How Judges Think about Human Rights: Legitimacy and Political Judgment

Dear Colleagues,

To a significant extent, extant approaches to aspects of judicial decision-making with regard to domestic and/or international human rights law are clustered around specific disciplinary approaches that relatively rarely, if ever, come into real, let alone conceptually fruitful, contact. On the one hand, legal doctrinal approaches mainly gloss the case law of international and/or domestic adjudicative bodies on the assumption that some kind of formalist approach is more or less sufficient when it comes to explaining judicial decision-making in this area of law. Legal scholars working in the area of human rights law thus mostly provide theorizations of human rights by systematizing case law around more general principles and concepts. On the other hand, political and moral theorists have lately vigorously debated the question about the ‘nature’ of human rights, including legal human rights, albeit without thinking more systematically how, if at all, abstract moral accounts of human rights can be incorporated within a larger and sufficiently informed view of the institutional and political realities of judicial decision-making in human rights law. Last, political science approaches have produced an ever-expanding literature on the causal determinants of judicial decision-making with regard to human rights law, but without always a very clear idea of how this causal picture sits with respect to other kinds of candidate explanations of judicial behavior, such as legal formalism or moral reasoning. There is thus a gap in the literature with respect to approaches that combine and synthesize legal, moral/political and empirical perspectives on judicial decision-making in the area of human rights.

In this context, the call for papers for this Special Issue specifically seeks interdisciplinary and/or collaborative contributions addressing these issues. A convenient (but by no means mandatory) starting point for systematic reflection could begin with the pivotal role of the legitimacy of domestic or international courts when it comes to adjudicating human rights claims. The driving idea is that at least a subset of human rights judgments is (or can become) politically controversial from either a descriptive or a normative point of view. Such judgments typically trigger various reactions, positive or negative, on the part of other political and social actors. Accordingly, judges deciding human rights claims seem to be making, or perhaps even ought to be making, some kind of political judgment when taking these decisions, in addition to their legal or moral reasoning in a stricter sense. At the same time, judges also standardly operate under the distinctive constraint to provide legal reasons for their decisions, and thus have to ‘dress up’ their political judgment in formalist modes of justification. The call for papers especially targets interdisciplinary approaches that straddle the divide between legal scholarship, political theory and empirical political science (or, more broadly, socio-legal approaches) to address these issues. In this context, topics of interest to the call for papers include, but are not limited to:

• The nature and limits of ‘standard’ legal formalist explanations of human rights judgments
• The respective roles of moral and political judgment from both a descriptive and a normative point of view in human rights decisions
• The descriptive and normative aspects of judicial legitimacy in the field of domestic and international human rights adjudication
• The idea of legitimacy in that same field as a distinctive kind of concern than influences (or should influence) judicial decision-making
• The various actors and ‘audiences’ that are or should be taken into account when addressing issues of legitimacy in the above sense (e.g., other courts, domestic or international political actors, scholarly and professional communities or other social actors)
• New challenges to judicial legitimacy in the field of human rights adjudication

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• human rights
• political judgment
• judicial reasoning
• political theory and political science