Reading 8: Lupu
Lupu, Yonatan (2013). "International Judicial Legitimacy: Lessons from National Courts." Theoretical Inquiries in Law, Vol. 14, No. 2, pp. 437-454.
"How can international courts better establish their legitimacy? We can better answer this question by first focusing on what scholars have learned about how national courts build legitimacy over time. The literature suggests that national courts strategically build legitimacy by balancing their own policy preferences with those of their audiences. In so doing, they attempt to avoid instances of court curbing that can diminish legitimacy over the long run. Applying a similar strategy can be more difficult for international courts for two key reasons: (1) they serve audiences with more diverse preferences than national courts; (2) they are less likely to be able to predict which rulings will result in significant backlashes from these audiences."
Why this reading?
Lupu provides a (rare) example of a scholar following the prescription of Staton and Moore. He explicitly builds on the research on domestic courts to improve our understandning of international courts, in an area which is of central importance to PluriCourts: Explaining social legitimacy of courts.
Questions for discussion
- To what extent is Lupu’s study a successful indication, or a warning sign, of the potential of the bridging-approach?
- Lupu argues that international judges have less information about important compliance constituencies compared to domestic judges, which negatively affects their ability to generate social legitimacy. Does that apply to all international courts and tribunals? Can we assume that the variation is less significant when comparing different international courts?
- The social legitimacy of courts seems to be driven by the perception of courts as “apolitical” actors. Paradoxically, at the same time, courts need to be politically strategic in order to build legitimacy. What can we conclude from this paradox regarding the legitimation strategies available to international Courts?