Understanding Courts in Context:: On the Embeddedness and Interaction of Judicial Bodies in a Functionally Differentiated World Society

In: European review of international studies: eris, Band 5, Heft 1, S. 5-27

Abstract

Are the numerous judicial bodies that we tend to very generally subsume under "international courts" or "international adjudicative bodies" really like-units, or are they rather highly diverse institutions that call for a more careful, not only typological, but also theoretical differentiation? The aim of this article is to make a theoretically grounded contribution to the questions of (a) in what ways international judicial institutions are dependent on the functionally differentiated settings they are embedded in, and (b) in what ways they are influenced and altered by the organisational frameworks of their operation. The starting point of the inquiry will be a critical discussion of systems theory and rationalist approaches, as these approaches involve opposite positions with regards to the embeddedness and interaction of judicial bodies in a functionally differentiated world society: while the former entails an exclusive logic, the latter is essentially based on an inclusive model. The claim is that both models enable us to better understand rather ideal-type cases of how judicial institutions (inter)act in practice. It will be argued that the modus operandi of diverse courts, (arbitral) tribunals, and quasi-judicial institutions is typically subtler and more complex and can be most likely understood – due to their entanglement with other functional settings – as being transclusive or substitutive in nature. Both concepts will be introduced and applied here as parts of a contextualist approach towards understanding international judicial institutions.