Dialogue is everywhere. We hear about the need for dialogue between politicians, civilizations, religions, cultures, institutions or, in the international normative context, between legal orders and their actors. Dialogue has positive connotations, whereas the absence of dialogue implies a standstill, clash, divide, ignorance or fragmentation. Dialogue is usually seen as a necessary first step to overcome divides. Actors shall talk and listen to each other, exchange arguments and learn from each other. From a socio-political perspective, dialogue is the prime process of bringing actors closer together. It is a means of making communities ‘imaginable’,Footnote 1 and of promoting a move from the mere coexistence of actors to possible cooperation towards the realization of common interests.Footnote 2 It is, therefore, not surprising that in an understanding of the global legal order as a unified system, in which problems of fragmentation need to be ‘solved’ and gaps in the law need to be ‘closed’, dialogue between courts is conceived as a possible cure to ensure the coherence and unity of ‘the system’.Footnote 3
My argument is not that dialogue between judges does not exist, nor that this exchange should be avoided. My aim is to shed a critical light on judicial dialogue when its purpose and meaning are taken beyond cross-fertilization and comparative reasoning. My concern is to caution against an idealization of these inter-judicial exchanges as a means to construct commonalities between courts and ultimately to legitimize judicial governance. I point to structural inequalities and processes of socialization that exist within these allegedly open and rational dialogues. Dialogue is not free of power dynamics and unequal quests for influence. Because of the particular functions and authority of courts, these dynamics become even more subtle and escape effective oversight in a transnational setting.
I rely on the notion of an idealized transnational judicial public sphere, in which national, regional and international courts ideally form common opinions through dialogue and pursue common purposes. Relying on scholarship on the societal public sphere and the critique of its legitimizing potential, I use this notion to describe an idealized discursive sphere in which judges supposedly freely and equally discuss questions of law and society. In this sphere, courts allegedly engage argumentatively with each other in order to find common solutions to common problems, develop the law according to common standards or advance integration into a shared community. They cooperate to protect and promote common interests, the common good and common values. I believe that this notion of an idealized transnational dialogical sphere, together with its connotations, is implicit in many conceptualizations of judicial governance that presume the existence of a network, alliance or community of courts.
The notion of a transnational judicial public sphere connects my discussion of judicial dialogue with themes of judicial governance, the exercise of public authority by courts, informal normative settings and critical democratic theory. The notion of the public sphere in modern democracies describes a sphere separate from politics, involving – at least in principle – everybody, where citizens through a rational discussion develop a public opinion that is able to exert a normative force on political decision-makers. Although the public opinion is not necessarily the outcome of direct dialogue but stems from dispersed processes, it is nevertheless regarded as the result of a wider process where society comes to a common mind and pursues a common end.Footnote 4 This is the ideal that I identify also in conceptualizations of judicial dialogues.
The qualification of this sphere as ‘public’ relates to the exercise of public authority by judges, and thus to effective influence on state policy. It also relates to the presumed openness of participation in the debates in this sphere and to the capacity of the debate to structure itself in such a way that a common opinion emerges.Footnote 5 Since judicial dialogue and judicial governance are often discussed in the context of supposedly disaggregated nation states with weakened domestic parliaments and governments, ‘public’ also refers to the legitimization of this (compensatory) public authority exercised by supranational courts and tribunals.
A small disclaimer is necessary. There are important differences between the transnational dialogical sphere of courts and the public sphere(s) in society. Exchanges between courts cannot have the same quality and effects as deliberations in parliaments or in public spheres in society. Parliaments are strong, institutionalized publics with decisional powers. Discourses in civil society, in turn, are usually informal and not necessarily influential.Footnote 6 Courts are actors with decisional power, and they form part of a formal institutional order. They represent a specific branch in the separation of powers and fulfil a particular adjudicative function in a legal order.Footnote 7 Judicial dialogue might appear as taking place in an informal, even weak transnational judicial public sphere, but at the same time courts are strong, decisional institutions.
Whenever dialogue is – explicitly or implicitly – linked to the idea of a transnational community, network or alliance with alleged common purposes and interests, we need to enhance our sensibilities for the subtle dynamics of homogenization and socialization that permeate these dialogues. Judicial dialogue can easily become a new bias in terms of how observers portray judicial ‘cooperation’ in post-national constellations. The danger is to construct a new paradigm that not only overlooks important differences in interests, influence and opinion of courts, but also overstates the social significance of exchanges between courts and of judicial governance.
My argument proceeds as follows: In section II, I outline a particular liberal view that portrays interacting courts as proactive actors in transnational governance processes. I then describe in section III wider purposes and effects that are associated with dialoguing and cooperating courts. Section IV stresses inherent conditionalities and systemic obstacles affecting judicial dialogue. I rely here on accounts of the bourgeois public sphere by Jürgen Habermas and others, who critically discuss this idealized sphere of open discourse. In section V, I point to a more critical understanding of the role of judicial dialogues in transnational normative processes. Conclusions are offered in section VI.
II. Beyond adjudication: The idea of judicial governance in a ‘post-Westphalian’ world
The increased number and influence of international courts and tribunals have attracted much attention in scholarship over recent years. Already US legal realists have pointed to the role of courts as proactive agents for the intentional development of domestic legal regimes.Footnote 8 This understanding of courts as not only engaging in adjudication but purposefully acting through adjudication has received further momentum with the establishment of numerous new regional and international legal regimes with judicial and quasi-judicial bodies.Footnote 9 Related to this development is the identification of multiple disaggregation processes of states caused by the transfer of traditional state functions and competences to supranational and transnational actors. Eyal Benvenisti describes these disaggregation processes as follows:
The formal delegation of authority to international institutions and informal intergovernmental coordination render significant parts of the domestic decision-making processes of most countries ineffectual … But the challenge runs even deeper, for it jeopardizes the very idea of democracy. The ability of citizens to participate in decisions affecting them becomes merely formal, as the domestic political branches fail to withstand the pressure brought to bear by domestic and foreign interest groups and foreign governments.Footnote 10
The globalization of decision-making processes, influenced by multiple public and private actors, is perceived as a jeopardy, and the openness of local democratic legal systems to these forces is seen as a vulnerability. The increase of governance activities by supranational actors and the alleged disaggregation of the state complement each other in these depictions.
Against this background, some scholars analyze courts and judges as agents who actively engage in governance themselves and defend the rule of law against powerful transnational actors that escape effective regulation. Anne-Marie Slaughter has been the most outspoken – and perhaps most controversial – scholar in this regard, offering a far-reaching theory of transnational governance networks. This theory builds on a particular liberal outlook on international society. Building on neo-Kantian presets, Professor Slaughter has developed a model of judicial government networks in the age of globalization in which judges actively engage in dialogue and cooperation across borders.Footnote 11 She argues that these government networks, which include judicial networks, can converge regulations, increase compliance with national and international rules, improve cooperation and address global challenges more effectively.Footnote 12 She conceptualizes judicial interactions as regulatory networks, which together form a global legal system:
[G]overnment networks would not only produce convergence and informed divergence, improve compliance with international rules, and enhance international regulation by information … [T]hey could do much more to instill and champion norms of honesty, integrity, independence, and responsiveness and to bolster those members who face domestic resistance in enforcing those norms.Footnote 13
Judges participate in what she calls a ‘global community of law’ and engage in a global legal discourse.Footnote 14 This emerging judicial community is based on a shared legal language and creates a ‘transjudicialism’ of networked courts.Footnote 15 More importantly, according to the underlying liberal world view, judges are committed to similar liberal values and are able to both empower and control each other in this transnational community of courts.Footnote 16
In this context, judicial dialogue becomes a network-forming link that can protect local political deliberation against external pressures and empower pluralistic democratic processes.Footnote 17 Slaughter’s ultimate vision is a new world order where these government networks increasingly address global and transnational problems, which compensate for the disaggregation of the state. She describes this new world order as ‘a system of global governance that institutionalizes cooperation and sufficiently contains conflict so that all nations and their peoples may achieve greater peace and prosperity, improve their stewardship of the earth, and reach minimum standards of human dignity’.Footnote 18
This far-reaching vision of courts and governance networks has been criticized as Eurocentric, as not supported by empirical facts and as a liberal idealization.Footnote 19 I believe, nonetheless, that similar assumptions about the potential, purposes and effects of dialoguing and cooperating courts exist in other analyses of networked courts.Footnote 20 Of course, there are important differences among these analyses, and some criticize an exclusive or exaggerated focus on judicial governance. However, these conceptualizations often assume that courts act purposefully together and cooperate transnationally to pursue purposes that go beyond adjudicating a particular legal case. Courts allegedly pursue these goals not in an isolated manner but within a cooperative network based on dialogue and exchange. In the following section, I restate some of these wider purposes and alleged effects that are ascribed to dialoguing courts.
III. Wider purposes and meanings of judicial dialogue
In judicial networks, courts allegedly engage in dialogue not only to enrich their own jurisprudence, but to find common solutions to common problems.Footnote 21 I mentioned already that dialogue between those actors, which can contribute to the fragmentation of the legal order through divergent rulings, will lead to greater formal coherence in the legal order.Footnote 22 It is also posited that judicial dialogue may promote the development of a transnational rule of law, at least in the sense that the judicial protection of the rule of law becomes more functionally interdependent.Footnote 23
Moreover, judicial dialogue shall promote objectives of democracy and global justice. Courts that are embedded in networks and interconnected through dialogue will address global challenges such as human rights violations, inequality or climate change more effectively beyond local institutional and political constraints. According to this view, judicial dialogue creates a discursive ‘space insulated from politics’ for ‘developing a political consensus as to the common good to be pursued by the “community” under the banner of universalism’.Footnote 24
Finally, international courts engage in the progressive development of legal regimes and exercise governance functions. This has brought the question of their legitimacy to the forefront of recent scholarly debate.Footnote 25 Different criteria are discussed as contributing to the legitimacy of courts. These include their internal set-up (e.g. the appointment procedure and the composition of the Bench regarding expertise, regional and gender representation), the decision-making procedure (e.g. deliberation and voting procedures), the foundational mandate (e.g. a constitution, treaty regime, UN Security Council resolution or executive act) and the wider social role and significance of the institution (e.g. peaceful dispute resolution, promotion of the rule of law, guardian of fundamental rights).
Yet the legitimacy of the judiciary depends not only on internal parameters of the institutional set-up or on procedure, but on a court’s embedment in an institutional system of separation of powers. Domestic law usually specifies the competences and hierarchy of courts, the procedural requirements for initiating judicial proceedings, the legal effects of judgments, the different stages of appeal and the competences between parliaments and courts. As explained in the following two sections, political theorists and sociologists have long included in this system civil society and public spheres, which can provide accountability and legitimacy through a critical public discourse.Footnote 26 Supranational courts lack a comparable constitutional embedment but increasingly exercise a strong ‘public authority’.Footnote 27
It is against this background that judicial dialogue is posited as contributing to the perception of legitimacy of courts. The dialogue can provide a seal of transnational approval by embedding a judicial decision in a shared opinion or a transnational consensus of courts. Judicial decision-making is placed in a transnational justificatory discourse, which will increase its legitimacy and thus also improve compliance with the courts’ decisions.Footnote 28 Especially when courts engage in the progressive development of law, an alleged consensus can help to legitimize this law-developing activity. If successful, this may increase not only the legitimacy of judicial decisions, but also of the judicial praxis to engage in this type of progressive development of the law.Footnote 29
In summary, this section briefly restated how dialogue between courts connotes particular ideals of communities and networks with ‘common’ interests, purposes and opinions. The dialogue within judicial communities will ideally lead to a consensus and enhance the legitimacy, authority and effectiveness of judicial decisions. Ultimately, this can lead to the belief that judicial networks can legitimately exercise governance tasks more effectively than (allegedly) disaggregated national political institutions and fragmented publics. In the next section, I critique this vision of judicial dialogue by highlighting inherent conditionalities, inequalities and subtle processes of homogenization and socialization that affect such dialogues. As I explained, I rely on the idea and critique of the formation of common opinions in an idealized public sphere as developed by Jürgen Habermas and other scholars. The bourgeois ideal of a public discursive space has been criticized, including by Habermas himself, for overlooking important biases in the opinion-forming process.
IV. The transnational judicial public sphere as an idea and ideology
In The Structural Transformation of the Public Sphere, Jürgen Habermas describes the emergence and transformation of the bourgeois public sphere in the national contexts of Germany, France and Great Britain.Footnote 30 In Habermas’s appraisal, the societal exchange creates a public sphere (Öffentlichkeit) as a separate realm between the private and the political sphere.Footnote 31
According to its idealized conception, the principal functions of the public sphere are ‘the detection, identification, and interpretation of problems affecting society as a whole’.Footnote 32 In this sphere, the (allegedly) open and inclusive discourse can enable the communicative generation of critical public opinion about common concerns (normative legitimacy of public opinion).Footnote 33 In addition, public opinion will inform political and legal institutions and hold them accountable. Its purpose is to discredit policies and laws that ‘cannot withstand critical scrutiny or to assure the legitimacy of those that do’ (political efficacy of public opinion).Footnote 34 Habermas also describes the structural transformation of the public sphere due to the influence of economic interests and mass media. He stresses the democratic importance of public discourse, but also criticizes this idealized notion of the public sphere for overlooking conditionalities and systemic obstacles that affect the open discourse and its critical function. At least to some extent, these systemic obstacles prevent it from becoming a forum for developing legitimate common opinions. This is the critique on which I rely here.
The notion of the public sphere and its assumptions were later further refined and criticized.Footnote 35 Scholars questioned, for example, the legitimacy of public discourses and alerted us to the exclusionary nature of the bourgeois public sphere, whose openness and egalitarian ideal were undermined by the importance of social class, education and status. Critics pointed out that the democratic and legitimizing qualities of public rational discourses depended also on the existence and admission of subaltern counter-publics.Footnote 36 In other words, they showed that ‘the’ public sphere consisted of numerous different publics with varying opportunities of influence. This included the distinction between strong publics with decisional powers, such as parliaments, and weaker publics seeking to increase their influence.Footnote 37
The notion of the public sphere resonated also with scholarship on the reconstruction of the concept of civil society in the context of the reform movements in Eastern Europe at the end of the last century.Footnote 38 The emerging scholarship after the Cold War used the concept of civil society to analyze social organization in movements and the interrelations between political, economic and civil actors. Through a normative and political assessment of the early Habermasian concept of the public sphere, scholars analyzed the logics of influence in wider civil society. This included not only the effects of increased institutionalization and the influence of economy elites, but also other systemic obstacles that interest us here.Footnote 39
Although the two notions of public sphere and civil society share similar features, they are not identical.Footnote 40 The public sphere is a part of civil society and has a strong emphasis on rational-critical discourse, opinion formation and the potential to influence political power through public accountability.
In what follows, I use arguments from these debates to describe conditionalities and systemic obstacles that can taint the assumption that judicial dialogue produces legitimate common opinions and common interests of judges. There is the risk that judicial dialogue is construed as a tool to promote an alternative and complementary discursive sphere that conflates transnational judicial governance and its legitimization. As Habermas aptly observes regarding public discourses, ‘Of course, actual influence coincides with legitimate influence just as little as the belief in legitimacy coincides with legitimacy.’Footnote 41
Social standing and openness
Just as debates about the public sphere have emphasized differences in status of participants, courts, too, differ in status and influence. Judicial dialogue, like dialogue between citizens in an idealized public sphere, builds on presumptions of an open, inclusive, equal, voluntary and unconstrained discourse between judges. In social practice, however, the influence of the US or South African Supreme Court, the German Bundesverfassungsgericht or the French Conseil constitutionnel is far from comparable to the influence of the supreme court of, for example, Cyprus. Decisions and opinions of courts that are widely viewed as successful and influential are naturally more likely to exert influence. Participation in a judicial dialogue may in principle be open, but effectively depends on status, means and influence.Footnote 42 While every court may intend to make its voice heard, the likeliness to be heard and the weight given to the voice differ. Apart from social standing and recognition, material means also influence whether a court is financially and logistically equipped to translate its judgements into English and make them widely available.Footnote 43 Moreover, if a court is in a position to convene regular meetings with judges from other jurisdictions, as the Bundesverfassungsgericht and other apex courts do, this might not simply be a sign of dedication to exchange and mutual learning through dialogue; it also ensures that the court’s own voice is more widely heard.Footnote 44 This ‘exchange’ is also a means to disseminate the judges’ own opinions and to build transnational alliances.
Within this ‘dialogue’, a court might not even know whether and when another court cites its decision, especially if the decisions are not translated. Noticeable and traceable judicial exchanges in the transnational judicial public sphere are, therefore, effectively reduced to a few well-known international and regional, and a small number of domestic, supreme courts with the International Court of Justice, the Court of Justice of the European Union, the European Court of Human Rights, the WTO Appellate Body and some predominantly Western European and North American constitutional courts inhabiting the most prominent positions.Footnote 45 In most cases, the engagement with the decisions of these courts seems to stem from a social or institutional hierarchy and not necessarily from an interest in mutual dialogue. The dialogue may foster this hierarchy instead of challenging it.
Commonalities and socialization
In this environment of unequal influence, it becomes harder for less prominent participants to deviate from the mainstream opinion. If judicial dialogue is conceptualized as a means to create a transnational consensus and common purposes for courts, then this can involve strong biases of the profession. Within a professional community, certain opinions and arguments might be frowned upon while other positions bring acknowledgement and esteem. Social pressures within a professional group make it increasingly unlikely that alternative arguments or solutions will gain force.Footnote 46 Hence, being part of a dialogue does not mean a mere exchange of technical knowledge but also entails the exposure to socialization dynamics.Footnote 47 Dialogues within professional communities set standards of appropriateness for their members,Footnote 48 and which standard prevails depends largely on the influence of dominant members and hence on engrained social power structures.Footnote 49 Together with other factors, this influences which judicial opinions and decisions will most likely succeed in the ‘dialogue’.
The social environment thus exerts strong pulls towards the perceived center, with strong incentives to conform. As I have mentioned before, the analysis of judicial networks of human rights courts has employed for a very long time an almost exclusive focus on a few international courts and on (Western) European and North American liberal constitutional states with a functioning judiciary.Footnote 50 Some scholars describe these mainstreaming effects of ‘dialogue’ and the related pull towards the center as the building and securing of hegemonic influence.Footnote 51
The socialization processes manifest precisely in the postulation of common purposes, the alleged existence of a ‘consensus’ and the idea of a shared professional culture. These references to common interests and purposes claim to ‘identify’ the community-wide validity of a particular idea, value or interest.Footnote 52 Yet they also express an interest in universalizing this idea, value or interest in the first place.Footnote 53
Similar to the public sphere at the domestic level, transnational judicial dialogues cannot dispense with domination.Footnote 54 As the fragmentation debate in international law has shown, behind concerns about systemic coherence and unity lie not only normative but institutional conflicts and rivalries. These institutional interests affect the dialogues and result in a heterogeneous quest for ‘systemic integration’. An inter-institutional dialogue always also entails struggles about influence and authority.
Paradigms and pragmatism
Friedrich Kratochwil has reminded us that the rule of law has developed from a political notion empowering free citizens as the authors of law to a construct empowering legal professionals who administer the legal order.Footnote 55 What Kratochwil sharply observes behind the shifting meaning and function of the rule of law is an empowerment of those who determine its meaning. I agree that these ‘shifts’ – or, rather, additional layers – of the meanings, functions and purposes of our conceptions have far-reaching consequences. If judicial dialogue is understood as a new paradigm of judicial cooperation, this not only shifts the meaning of judicial reasoning, but has also effects on the ‘judicial function’. This changing function becomes problematic when judges substitute or compensate for other democratic institutions and processes. Thus judicial dialogue may lead us to think of courts instead of other actors and processes.
A final qualification relates to the idea of dialogue itself. Cross-references between courts do not necessarily take the form of a dialogue understood as a mutual exchange.Footnote 56 A court’s opinion needs to be cited and interpreted by others in order to exert influence in a dialogue. As in all discourses, the reception of a court’s voice, and the weight and meaning given to it, depend on selective and interpretative processes by other courts. We hardly know which judgments and decisions are overlooked or remain unmentioned in judicial reasoning. Hence, the selection and interpretation of foreign jurisprudence by a court might be less motivated by an interest in contributing to a transnational judicial dialogue than in finding strategic support for a preferred argumentation in a particular case. The decision about whether or not to engage in dialogue with other courts, how the opinions of other courts are weighted and what meaning these opinions receive can, therefore, be less a matter of commitment to a common purpose than of strategic choice and pragmatic interest.
I emphasized in this section that judicial dialogue entails inequalities, universalizing processes, socialization dynamics and pragmatic interests. This in turn conditions the functions and the meanings of judicial dialogue. It questions its effectiveness and legitimizing potential. Increasingly, judges find themselves placed (and, on occasion, place themselves) within universal ambitions that go far beyond the adjudication of a concrete case.Footnote 57 Only if a reference to a foreign court is construed as a dialogue,Footnote 58 with particular meanings and purposes, does judicial dialogue become an expression of collective action.Footnote 59 Judges become agents of allegedly ‘common’ interests and shall ensure the progress, unity, consistency and legitimacy of a transnational legal order. Their voice is taken out of the context of concrete decision-making in the case at hand and relocated into the realm of a transnational community, a network or into humanity. In the next section, I discuss how a theoretical understanding of judicial dialogue that acknowledges these inherent conditionalities and contingencies could guide more critical research on judicial dialogue and judicial legitimacy.
V. Judicial dialogue and the transnational challenge
It remains one of the most difficult challenges for governance and democratic theory to accommodate the fact that an ever-growing range of actors escape traditional roles in transnational governance activities. This is also true for courts. On occasion, judges do engage in ‘law-making’, participate as partisans in public discourses and set policy goals. It would be a mistake to believe that courts do this only to fill ‘gaps’ and to compensate for the powers lost by allegedly disaggregated states. Judges may, in fact, actively seek to enlarge their own authority.Footnote 60
A more critical understanding of judicial dialogues can provide a refined awareness of how and why these dialogues influence judicial decision-making, how they are contingent on and reflect social power structures and how international, regional and domestic dialogical spheres interact.Footnote 61 Such an approach places judicial dialogue in the social contexts of institutionalization processes, functional cooperation and professional mainstreaming. It also helps to critically question the construction and legitimization of new forms of public authority.
It is a fundamental cornerstone of Habermas’s theory of deliberative politics that ‘discourses do not govern’.Footnote 62 Opinions formed in the public sphere need to gain communicative power, and for this they require transformation through an institutionalized political process. As Habermas observes:
In fact, the interplay of a public sphere based in civil society with the opinion- and will-formation institutionalized in parliamentary bodies and courts offers a good starting point for translating the concept of deliberative politics into sociological terms … within the boundaries of the public sphere, or at least of a liberal public sphere, actors can acquire only influence, not political power. The influence of a public opinion generated more or less discursively in open controversies is certainly an empirical variable that can make a difference. But public influence is transformed into communicative power only after it passes through the filters of the institutionalized procedures of democratic opinion- and will-formation and enters through parliamentary debates into legitimate lawmaking. The informal flow of public opinion issues in beliefs that have been tested from the standpoint of the generalizability of interests. Not influence per se, but influence transformed into communicative power legitimates political decisions. The popular sovereignty set communicatively aflow cannot make itself felt solely in the influence of informal public discourses – not even when these discourses arise from autonomous public spheres. To generate political power, their influence must have an effect on the democratically regulated deliberations of democratically elected assemblies and assume an authorized form in formal decisions. This also holds, mutatis mutandis, for courts that decide politically relevant cases.Footnote 63
In particular, the last sentence of this quote deserves our attention. Throughout his work, Habermas stresses parliamentary debates and institutional law-making as indispensable filters to transform public opinion into legitimate political decisions. It is, therefore, not surprising that in his contributions on European and international law, Habermas does not primarily focus on courts but on the development of political and representative organs and on civil society actors.Footnote 64
Professor Nancy Fraser is one of the scholars to have put forward challenging questions about how a critical theory of a transnationalized public sphere could be developed.Footnote 65 Such transnational spheres are necessary to hold transnational authorities accountable. Fraser asks how we can reconceptualize the ‘who’ of public deliberation (dispersed interlocutors of global discourses in addition to national citizenry), the ‘what’ (transnational in addition to national public opinions and common interests), the ‘where’ (the global, ‘glocal’ and the cyperspace in addition to the nation-state), the ‘how’ (social media and new technologies in addition to traditional media) and the ‘to whom’ (private, public and semi-public transnational powers in addition to state institutions) in order to meaningfully interrogate the legitimacy and efficacy of public opinion.Footnote 66 She proposes to reconceptualize both the group of interlocutors, who can form legitimate public opinions, and the possible addressees of public opinion, who are able to translate public opinion into administrative power. She writes:
[A critical conception of public-sphere theory] must consider the need to construct new addressees for public opinion, in the sense of new, transnational public powers that possess the administrative capacity to solve transnational problems. The challenge, accordingly, is twofold: on the one hand, to create new, transnational public powers; on the other, to make them accountable to new, transnational public spheres. Both those elements are necessary; neither alone is sufficient. Only if it thematizes both conditions (capacity as well as translation) will public-sphere theory develop a post-Westphalian conception of communicative efficacy that is genuinely critical.Footnote 67
It is here that the reconstruction of the concepts of civil society and the public sphere gains renewed relevance. Legal and governance scholars tend to focus on the exercise of various forms of authority, but downplay inherent systemic conditionalities and often overlook the fundamental role of critical public spheres. On the other hand, scholarship on (transnational) public spheres focus on civil society, parliaments and the economy but neglect the role of courts as strong, decisional publics. Andrew Arato, Jean Cohen and other scholars emphasize the need for mutual understanding and agreement on intersubjectively recognized norms that involve also communicative processes of learning, integration and socialization. This in turn requires a juridification in order to stabilize these processes, and it also requires mediating institutions that can translate the influence of civil society and public opinions into political power.Footnote 68
It is worth thinking further about the question of the role played by courts as transnational public actors without converting them into principal governance agents. Courts can stabilize or destabilize this juridification by either strengthening or weakening decisional and informal publics. More importantly, courts have strong decisional powers without belonging to the ‘political society’ of parliaments and parties. Courts thus require both formal and informal democratic oversight beyond the nation-state.
If we follow this deliberative liberal idea of democracy and public discourse, then courts too are addressees for public opinion and may function as ‘filters’ and ‘mediating institutions’ that can transform public opinion into politically effective communicative power. Also, through courts civil society ‘can gain influence over political/administrative and economic processes’.Footnote 69 In addition, courts can help to create transnational publics, empower counter-publics, foster interaction between different types of publics and mediate between them. In fact, the judicial strengthening of transnational publics that are in turn able to hold also courts accountable would be a crucial contribution of courts to the legitimacy of their own public authority.
However, as I have argued, courts cannot substitute for these public discourses in civil society or parliaments. They do not merely detect, identify and interpret problems affecting society as a whole in an open-ended way; they deliver authoritative decisions.Footnote 70 The public sphere, the rule of law and the legitimate exercise of authority cannot be transplanted, complemented or substituted at will, not even on different ‘multi-levels’ or within a self-referential network of a transnational judiciary.Footnote 71
This understanding recognizes the discussed inequalities and systemic obstacles. There is no empty zone that is free of influence and inequalities.Footnote 72 This is why the plurality of public spheres is so essential for the legitimacy of public opinions.Footnote 73 This means that judicial dialogues need to recognize and protect diversity and pluralistic contestations within themselves beyond a ‘common opinion’. Especially in the international context, where there is no global institutionalized strong decisional public and no stable framework equivalent to the nation state, the interaction of judicial dialogical spheres to other local and transnational publics – strong and weak, as well as formal and informal – is essential to avoid a juristocracy.Footnote 74
Thus for our understanding of the public authority and legitimacy of courts, a deeper insight into the relation of courts to various publics and their legitimizing potential is essential. This is not only a question for empirical research; it also requires theoretical analysis and foundation. The discussion here has only been a first step towards these further inquiries into the potential and limits of judicial dialogues and wider interactions in light of critical democratic theory.
Dialogue is not panacea. Dialogue is always more than a neutral, open-ended process. In the foregoing discussion, I have not argued against the idea of judicial dialogue. I wanted to raise awareness of the wider functions and meanings of judicial dialogue and the inherent systemic obstacles that can taint the legitimacy and effectiveness of these dialogues.
Further critical research is needed on the nature and role of judicial dialogues in judicial governance in order to assess how courts influence transnational normative processes and how they can contribute to the strengthening of multiple transnational public spheres. In this research, we should not simply look for alternative fora and categories of authority that ‘simply’ require alternative forms of legitimization. Ultimately, the promise of judicial dialogue lies less in creating commonalities between courts and legitimizing their authority, than in bringing alternatives and a plurality of opinions to the fore.
The author wishes to thank Gráinne de Búrca, Andreas Føllesdal, Friedrich Kratochwil and especially the two anonymous reviewers who read earlier versions of this article and provided excellent comments. I am also grateful for comments by Claudio Corradetti, Hege Elisabeth Kjos, Amrei Sophia Müller and other participants of a PluriCourts conference at the University of Oslo, where an early version of this article was first presented and discussed. The usual disclaimer applies.