR’s jurisdiction, human rights, is perhaps particularly prone to trigger clashes between substantive rationality (justice) and legal formalist rationality as formalism potentially leads to a ‘disenchantment’ of human rights law which, in turn, elicits support for justice based reasoning (Kennedy, 2003). In other words, in law there is an inherent conflict with legal formalism, which is further exacerbated in the field of human rights, namely the pull of justice as a substantive notion and competitor to formal legal rationality. Moreover, the field of human rights is marked by a particular tension between law and politics that plays out across national and international dimensions (Madsen, 2010), which is due to the ways in which international human rights constrain the exercise of political power. This is interlinked with the inherent justice-formalism tension as political claims in the realm of human rights are often expressed as justice claims. A recent example is the often-heard critique that the ECtHR pursues a political agenda which is unjust to Member States as it limits their legitimate political decisions (Flogaitis and others, 2013; Madsen, 2016; Popelier and others, 2016).

29  When the original Court opened in 1959, it was somewhat of an institutional experiment as no IC had at that point adjudicated international human rights. Yet, it was also part of a longer institutional development of international law in terms of building new ICs (Madsen, 2014). In fact, the first bench of the ECtHR resembles very much the kind of international legal elite that had already been serving in the Hague: a sort of ‘honoratiores of law’ who were not only well versed in law but also connected in many adjacent fields, including politics and diplomacy (Madsen, 2007). As the Court only received very few cases over its first decade of operation, it developed a case-by-case approach, which made every case a test of its authority. Consequently, the Court devised an approach that allowed for balancing national interests and general objectives of human rights. Concretely, this resulted in the Court finding very few violations, yet avoiding major clashes with the Member States and instead building up relationships with the latter. The legal rationality of the nascent Court was thus neither legal formalist nor substantively rational, but rather a form of legal diplomacy that aimed at striking a subtle balance between appeasing the Member States and developing the case-law of the Convention (Madsen, 2011). This legal approach greatly reflected the composition of the bench, which precisely combined knowledge of law and diplomacy. Thus, to make intelligible the law production of the original court, a Weberian approach would seek to explain the making of a particular legal approach by a exploring the rationality of the agency of that Court.

30  If we fast forward to the current ECtHR, the situation is strikingly different, both with regard to the composition of the bench and the production of law. Since approximately 2010, the system has focused on finding solutions to its large backlog of cases and growing non-compliance rate (Madsen, 2016). A key strategy has been to move the burden of ensuring the compliance with the European Convention towards the national level of law and politics. From the perspective of Weberian sociology of law, these developments are interesting because they suggest yet another form of legal rationality at play. Since the late 1970s, the ECtHR had moved beyond legal diplomacy and made itself known for a sophisticated rights-oriented jurisprudence that was afraid of challenging the Member States’ legal and political practices. This new approach involved a set of carefully crafted legal tools for updating the contents of the Convention, notably the doctrines of ‘emerging consensus’ and ‘living instrument’. Yet, the Court also allowed a level of difference in the implementation of the Convention via the doctrine of margin of appreciation which dates back to the days of legal diplomacy. In recent years, the Court has however developed a new approach to rebalance the protection of European human rights, which is procedural in nature and ultimately tending towards formal legal rationality. Thereby, the Court has – under certain specific circumstances – moved emphasis from substantial individual justice to more abstract procedural justice. If the Member State institutions can document that they have conducted a transparent review of the problem and the relevant ECtHR case law, as well as having involved the appropriate actors, the ECtHR will be less likely to overrule the State’s decision (Çali, 2018).

31  The Court’s reorientation has been described as ‘qualitative, democracy-enhancing’ (Spano, 2014), a description which might be true in some instances, although it overall appears more like a slight retreat vis-à-vis the Member States. And while the original Court’s approach closely reflected the judges themselves and their multiple specializations in law and politics, the current transformation reflects a bench that is far more attuned to formal legal rationality. Put differently, the Court is moving away from substantive justice to focus on procedural justice. This is further reflected in analysis of the composition of the current bench which suggest that the Court increasingly has been influenced by judges with a background from national judiciaries (Madsen, 2015).

b.  Judging from Distance: The Inter-American Court of Human Rights’ Doctrine of Conventionality Control

32  The behaviour of a court and its adjudicative practices can in part be explained by investigating the agency of the court in its interface with changing contextual dimensions as suggested by the brief Weberian analysis of the ECtHR. Another way of going about answering the same question is to use a more functionalist approach to adjudication; that is, to explore the objectives – in functionalist terms – of doctrinal development. A good case for illustrating this question is the development of the doctrine of conventionality control by the IACtHR, a doctrine aimed at imposing the American Convention on Human Rights (1969) in the legal orders of the Member States in a context of limited case-load before the court (Conventionality Control: Inter-American Court of Human Rights (IACtHR)). The doctrine prescribes that domestic courts shall review laws and official acts for conformity with the American Convention, using the Court’s judgments as authoritative statements (Almonacid Arellano and Others v Chile, 2006). Strikingly, if the recent changes in the approach and rationality of the ECtHR are in part triggered by case overload, in the context of the IACtHR the most prominent jurisprudential development is in part a result of the limited case load before the court (Contesse, 2018; Huneeus and Madsen, 2018). Basically, seen from a functionalist perspective, the IACtHR – aware of its own limits as a consequence of a meagre volume of case law – developed this doctrine to fulfil its basic goal of being the guarantor of the Convention (compare with the argument in Shany, 2012). Importantly, this doctrine also reveals the limits of the IACtHR for actually settling disputes and developing law as the heavy lifting is left with the domestic courts. Thus, in functionalist terms, the IACtHR devised the doctrine in order to develop the legal means for imposing from a distance the Inter-American Convention.

33  The historical background to the doctrine of conventionality control provides some further context to its development. When democracy was gradually reinstalled in Latin America in the 1980s and 1990s, the Inter-American system faced a perhaps surprising challenge. While the system had been legitimized in its struggle against authoritarian regimes in the previous periods, the now democratic States were not receptive to the same treatment (Morales, 2013). The key point of contention was whether the Inter-American Commission of Human Rights should merely be promoting human rights or should it continue reporting on the human rights situations in the Member States, including reviewing national legislation’s compatibility with the Convention (Huneeus and Madsen, 2018). It is at this precise point in time that the IACtHR entered as key institution in the American system. Coming to the rescue of the Commission, the IACtHR ruled that it followed implicitly from the Convention that the Commission had such powers, including a review power (Certain Attributes of the Inter-American Commission on Human Rights, Advisory Opinion OC-13/93, Inter-Am. Ct. H.R. (16 July 1993)). Thereby the road was paved for conventionality control, as the same implicit power also applied to the Court itself.

34  Although the political leaders of the Member States were not all eager to empower the IACtHR, some of the new – or newly empowered – constitutional courts in the Member States were more willing to collaborate on human rights protection. Such courts in Argentina and Colombia took the lead in the early 1990s and many others followed suit in the following years. For example, the Argentine Supreme Court ruled that human rights treaties – like the American Convention – were binding for the country as such and therefore also the judiciary. The new Colombian Constitutional Court added to the evolution by declaring that it had the power to review legislation under human rights treaties. Although the ground was fertile for rolling out the Inter-American human rights system, the IACtHR suffered from the fact that it only dealt with a few cases per year and operated on a shoestring budget (Huneeus and Madsen, 2018). It therefore needed an alternative way of fulfilling its functional goals.

35  Considering the objectives of the American Convention in general and the Court more specifically, the turn to the doctrine of conventionality control seemed not only functionally relevant; it was also close to the only way out if the IACtHR was to exercise its role. In 2006, the Court delivered a landmark decision where it declared that all courts under its jurisdiction were obliged to review laws and acts for conformity with the IACtHR’s jurisprudence (Almonacid Arellano and Others v Chile, 2006). While the legal basis of this stance can be debated, it created a web of human rights norms in Latin America which had the trademark of a genuine legal system where the IACtHR was hierarchically at the top, although its power was somewhat diffuse. This solution, which from a functionalist perspective seems elegant, however triggered some resistance from a number of Member States and the Court has faced a fair amount of pushback and even backlash, notably from Venezuela and the Dominican Republic (Madsen and others, 2018). Functionalism is perhaps not the best theoretical framework for understanding those political processes as argued in the above theoretical section. In the following sub-section, we turn to the question of power and international adjudication to illustrate sociological approaches that are better suited for that kind of analysis.

2.  Power and International Adjudication

36  While the Weberian and functionalist approaches just discussed seek to explain how ICs develop specific institutional and legal rationalities (and resulting doctrines), critical approaches help to explain how broad structural power dynamics and the agency of different elites influence their evolution and practices. In this regard, the creation and initial rulings of both the Caribbean Court of Justice (CCJ) and of the Central American Court of Justice (CACJ) provide interesting case studies. Mainstream functional approaches describe these two ICs as mere economic courts largely designed on the model of the CJEU (Alter, 2013). Yet, critical approaches inspired by the sociology of Pierre Bourdieu and concerned with the study of the construction of international legal fields and transnational legal elites have reached different conclusions. From a power and actor-based perspective, rather than being mere copies of the CJEU, the two Courts are better understood as the institutional outcomes of the diverging and competing national modes of producing law, specific (legal) professional interests, and differences in the visions for law’s role in the Caribbean and Central America. These factors in turn have shaped the institutional outlook and the practices of both Courts (Caserta, 2017). Yet the institutional end-results are different. The CCJ is deeply embedded in the Caribbean process of decolonization from the United Kingdom, while the CACJ is a post-conflict IC.

a.  The Caribbean Court of Justice: A Post-Colonial Common Law International Court

37  In the literature, the creation of the CCJ is often treated as a rather unproblematic event which took place in conjunction with the end of the Cold War. At this point in history the Member States of the Caribbean Common Market (‘CARICOM’; Caribbean Community (CARICOM)) decided to establish a regional judicial institution to find a solution to the high rate of non-compliance with regional laws and policies that had affected the original integration system since it was first established in 1973 (Berry, 2014). In other words, the CCJ was a more or less natural and rational next step in order to fulfil the system’s own objectives.

38  When approached from a power and actor perspective, however, it becomes obvious that this is only a part of the story and that the historical trajectory of the CCJ is also – and in particular – marked by long-standing issues related to Caribbean decolonization from the United Kingdom (see, for instance, O’Brien, 2011; Caserta and Madsen, 2016). The CCJ, in fact, is the most recent of many attempts – the first dating back to 1901 – at replacing the old system of British colonial justice in the region, constituted by appeals to the Judicial Committee of the Privy Council in London as the local apex court of those Caribbean countries that were once English colonies.

39  This double structural context characterized by issues relating to globalization and decolonization is central for understanding the present Court. Influenced by these precise contexts, we can observe an on-going power struggle between two groups of elite lawyers, each with very different ideas with regard to Caribbean integration through law. Initially, the area was dominated by a relatively small but powerful group of Caribbean lawyers, who, because of the lack of legal education in the region (the first local Faculty of Law was established only in 1970 in Barbados) had pursued their legal education in the United Kingdom. During their formative years in England, these Caribbean lawyers developed specific sensitivities related to Caribbean law both as an extension of English law and as a tool for completing the circle of Caribbean independence from its metropolitan power. Yet, because of the ideological and professional connections that these lawyers had developed with the colonial metropolis, they also developed scepticism towards local legal knowledge. Importantly, for a long time, these lawyers perceived the project of a common Caribbean court with suspicion, as they feared that replacing the Privy Council with a local court would jeopardize the quality of law in the Caribbean. At the same time, the creation of a local court would also challenge their privileges and power which were constructed in symbiosis with the hegemony of common law made in England, yet practiced in the Caribbean by this local but transnational legal elite.

40  In the 1970s, however, these lawyers’ unique position of power in the field began to be challenged by the arrival of a new grouping of Caribbean lawyers locally educated at the Faculty of Law of the University of the West Indies (‘UWI’). These lawyers did not have the same vested interest in maintaining the Privy Council as the apex court of the Caribbean. Also, and as a result of their Caribbean legal education, these lawyers had a far more favourable view in relation to the idea of establishing a local court with the double objective of replacing the Privy Council and strengthening the regional integration project. These two competing professional and ideological views remained in conflict until the early 2000s, when, as a result of the Privy Council human rights turn in capital punishment issues, both the young and the old Caribbean lawyers joined suddenly forces to establish the present CCJ with both an appellate and original jurisdiction (for a more detailed account of this processes, see Caserta and Madsen, 2016).

41  These changing power dynamics not only help explain the conflict over the idea of a common court; they also help explain the particular institutional design of the CCJ. The Court was in practice created with a unique double jurisdiction over CARICOM law (the Original Jurisdiction) and over criminal and civil matters from the Member States (the Appellate Jurisdiction). This peculiar jurisdiction reflects largely the socio-political context characterizing the negotiation of the CCJ. The CCJ’s original jurisdiction signals a more judicialized approach to Caribbean integration, and the Court’s appellate function signals the repatriation to the Caribbean of the development and control over law (Caserta and Madsen, 2016).

42  The particular context of the Caribbean legal field is fundamental also for explaining the development of the Court’s legal practices. Since its opening in 2005, in addition to a few rulings concerning the conventional issues of community law (removal of trade barriers, freedom of movement within the CARICOM, etc), the Court has developed an expertise on matters relating to fundamental rights, which are normally not directly linked to regional integration (Caserta, 2018). Among the Court’s most important contributions, one finds judgements enforcing fundamental rights at the regional level (Shanique Myrie v Barbados, 2013), banning the mandatory death penalty for murder in Barbados (Attorney General of Barbados v Joseph and Boyce, 2006), indigenous communal property rights in Belize (Maya Leaders Alliance and others v Attorney General of Belize, 2015), LGBTI rights in the CARICOM (Tomlinson v the State of Belize and v the State of Trinidad and Tobago, 2016), and the constitutionality of mandatory minimum life sentence in prison for murder in Belize (Gregory August and Alwin Gabb v the Queen, 2018). From the perspective of critical sociology, the human rights turn of the CCJ is to a large extent explainable as an explicit attempt by the Court at legitimizing itself vis-à-vis the dominant actors of the Caribbean legal field. In other words, by the means of these rulings, the judges sought to place the court’s practices at the core of the Caribbean legal field and at making it palatable to the different legal elites dominating that field. This included both those lawyers advocating for severing ties with the Privy Council and those who feared that by abandoning the British judicial system the level of legal protection in the Caribbean would be jeopardized. Basically, pre-existing power structures have also influenced the course of the court’s adjudicative practices.

b.  The Central American Court of Justice as Post-Conflict International Court

43  The CACJ, the judicial organ of the Central American System of Regional Integration (Central American Integration System (SICA)), is typically viewed by mainstream scholarship as yet another EU-style regional economic court. Taking a more critical perspective emphasizing power and elites, the picture that emerges is however different. Similar to the CCJ, the CACJ can be viewed as the institutional result of the competing interests of the Central American legal field. One of these interests is the push for a regional economic court with the objective of enforcing the SICA agreements (see, among others, Metcalf and Papageorgiou, 2005). Although the CACJ is indeed – at least on paper – a regional integration court, this is a too narrow perspective for explaining the court’s actual practices. The court is also, and perhaps predominantly, the result of the pacification processes and movements that have characterized the region since its independence from the Spanish Empire in 1821. The present CACJ, in fact, is not an isolated episode in the history of the region, but the latest of several attempts at creating common judicial institutions to pacify the region by legal means (Karnes, 1976; Gutierrez, 2009). The most significant predecessor to the current court dates back to 1907 when the first Central American Court of Justice (1907-18) was established precisely with the task of maintaining peace and avoiding the use of force in the region (Gutierrez, 2009; Baetens, 2019).

44  This particular double structuration of the current court, combining peace and market agendas, has shaped significantly both the institutional structure and activities of the CACJ. The original objective was peace and the creation of the necessary institutional and legal tools to mend the conflicts of the region and to enforce the rule of law both at the national and at the regional levels. From the early 1950s, however, the balance of power within the field was altered, and the movement related to pacification through international and constitutional law was replaced by a new plan for economic development through international organizations. The first was the Organization of Central American States (‘ODECA’) (1951) which was then followed by the Central American Common Market (‘CACM’) (1962) (Sanchez, 2009). This new regional economic movement was initially little concerned with the establishment of regional judicial institutions. It nevertheless spurred the emergence of a new group of lawyers whose professional orientation and interests leaned more towards developing some form of economic law rather than pacification. These two originally separate regional movements coalesced during the 1990s, when the present CACJ was established in the context of the reformation of the regional integration project and the peace negotiations of Esquipulas I and II.

45  During the negotiations leading to the establishment of the present CACJ, a close network of powerful lawyers – dominated by the Presidents of the Supreme Courts of the Central American States – was given a prominent position in the task of drafting the Statute of the Court. And different from the Heads of States, who wanted to equip the SICA with an EU-style regional economic court, the judges were much closer to the groupings envisioning the court as a tool for democratization and pacification. Accordingly, in drafting the Statute of the Court, they did not only create a Court ready to help build a common market but also an institution designed to pacify and democratize the Central American region by legal means. In this regard, in addition to the EU-like community law jurisdiction requested by the Heads of Government, the judges provided the CACJ with several powers which aimed at making the CACJ a vehicle for the Central American pacification and democratization process. Most notably, the powers vested with the Court included the power to rule in inter-State conflicts and in separation of powers disputes between the constitutional organs of the Member States (See Art 22 f) of the Statute). And practically all of these powers were imported from the original CACJ.

46  This double structuration – and indeed double institutionalization – of the Court also influenced its initial activities. Opening in 1994, the Court not only provided judgements related to issues of community law, it also developed a unique practice on matters related to inter-State disputes and other constitutional and international law issues, which are normally not directly linked to regional integration. (Caserta, 2017; Caserta, 2018). Among the Court’s most important contributions was the ruling concerning a soft coup d’état attempted by the Parliament of Nicaragua against the President of the Republic (Enrique Bolaños v the Parliament of Nicaragua2005) and rulings on a number of long-standing territorial disputes between Nicaragua, Costa Rica, and Honduras (Nicaragua v Honduras, 2001; Honduras v Nicaragua, 1999; FONARE and the Nicaraguan Foundation for the Sustainable Development v Costa Rica, 2012).

47  From the perspective of critical sociology, these developments can be explained as the institutional results of the competing ideas and interests of the main actors of the Central American legal field. Similar to what can be observed with regard to the CCJ, the CACJ’s practices beyond ordinary community law issues is in part the result of the Court engaging with the different and broader set of actors of the field. In particular, the judges sought to make the CACJ relevant for those lawyers who had an interest in Central American community law as a tool to pacify and democratize the region. Thereby, the trajectory of the Court was largely structured by regional power structures observable in the broader Central American fields of law.

3.  International Courts and the Integration of International Society by Law

48  Critical sociology is, as shown, helpful for understanding how ICs are negotiated and particularly how they respond to different constellations of actors and other social forces in their adjudicative practices. As briefly discussed in the theoretical section, an entirely different way of approaching ICs is via functionalism in terms of how these institutions contribute to the construction of international legal orders and society. As also suggested, this approach is also different from the mainstream functionalist literature in law and political science that analyses and evaluates the activity of ICs against the background of their formally delegated functions. What we will explore here is more of a post-Durkheimian functionalist approach that focuses on how ICs make use of their formally delegated functions to develop legal orders of societal impact in terms of integration. To illustrate this theoretical position, we draw on two brief case studies of the CJEU and of the EACJ. Both Courts have attempted to build effective supranational legal systems through – at times even controversial – interpretations of their statutes or treaties. The CJEU has done so by building a relatively effective relationship with national judiciaries through the preliminary reference procedure, thus setting the basis for the establishment of a new legal order with direct applicability, direct effect, and supremacy of community law. The EACJ has interpreted a vague provision on the rule of law in the treaty establishing the East African Community as providing the Court competence to adjudicate cases involving human rights, thereby taking steps towards transforming the East African Community from a mere intergovernmental organization dealing with trade-related matters into a community with supranational features and an emphasis on the rights of individuals.

a.  The Societal Consequences of the Court of Justice of the European Union’s Construction of the European Union Legal Order

49  The CJEU is by many viewed as the most powerful and authoritative regional economic court on the globe (Kelemen, 2016). Yet, it is often forgotten that this has not always been the case, and that the Court was once politically and legally weak. In its early days, the Member States envisioned the CJEU as an institution that would not significantly compromise their national sovereignty (Alter, 1998). The CJEU was, in fact, created to perform three specific functional tasks, namely to: 1) make sure that the organs of the newly-established community would not go beyond their formally delegated powers; 2) limit the vagueness of EU law through legal interpretation; and 3) decide non-compliance cases raised either by the Commission or by the Member States. Despite these limited formal powers the CJEU has over time managed to change the EU legal system into a supranational community with constitutional features. Rather than through governmental negotiations, however, this occurred through adjudication. Most notably, this resulted in the CJEU transforming the preliminary ruling mechanism from a tool originally envisioned to allow individuals to challenge EU law in national courts into a mechanism empowering individuals to challenge national laws that were in violation of EU law before national judges (Alter, 1998). Particularly relevant here are two legal principles developed by the CJEU, which, over time, have become the cornerstone of the EU legal system: the direct effect and supremacy of EU law.

50  The doctrine of direct effect was first established in 1963 in the famous case Van Gend en Loos. From the point of view of law, this doctrine provides that clear and precise EU norms become automatically part of the national legal system of the Member States without the necessity of additional legislative or administrative measures. Legally speaking, this was a revolution for two main reasons. First, by having direct effect, EU law automatically created enforceable legal obligations between the Member States and individuals as well as among individuals. The second revolutionary aspect of the doctrine of direct effect follow from the first one, namely that by being equated to national law, Community norms may be invoked by individuals before national courts, which would then act as judges of integration. Shortly after the creation of direct effect, the CJEU created the doctrine of supremacy in the Costa case, according to which, if a conflict between national and EU law arises, the latter prevails. The legal consequence is straightforward, namely that EU law has constitutional features and prevails when in conflict with national law.

51  Scholars have provided a plethora of accounts of the legal (Weiler, 1991), political (Alter, 1998), and social (Vauchez, 2010) consequences of these developments, as well as on their authority (Kelemen, 2016) and legitimacy (Rasmussen, 1986). These accounts attempt to explain, from different disciplinary perspectives, how the CJEU managed to impose its vision of EU law in an operational context characterized by Member States concerned about sovereignty. Using a Durkheimian functionalist perspective, a different – yet complementary – explanation of the CJEU legal innovations can be drawn up which views this as part of a broader societal development. Rather than seeing these innovations in more limited functional terms as doctrines simply developed to make EU law effective, these landmark decisions helped to integrate the differentiated spheres of which modern European society was composed. The necessary transnational institutional linkage required for fulfilling this objective was created via the preliminary reference procedure. The CJEU could demonstrate towards the domestic courts that it was not intending to deprive them of their power, but rather that it was an institution they could trust and collaborate with (Alter, 2009). In the words of Joseph Weiler, these two principles expounded by the CJEU in these early decisions, and then further developed in subsequent case law, made sure that ‘national courts and the European Court [we]re integrated into a unitary system of judicial review.’ (Weiler, 1994, 515)

52  When seen in retrospect, the CJEU has generally succeeded in this strategy, although recent political developments in a number of EU Member States are posing new challenges to the authority and legitimacy of the Court (Caserta and Cebulak, 2018; Hailbronner, 2018). Also, we find scattered resistance to the CJEU in some national jurisdictions (Komárek, 2012; Dyevre, 2016; Madsen and others, 2017; Hofmann, 2018). Nevertheless, it is probably fair to conclude that the CJEU’s ‘legal revolution’ has succeeded and created a transnational solidarity via law and courts (on judicial trust in Europe, see Mayoral, 2017). The big question, when seen from a Durkheimian perspective, is whether this intra-court solidarity expands beyond the world of law; that is, whether legal integration and solidarity also produce solidarity beyond the microcosm of law. Regardless of the many challenges faced by Europe in the recent decade in terms of the financial crisis, the refugee crisis, Brexit, etc, the societal construct of the EU is without doubt a living reality. In contrast to the examples of the CCJ and CACJ discussed right above, the effects of EU law for constructing EU-European society are pervasive. As suggested by post-Durkheimians such as Parsons, law and courts provide the greasing that makes the societal machinery run smoothly and transform potentially devastating conflicts into controllable legal disagreements. From this perspective, there is little doubt that European legal integration has allowed European societal integration across a wide range of otherwise differentiated spheres (Münch, 2008; Thornhill, 2012).

b.  The East African Court of Justice’s Transformative Judgments on the Rule of Law

53  A Durkheimian functionalist approach can also be used to shed light on the somewhat surprising evolution of the EACJ. Although established as a regional economic court, the EACJ’s practices have largely centred on issues related to good governance and the rule of law, even human rights (Gathii, 2012; Gathii, 2016). This development puzzles more formalist accounts, as the EACJ’s constitutive treaty arguably did not envision the Court playing such roles. While such judging can be – and very often is – regarded as simply judicial activism, a broader functionalist approach allows for a different reading which underlines how regional courts function as integrators of law and society on a regional scale. Compared to the CJEU just discussed, the EACJ has however been less successful in impacting the integration of East African societies via legal and judicial means. This raises the question of what explains these differences in outcomes?

54  The first important judgement contributing to transforming the EACJ from a mere economic court into a human rights-like court was the Katabazi case (James Katabazi and 21 others v Secretary General of the East African Community and Attorney General of the Republic of Uganda, 2007). Brought before the Court in 2007, this case concerned the re-arrest of fourteen Ugandan men who had just been granted bail by the Ugandan High Court. More specifically, the Court was called to decide whether this re-arrest violated some of the provisions of the Treaty for the Establishment of the East African Community, more specifically Articles 7 (2), 8 (1) (c), 5 (1), and 6. None of these articles openly conferred to the Court jurisdiction over human rights. Article 5 (1) EAC Treaty provides that ‘the objectives of the Community shall be to develop policies and programmes aimed at widening and deepening co-operation among Partner States in political, social and cultural fields…and legal and judicial affairs.’ Importantly, however, Article 5 also provides that the promotion of human rights is one of the overall objectives of the EAC. In line with Article 5, Article 7 (1) provides that the ‘principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights’ are other operational principles of the EAC. Moreover, Article 8 (1) (c) obliges the Partner States of the East African Community to ‘abstain from any measures likely to jeopardize the achievement of those objectives or the implementation of the provisions of this Treaty.’

55  In deciding the case, while acknowledging that formally its jurisdiction did not encompass human rights, the EACJ ruled it could decide such cases. According to the EACJ: ‘[w]hile the Court will not assume jurisdiction to adjudicate on human rights disputes, it will not abdicate from exercising its jurisdiction of interpretation under Article 27 (1) merely because the reference includes allegation of human rights violation’ (Katabazi, Ref. No. 1 of 2007, at 16). The Katabazi case was however not an isolated episode of expansionist judging. In the following years, the EACJ ruled upon other cases dealing with human rights, rule of law, and good governance. In Plaxeda Rugumba v The Secretary General of the EAC and the Attorney General of the Republic of Rwanda, the Court expanded its jurisdiction to good governance and the rule of law (Plaxeda Rugumba v The Secretary General of the EAC and the Attorney General of the Republic of Rwanda, 2010 & Appeal No 1, 2012). In Independent Medical Unit v Attorney General of Kenya and others, a case concerning executions, torture, as well as inhuman and degrading treatment committed by agents of the Government of Kenya, the EACJ restated that the lack of a formally delegated jurisdiction over human rights jurisdiction did not prevent the Court for ruling upon them as long as the allegations concerned the interpretation of the EAC Treaty (Independent Medical Unit v Attorney General of Kenya and others, 2011).

56  In all these cases, it is striking that when claiming jurisdiction over human rights, the Court repeatedly referred to its societal role as builder of a regional legal system that would have a broader societal impact. But, as has been the case for many other regional economic courts in the developing world, the EACJ has faced the challenge that the development of regional economic law has been hampered by the lack of regional economic exchanges. Overall, the exchange of goods among the Member States is relatively low as the United States, Europe and increasingly China remain more important destinations for these economies. Moreover, some level of judicial independence and subscription to the rule of law seem necessary preconditions for successful regional economic integration. The Court’s turn towards good governance and rule of law seem to reflect these gaps in the structure of law in East Africa and might well be seen as an attempt, on behalf of the court, to fulfil its functional role as a regional economic court by seeking to develop the preconditions for regional integration.

57  The comparative difference between the constitutionalization of the EU by the CJEU and the practices of the EACJ are clearly due to profound societal differences. In terms of law, the two institutions have also opted for different ways of creating integration. To illustrate this, it is relevant to supplement the Durkheimian perspective with Weberian analytical tools. By revolutionizing EU law through the principles of direct effect and supremacy, the CJEU has, indeed, constitutionalized EU law and done so in a more abstract fashion. In contrast, the EACJ has attempted at enforcing EAC law by developing thick(er) individual and fundamental rights standards supplementing and occasionally challenging national legal systems. The more abstract approach of the CJEU was effectively not an option for the EACJ. But the EACJ’s approach of entering very directly the realm of national law, however risked provoking pushback from the immediately concerned authorities.

58  The Court’s approach was indeed met with negative reactions. The Kenyan Government launched a campaign against the Court that eventually resulted in institutional reforms (Alter and others, 2016). These, notably, included the creation of an appellate chamber and the extension of the grounds for removal and suspension of the judges (Onoria, 2010). Compared to the fate of the Southern African Development Community Tribunal, which was suspended by its Member States to be then re-opened with a significantly curbed jurisdiction (Meckler, 2016), the EACJ overall managed to survive the onslaught, yet with some scratches (Alter and others, 2016). Nevertheless, in the broader picture of understanding the Court’s integrative role in East Africa, the conclusion is very different.

59  Empirical studies of the EACJ suggests that the Court’s reach has in fact been limited to not only its jurisprudence on rule of law and good governance; it has also mostly engaged with very specific audiences (Gathii, 2016). In particular, it appears that the Court enjoys the support of national and transnational advocacy communities, which themselves have been instrumental in pushing the rule of law agenda. A key strategic partner in this regard has been the East African Law Society (EALS), which, while providing the Court with the opportunity of ruling upon human rights issues, has also backed the EACJ during the Kenyan backlash (Gathii, 2016). But with regard to the business communities, which are critical for developing the economic law dimensions of its jurisdiction, the Court’s reach is very limited. Thus, while the Court has provided a concrete input – and some impact – on the general aspects of law in East Africa, its role as an integrator of the regional economy is much more limited. This ultimately suggests that the EACJ’s overall de facto authority remains constrained and its ability to integrate East African society similarly limited (Alter and others, 2018).

E.  Conclusion

60  This entry has explored how classical sociological theories can be used for studying and explaining international adjudication in a societal context. As outlined, Weberian approaches allow for grasping the ways in which ICs can legitimize themselves by developing specific legal rationalities in response to societal and political dynamics; Durkheimian functionalist approaches provide the tools for assessing under which conditions ICs can develop societal integration, not only against its increased differentiation and specialization, but also against forces that intend to shy away from the rule of law; finally, Marxist and post-Marxist critical approaches allow for understanding how ICs are created as societal institutions and how they respond to different constellations of actors and other social forces in their adjudicative practices. These are only starting points for broader sociological engagements with how international law evolves and particularly the role of international adjudication in these processes. A wealth of other sociological theories, either expanding the original starting points or developing new ones, are at the disposal of scholars interested in international adjudication. These include the work of Jürgen Habermas analysing effects of law and social life and democracy (Habermas, 1992), Pierre Bourdieu’s study of how law gains a particular social force (Bourdieu, 1987), Niklas Luhmann’s theoretical programme for understanding the operation of law (Luhmann, 1993) and Bruno Latour’s more anthropological studies of how law assembles a social reality (Latour, 2002). In most cases these theories were developed against the background of national law and society but, as is the case with the original sociologists, their basic insights can be adapted to exploring the related but also different object of international adjudication.

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