Using Law to Depoliticize Adjudication? A Skeptical Thesis

Maurits Helmich

Research output: Types of ThesisDoctoral ThesisInternal

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Common sense wisdom and legal dogma alike dictate that judges should not get involved in the game of “politics”. Still, the precise applied meaning of this norm remains rather unclear. In modern-day democracies, courts play a key role in interpreting and (co-)defining the central norms that govern society. That role, one might assert, is in itself inherently political. The question, then, is how sensible it remains to talk and think about adjudication as an activity that could (let alone should) ever be “apolitical”. If apolitical adjudication is an oxymoron anyway, we might as well give up the norm that judges should not be involved in politics in its entirety.
Maurits Helmich argues that norms of apolitical adjudication need not be rejected outright: they make sense as technical legal concepts. That is to say, jurists quite sensibly use the label of “political” adjudication to pejoratively identify court judgments that violate standing interpretive or constitutional-systematic norms. In itself, there is no theoretical problem with using the political/apolitical distinction in that fashion. Still, there is a catch: coherent as political/apolitical distinctions may be, that way one uses and operationalizes them in practice reflects normative commitments that are (paradoxically) themselves politically colored.
To substantiate his skepticism towards the view that the functioning of courts could ever truly be depoliticized, Helmich delineates three main ways in which political quarrel and ideology necessarily informs adjudication. First, in the very fact that courts presume the authority of the constitutional order they represent already makes their functioning tied to elementary political commitments. When the legitimacy of the constitution as such becomes a topic of controversy, the only thing that still underpins the authority of courts is their raw political power. Second, courts have a political role in interpreting legal and judicial norms. Even if the authority of the constitution as such is not a topic of controversy, the effective room that courts have in choosing how the law should be interpreted should already be seen as reflecting political power. Third, judicial institutions play an inherently political role insofar as they build on definitions regarding who or what counts as the moral core of the democratic society. Courts regularly emphasize that national political institutions have a legitimate scope of political autonomy (the “margin of appreciation”), but when and how courts ultimately appeal to that norm remains politically charged.
Original languageEnglish
Awarding Institution
  • Erasmus University Rotterdam
  • van der Burg, Wibren, Supervisor
  • Poort, Lonneke, Co-supervisor
Award date30 Sept 2022
Place of PublicationRotterdam
Publication statusPublished - 30 Sept 2022


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