The Influence of Judicial Institutions
Author: Nicoleta Sovre
Originally Published at Peace and Conflict Monitor on: 08/05/2011
“L’expérience de chaque homme se recommence. Seules les institutions deviennent plus sages ; elles accumulent l’expérience collective.” 
Institutionalism has its starting point in the classical thought of Santi Romano and Maurice Hauriou. In contrast to the “legitimate theories” of the Italian and French philosophers is Carl Schmitt’s “illegitimate theory”, which is preceded by the thinking of Rudolf Smend and Eric Voegelin. Although both theories share a common characteristic, namely anti-normativism, their conclusions are very different. Maurice Hauriou stands for natural law, Santi Romano is a positivist, while Carl Schmitt emphases the link between power and order, the first leading to the last one.  Concerning the connection between law and institution, Romano situates them on the same level: “Any legal system constitutes an institution, any institution constitutes a legal system; the equation of the two concepts is essential and absolute.” For his part, Hauriou enriches the law-institution scheme with a new element, God. Hauriou considers that the institutions are primordial to law: “It is the institutions which create the legal norms rather than the legal norms which create the institution,”  and that there is an intimate bond between God and institution, the institution having its foundation in divinity. For Schmitt, the idea of institution is characterized by: “jurisdictional authority, hierarchy of offices, inner autonomy, internal counterbalancing of opposing forces and tendencies, inner discipline, honor, and official secrets, and with these the all important foundational presupposition, namely a normal stabilized situation, a situation ´etablie. The institution acts as a system with a negative feedback, “internal counterbalancing of opposing forces and tendencies” which excludes the necessity of norms. In order to maintain the order, this organized system preserves a space for decisive interventions. Therefore, Schmitt uses institutionalism as an ideological justification for decisionism.
Going further, in recent times, other theoreticians are as well questioned the concept of institution and its implications upon social, political or economical life. The world presents itself as a web of institutions: “It is impossible to imagine contemporary international life” without organizations. But what is an organization? Jan Klabbers puts it simply: “we don’t know”, although we can recognize it. History illustrates the fundamental role played by the institutions. The late 1700s and the Jay Treaties mark the departure point for modern international courts and tribunals. The increase of institutions in general and of permanent international courts in particular is a result of several major events: the two world wars and the end of the Cold War. Adam Smith, affirmed that: “defense, however it is of much more importance than opulence.” Therefore it is not surprisingly that organizations for military cooperation, such as Pact of Brussels or NATO have played an important role in the development of international law.
In a way similar to Montesquieu, Morgenthau, acknowledging the role of judicial power, believes that power can stop power: “despite…deficiencies [in] … the legislative function [in international politics], a legal system might still be capable of holding in check the power aspirations of its subjects if there existed judicial agencies that could speak with authority whenever a dissension occurred with regard to the existence or the import of a legal rule.”
Michael Barnett and Martha Finnemore, referring to international institutions consider that these entities “are involved not only in helping to regulate the social world, but also in constituting that world that needs to be regulated. They do constitutive work, helping to shape the underlying social relations that create categories of action, fix meanings, shape subjectivities,” as a form of “productive power.”
The way in which institutions influence state decisions can be exemplified by the European Court of Justice in the context of the European integration which established a mechanism of mutual recognition. In spite of the distributional implications, the state accepted ECJ’s rulings as a symbol of stability for the internal market. In the EU context, the ECJ has a unique place among the judicial bodies as all states are obliged to respect its outcomes. The norms created by institutions have a causal effect. Respect for law leads to commitment with the declared rules as well as to modifications in the conduct of states in “significant respect and in substantial degree” which proves that the institutions are embodied with value.
In which regards the theoretical debate over institutions, Powell and DiMaggio consider that social science offers two distinct ways of approaching international organizations. One way comes from an economics perspective, concerned with instrumental rationality and efficiency, while the other one, sociological, revolves around issues of legitimacy and power. Each of these approaches offers different ways of understanding the influence of the institutions.
The influence of international courts derives from several sources. The traditional view regards the balance of power between states and institutions. There is a direct proportional relation between the degree of conferrals of powers by states to institutions and their institutional capacity. In this case, the state limits the use of its powers and the institution becomes the sole place for the lawful exercise of transferred powers.
Differing from the traditional view, other scholars posit that institutions derive their influence from social relations, as in vacuum there is no influence. In this context, their influence is enhanced by the perceived legitimacy of their decisions or of the institution itself: “Legitimacy is a perception or assumption in that it represents a reaction of observers to the organization as they see it; thus, legitimacy is possessed objectively, yet created subjectively,” like beauty, it is in the eyes of the beholder. Law operates through the activities of “interpretive communities”, which rest on international institutions.
Gibson, reviewing a variety of authors, affirms that the general trend is for courts to be believed as having “special powers to legitimize.” This particular characteristic derives from the assumption that entities comply with the law not only in the virtue of reward and punishment but also based on the fairness of rules and policies and of the process which lead to those policies. In addition to this assumption, the author states that if the institution as an entity is perceived as legitimate, then its decision will be taken into consideration although the decision-making process was not fair. The explication of this situation is to be found in two options. One says that, although an institution detaches itself from norms, its divergence is not noticed. Another one says that if there is no public disapproval when an institution acts in a different way than individuals’ values its legitimacy is not affected. Legitimation is also a resource in the sense that, by justifying the action of the institution it attracts support. The author goes further, affirming that “it would not be surprising to find that courts are perceived as the most procedurally fair of all political institutions.” The underlying reason is the non-political character of the courts: “In courts, it is not who one knows that controls the decision, but rather it is the merits of one’s case.”
David Kennedy stresses the importance of acknowledging the continuous change of environment: “new ways to govern, new meanings for politics, new identities for subjects and rulers, for law, for the state, and for things like culture.” He perceives the current state of fact as “experimental” and characterized by “institutional diversity.” In the context of global governance, the question regarding upon whom international courts have influence goes around two lines: on states or on people. The challenge faced by international institutions is well summarized by Hannah Arendt: “solidarity of mankind may well turn out to be an unbearable burden.” The underlying reason of her statement is the belief that institutions are created because of the “fear of global destruction” and not as a consequence of shared values.
I believe that it is essential to acknowledge the immanent character of institutions and to be aware that their influence does not work only following the carrots and stick paradigm but that there are more subtle reasons, including patterns as social legitimacy. What is more, either if the judicial institutions take the image of Hobbes’ absolute sovereign or of Rousseau’s envisioned sovereign, “the people”, one cannot deny the role of the institutions as an attractor.
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Bio: Nicoleta Sovre holds an MA from the University for Peace.