Inter-Judicial Dialogue: Institutional and Functional Legitimacy in Supranational Judiciary Spaces.

COURT of Justice of the European Communities ; EUROPEAN Court of Human Rights

This contribution aims to analyse the interaction between supranational courts in order to see whether inter-institutional dialogue and jurisprudential cross-fertilisation “increases” or “decreases” the legitimacy of judicial actors. Analysing the case of the interaction between judicial actors of the European Court of Justice (ECJ), the European Court of Human Rights (ECourtHR), the paper will focus on socio-historic variables, as well as statistical data to explain how and why fundamental norms jurisprudence brings together Europe’s lawyers and, especially, its judges. It then explores how supranational judges strategically endeavour to establish transnational epistemic communities that serve as a vehicle for political jurisprudence. As supranational courts try to bring up common “jurisprudential screens” as they relate to each other in order to prevail over national and private actors, they might be able to increase the legitimacy of their courts, i.e. by relying on external norms that are often more compulsory for member states, they tend to increase both their autonomy and their legitimacy. Yet, we argue that while supranational actors might increase the legitimacy of their institutions by importing norms, they also put at risk the legitimacy of their function, i.e. it appears that sometimes cases are decided with regard to institutional interests and precisely aim to “charm” other courts, whereas other legal issues fall into the background. In this vein, the paper will analyse the specificity of the issues at stake when it comes to the legitimacy of international judges. While developing recent empirical examples on how this relationship between institutional and functional legitimacy operates, the paper then dwells on the link between the autonomisation of IOs and their strategies of legitimisation. Drawing on in-depth interviews with judges and other judicial actors, as well as on a contextual analysis of case law, the overall objective of this research is to provide insights into the inner circles of emerging transnational judiciary networks and to assess the impact of inter-judicial dialogues the legitimacy of IOs. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

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