Mapping Juridification

European Law Journal

Volumn 14, Issue 1, 2008, Pages 36-54

  Blichner, Lars Chr ^a   Molander, Anders ^b  

^a UNIVERSITY OF BERGEN   (Norway)

^b OSLO METROPOLITAN UNIVERSITY   (Norway)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 48149113704     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2007.00405.x     Document Type: Article

References (107)

1. Juridification is related to the two other concepts, 'judicialisation' and 'legalisation', concepts that are sometimes used more or less synonymously or at least overlap with the concept of 'juridification' as we understand it.
2. J. Habermas, The Theory of Communicative Action, vol 2 (Beacon Press, 1987), at 359.
3. See P. Brooker, 'The Juridification of Alternative Dispute Resolution', (1999) XX Anglo American Law Review 1, at 1, n 1.
4. See A. Stone Sweet, 'Judicialisation and the Construction of Governance', in M. Shapiro and A. Stone Sweet (eds), On Law, Politics and Judicialisation (Oxford University Press, 2002), at 71: 'I will use the term "judicialisation" as shorthand for ... the construction of judicial power'.
5. C. Neal Tate and T. Vallinder, The Global Expansion of Judicial Power (New York University Press, 1995), at 2. Tate and Vallinder are using the term 'judicialisation'.
6. See, e.g., H. W. Arturs and R. Kreklewich, 'Law, Legal Institutions, and the Legal Profession in the New Economy', (1996) 34(1) Osgoode Hall Law Review 29: 'This process of extrapolating expectations of lawfulness and fairness from state courts to other public agencies, and from the state sphere to private institutions, we will refer to as juridification'.
7. See J. Bohman, 'Reflexive Constitution-Making and Transnational Governance', in E. O. Eriksen (ed.), Making the European Polity (Routledge, 2005), at 39: 'I argue that the problem the constitution has to solve is juridification, or the possibility of legal domination in the face of institutions that cannot organise a singular and unified popular sovereignty. Such legal domination is not simply tyranny, but rather the imposition of a cooperative scheme upon others who cannot influence or revise its terms'.
8. See, e.g., J. Cohen, Regulating Intimacy. A New Legal Paradigm (Princeton University Press, 2002)
9. and also the enumeration of the downsides of juridification by Otfried Höffe, Vernunft und Recht (Suhrkamp, 1996), 41-42.
10. Compare also J. H. H. Weiler and J. P. Trachtman, 'European Constitutionalism and Its Discontents', [1996-97] Northwestern Journal of International Law and Business 354, at 355.
11. See, e.g., Erhard Blankenburg's distinction between levels of a legal culture ('The Infrastructure for Avoiding Civil Litigation: Comparing Cultures of Legal Behavior in the Netherlands and West Germany', (1994) 28(4) Law & Society Review 789). Blankenburg applies 'the term culture to the set of all interrelationships occurring at three levels: (1) the level of substantive law and procedural codes, (2) the level of institutions such as the courts and the legal profession, and (3) the level of legal behavior and attitudes toward the law. Each level might form a complex pattern by itself, but only comparisons of the relationships between all of them can lead to a comparison of legal cultures' (at 792). Our dimensions of juridification may be fruitfully related to Blankenburg's levels, and to his attempt to explain differences in legal practice in legal systems that are similar on the books.
12. For discussions on the rule of law as a normative standard see Lon L. Fuller and Joseph Raz, (L. L. Fuller, The Morality of Law (Yale University Press, 1969)
13. J. Raz, 'The Rule of Law and its Virtue', in J. Raz (ed.) The Authority of Law : Essays on Law and Morality (Clarendon Press, 2002), 210)
14. and the recent reconsideration of their contributions by Andrei Marmor in 'The Rule of Law and its Limits', (2004) 23 Law and Philosophy 1.
15. Meaning, for example, that we will not cover cases where a voluntary organisation or a business organisation becomes more regulated by the autonomous adaptation of formal rules to guide action within an organisation or between organisations. Furthermore our focus is on legal rules 'as opposed to rules produced by administrative or political decision-making' (B. Mauthe, 'The Notion of Rules and Rule-Making in the Central Local Government Relationship', [2000] Anglo American Law Review 317).
16. This is what J. Habermas refers to as Verrechtsstaatlichung (constitutionalisation of the state) in n 2 supra, at 359.
17. See also 'Hat die Konstitutionalisierung des Völkerrechts noch eine Chance?', in Der gespaltene Westen (Suhrkamp, 2004), at 113-192, where Habermas applies this concept of juridification to international relations. Dieter Grimm talks about a constitution as Verrechtlichung der Staatsgewalt ('Braucht Europa eine Verfassung?', (1995) 50 (16 June) JuristenZeitung 582
18. the English translation uses 'legalisation': (1995) 1(3) European Law Journal 282). Juridification in this sense roughly relates to what Hart refers to as secondary rules: 'primary rules are concerned with the actions that individuals must or must not do'; secondary rules 'are concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined'.
19. See H. L. A. Hart, The Concept of Law (Oxford University Press, 1972 (1961)), at 92.
20. See also J. H. H. Weiler and J. P. Trachtman who note that juridification (and legalisation) is sometimes used to describe a process of constitutionalisation: N 9 supra.
21. They are using the alternative concept of legalisation. See K. W. Abbott et al, 'The Concept of Legalisation', (2000) 54(3) International Organisation 401.
22. For a related analysis, distinguishing between juridification of 'rule application', 'rule enforcement' and 'rule making', see B. Zangl and M. Zürn, 'Make Law not War: Internationale und transnationale Verrechtlichung als Bausteine für Global Governance', in M. Zürn and B. Zangl (eds), Verrechtlichung - Bausteine für Global Governance (Dietz, 2004).
23. See, eg, F. V. Kratochwil, Rules, Norms and Decisions (Cambridge University Press, 1989), ch 7.
24. Michelman states that 'Every incomplete constitution is in that way always on the road to completion. (Every mature legal system is 'thick' with doctrine.)': F. Michelman, 'Constitutional Legitimation for Political Acts', (2003) 66(1) Modern Law Review 1, at 13. Such change, to the degree that it defines the competencies of the legal system, may either imply juridification A, when it adds to the competencies of the judiciary, or dejuridification A, when it infringes on these competencies.
25. See M. J. Richards and H. M. Kritzer, who sum up the literature relative to the concept of regime; 'the Court not only functions within constitutional regimes but also is central in creating those regimes': 'Jurisprudential Regimes in Supreme Court Decision Making', (2002) 96(2) American Political Science Review 305, at 308.
26. See also n 10: 'Jurisprudential regimes structure Supreme Court decision making by establishing which case factors are relevant for decision making and/or by setting the level of scrutiny or balancing the justice are to employ in assessing case factors': At 305.
27. J. Habermas, Between Facts and Norms (MIT Press, 1996), ch 9. Jean Cohen, in line with Habermas, defines a paradigm of law as 'an integrated set of cognitive and normative background assumptions about the relationship the law should establish between the state and society, and the form legal regulation must take', n 8 supra, at 143.
28. M. C. Tolley, 'Judicial Review of Agency Interpretation of Statutes: Deference Doctrines in Comparative Perspective', (2003) 31(3) The Policy Studies Journal 421.
29. Weiler, for example, writes of the European Court of Justice 'The Court on this reading is rightly perceived of as at least partially constitutive, and thus the creator of the legal order which it then applies': J. H. H. Weiler, 'A Quiet Revolution, the European Court of Justice and its Interlocutors' (1994) 26(4) Comparative Political Studies 512.
30. Case 294/83, Parti Ecologist 'Les Verts' v Parliament [1986] ECR 1339, at 1365.
31. J. Hunt, 'Legal Developments', (2003) 41 Journal of Common Market Studies 79.
32. Dejuridification A takes place when constitutive rules and principles in some way limit the former competencies of the legal system.
33. K. E. Whittington, for example, talks about the 'road not taken' in his discussion of the case of Dred Scott, referring to the dissenting views of Associate Justice Benjamin Curtis, that 'laid out the argument that some constitutional questions were best left unanswered by the Court'.
34. See Tolley, n 19 supra.
35. [1964] ECR 585.
36. Teleological reasoning on part of the court is provided for in the Treaty relative to attaining the objectives of the treaty. For a thorough discussion, see, e.g., Stefan Enchelmaier's critical review of Karen J. Alter. Enchelmaier states, 'mere silence on part of the Treaty does not mean anything in particular' and 'the intentions of the founder Member States of the Community are revealed, and sufficiently so, in the Treaty itself': S. Enchelmaier, 'Supremacy and Direct Effect of European Community Law Reconsidered, or the Use and Abuse of Political Science for Jurisprudence', (2003) 23(2) Oxford Journal of Legal Studies 288, at 289
37. K. J. Alter, Establishing the Supremacy of European Law (Oxford University Press, 2001).
38. Weiler, above n 20, at 514.
39. For example, the courts cautious approach to the principle of subsidiarity, be it for strategic integrationalist or technical legal reasons (the difficulty of making sense of the principle in legal terms). For a discussion see P. Syrpis, 'In Defence of Subsidiarity', (2004) 24(2) Oxford Journal of Legal Studies 323, at 326.
40. [2002] ECR II-2365.
41. For a more detailed account see Hunt, n 22 supra, at 85-86.
42. See R. Voigt, 'Verrechtlichung in Staat und Gesellschaft', in Verrechtlichung. Analysen zu Funktion und Wirkung von Parlamentarisierung, Bürokratisierung und Justizialisierung sozialer, politischer und ökonomischer Prozesse (Athenäum, 1980)
43. and 'Gegentendenzen zur Verrechtlichung', in Jahrbuch für Rechtssoziologie und Rechtstheorie, Band 9 (Westdeutscher Verlag, 1983).
44. Voigt defines Verrechtlichung in the later article as 'Der Prozess der Verrechtlichung, d.h. die Ausdehnung des Rechts zulasten rechtlich bisher nicht erfasster Bereiche einerseits und die Detalierung und Spezialisierung des Rechts anderseits' (at 17
45. see at 16 in the former article for a similar definition). Referring to Voigt, Habermas gives the following definition of 'juridification' in The Theory of Communicative Action, vol 2 (Beacon Press, 1987), at 359: 'The expression "juridification" [Verrechtlichung] refers quite generally to the tendency toward an increase in formal (or positive, written) law that can be observed in modern society. We can distinguish here between the expansion of law, that is the legal regulation of new, hitherto informally regulated social matters, from the increasing density of law, that is, the specialised breakdown of global statements of the legally relevant facts [Rechtstatbestände] into more detailed statements'.
46. Cohen, n 8 supra, at 152.
47. For statements to the same effect, see I. Maus, 'Verrechtlichung, Entrechtlichung under der Funktionswandel von Institutionen', in I. Maus, Rechtstheorie und politische Theorie im Industriekapitalismus (Wilhelm Fink Verlag, 1986), at 277-323. The thematisation of the distinction between equality before the law and substantial equality marks the transition from a liberal legal paradigm to a welfare state paradigm of law: 'The welfare paradigm (of law) deploys a particular form of law; substantive, purposive, goal oriented, and implemented through regulations, standards, and rules. This materialised law aims at achieving specific goals in concrete situations'.
48. See also Habermas, n 18 supra, at 392-409. Teubner's main thesis is that juridification 'does not merely mean proliferation of law', but 'signifies a process in which the interventionist social state produces a new type of law, regulatory law ... characterised by material rationality as opposed to formal rationality'
49. 'Juridification. Concepts, Aspects, Limits, Solutions', in G. Teubner (ed.), Juridification of Social Spheres. A Comparative Analysis in the Areas of Labor, Corporate, Antitrust and Social Welfare Law (Walter de Gruyter, 1987), at 18-19.
50. Habermas with reference to S. Simitis and G. Zenz, n 36, at 432, in The Theory of Communicative Action, vol 2 (Polity Press, 1986).
51. According to Voigt and Habermas (see n 32 supra) Verrechtlichung was first introduced into German academic discussion in the late 1920s by Otto Kirchheimer with reference to employment law.
52. See E. W. Orts, 'Reflexive Environmental Law', (1994-95) 89(4) Northwestern University Law Review 1227: 'juridification applies more broadly to any area of social life that the regulatory impulse of modern states deems worthy of "controlling" through enactment of highly technical and specific laws. Increasingly, juridification extends to the natural environment, a phenomenon some commentators refer to ironically as "legal pollution"' (at 1239 and n 47).
53. Cohen, n 8 supra.
54. B. Mauthe, 'The Notion of Rules and Rule-Making in the Central Local Government Relationship', (2000) XX Anglo American Law Review 317: 'The process of "legalization" represents a "transformation" in the "control" of local authority decision-making. The control alters from a basis of "authority" to control based on the exercise of a "power", specifically legal powers'.
55. For a recent account see, e.g., S. Enchelmaier, 'Supremacy and Direct Effect of European Community Law Reconsidered, or the Use and Abuse of Political Science for Jurisprudence', (2003) 23(2) Oxford Journal of Legal Studies 281.
56. The military has always been governed by strict rules, but these have gradually been subjected, first by the autonomous adaptation of rules guiding the legal system, and second by juridification, to 'external legal norms where ... being imposed on the armed forces in situations where such legal norms had hitherto been absent'
57. G. R. Rubin, 'United Kingdom Military Law: Autonomy, Civilianisation, Juridification', (2002) 65(1) The Modern Law Review 37.
58. See, e.g., A. Stone Sweet, Governing with Judges (Oxford University Press, 2000), at 157.
59. K. J. Alter, 'The European Union's Legal System and Domestic Policy: Spillover or Backlash? International Organization', (2000) 54(3) Legalization and World Politics 489, at 491.
60. We may distinguish between problem- and conflict solving to indicate that law has increasingly become instrumentalised in the sense that it not only is made to solve conflicts between interests, but also to solve collective goal attainment.
61. This is not necessarily irrational. When unsure about the law and its interpretation it may be prudent to act as if a certain law exists or a particular interpretation is valid (given, for example, the cost of legal advice, and potentially a lawsuit).
62. For example: Lay conflict solving, public conflict solving, professional legal conflict solving, administrative conflict solving or conflict solving by committees. The reflexive procedural legal paradigm on this account refers to institutionalised non-judicial conflict solving; see Cohen, n 8 supra, at ch 4.
63. See A. Stone Sweet and T. Brunell, 'The European Court and Integration', in Shapiro and Stone Sweet, n 4 supra, at 258-291.
64. See also Alter, n 42 supra, at 492: 'with individual litigants raising cases and national courts sending these cases to the ECJ, states are less able to exploit legal lacunae and interpret their way out of compliance with European law', at 492, which in our language would mean that juridification A and C at the EU level leads to dejuridification D at the national level.
65. This way of conceptualising juridification as judicialisation is often used. See, e.g., C. Neal Tate and T. Vallinder, The Global Expansion of Judicial Power (New York University Press, 1995)
66. Stone Sweet, n 4 supra
67. and J. Nergelius, 'North and South: Can the Nordic States and the European Continent Find Each Other in the Constitutional Area - or are They too Different?', in M. Scheinin (ed.), Welfare State and Constitutionalism - Nordic Perspectives (Nordic Council of Ministers, 2001).
68. According to Nergelius 'Judicialisation ... refers to judicial power in general' (at 79) and it 'may be seen as symptomatic for judicialisation that courts get more powers at the expense of political institutions' (at 83).
69. See even Habermas, n 2 supra, at 370, where he speaks of the 'paradoxical proposal to dejudicialise juridified family conflict' referring in normative terms to a possible solution to the problem that arises when communicatively structured areas of action are taken over by a judiciary with far-reaching interpretative discretion.
70. For a more thorough discussion see B. Leiter (1994) 'Determinacy, Objectivity and Authority', (1994) 142 University of Pennsylvania Law Review 559.
71. This implies juridification A or B, and may be affected by juridification C. Juridification D relates to A when interpretive power is used to establish or change constitutive rules and principles. Juridification D relates to juridification B when interpretative power is used to refine a particular law. Juridification D relates to juridification C when interpretative power is used to reject a case.
72. This in line with Kenneth A. Armstrong's more elaborate institutional argument: 'while ECJ possesses agency, nonetheless, over time as processes of institutionalisation within law becomes pervasive, the action of the ECJ (together with those of other actors seeking to steer law) are themselves structured by law. Importantly, path-dependencies are created which both limit and facilitate action. Past action may create unintended or undesirable consequences which frame the possibility for future institution building and future intermediation by the ECJ between law and its environment': 'Legal Integration: Theorising the Legal Dimension of European Integration', in (1998) 36(2) Journal of Common Law Review 156.
73. See also M. J. Richards and H. M. Kritzer, 'Jurisprudential Regimes in Supreme Court Decision Making', (2002) 96(2) American Political Science Review 305.
74. Supported by the institutional voting rules that made it difficult for Member States to change formally or clarify this mandate.
75. By this, we mean the heightened awareness of the important role played by the legal system within the EU in particular with reference to the social subsystems; see Armstrong, n 50 supra.
76. Just the renumbering of Articles, according to Nigel Foster, has 'considerably complicated the discussion of EU law': N. Foster, 'Legal Developments', (2000) 38 Journal of Common Market Studies 82.
77. See R. Bieber and C. Amarelle, 'Simplification of European Law', in F. Snyder (ed.), The Europeanisation of Law (Hart, 2000), ch 13, at 219-241.
78. See U. Haltern, 'Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination', (2003) 9(1) European Law Journal 14.
79. G. Jellinek, System der subjektiven öffentlichen Rechte, vol 2 (Aufl. Tübingen, 1905).
80. See R. Alexy, Theorie der Grundrechte (Suhrkamp, 1986), at 229-243.
81. See J. Habermas, 'Struggles for Recognition in the Democratic State', in C. Cronin and P. De Greiff (eds), The Inclusion of the Other (MIT Press, 1998), at 215-220.
82. The arrow means 'lead to' and denotes a positive relationship. A negative relationship will be indicated by a - sign in front of the letter referring to a specific form of juridification (e.g. - A).
83. Confer Lawrence Friedmans analysis of US legal development in Total Justice (Beacon Press, 1985). In Friedmans' terminology E denotes 'a general expectation of justice, and a general expectation of recompense for injuries and loss' (at 5 and 43).
84. Thus, our way of thinking has a lot in common with Jon Elsters view on mechanisms. See J. Elster, 'A Plea for Mechanisms', in P. Hedström and R. Swedberg (eds), Social Mechanisms. An Analytical Approach to Social Theory (Cambridge University Press, 1998).
85. 5-1 = 1920).
86. Habermas, n 2 supra, at 356.
87. ibid, at 361
88. ibid, at 361.
89. ibid, at 362.
90. ibid, at 362.
91. ibid, at 363
92. I. Maus, 'Verrechtlichung, Entrechtlichung und der Funktionswandel von Institutionen', in I. Maus, Rechtstheorie und politische Theorie im Industrikapitalismus (München, 1986), at 306.
93. At 370.
94. 'The lifeworld is assimilated to juridified, formally organised domains of action and simultaneously cut off from the influx of an intact cultural tradition. In the deformations of everyday practice, symptoms of rigidification combine with symptoms of desolation': Habermas, n 2 supra, at 327.
95. Habermas, n 18 supra.
96. J. Habermas, 'Paradigms of Law' (1995-96) 17 Cardozo Law Review 778.
97. Teubner, n 33 supra, at 18-19.
98. ibid, at 6.
99. ibid, at 11.
100. ibid, at 16.
101. ibid, at 16.
102. W. E. Scheuerman, 'Reflexive Law and the Challenges of Globalisation', (2001) 9(1) The Journal of Political Philosophy 81.
103. Teubner, n 33 supra, at 26.
104. Stone Sweet, n 41 supra, at 13. TDR means Triadic Dispute Resolution, 'a triad which is comprised of the two parties to the conflict and the dispute resolver': At 12.
105. In Shapiro and Stone Sweet, n 4 supra, at 71.
106. Stone Sweet, n 41 supra, at 195.
107. '... Bonini's paradox - the more realistic and detailed one's model, the more the model resembles the modeled organisation, including resemblance in the directions of incomprehensibility and indescribability': W. H. Starbuck, 'Organisations and their Environments', in M. D. Dunnette (ed.), Handbook of Industrial and Organisational Psychology (Rand, 1976), at 1101.