Terms and Conditions (Glossary): Juridification

One of the initial observations that led to the development of “Terms and Conditions” pertains to a significant shift in the relationship between law, politics, culture and economy. Political disputes increasingly lead to legal action because conflicts do not seem to be resolvable in any other way. The growing role played by constitutional courts in different national legal and political contexts; the repeated activation of international courts to negotiate issues of international law or commercial law that can no longer be resolved through other means; the expansion of the law into the realm of private relationships and forms of life; the increasing legal regulation in the field of culture (from copyright issues to legally binding codes of conduct for cultural institutions)—these and other developments bring to mind a term that was already deployed at the beginning of the 20th century as a response to the contradictions between class war and statehood to be later taken on by Jürgen Habermas in order to define a phenomenon contingent on the legitimation crises of late modern societies, i.e. the “colonization” of the “lifeworld” by the law, or “juridification”. Today, many legal experts and political theorists argue that the principle of the rule of law is endangered by the inflationary invocation of the law to solve political problems. Democracy under the rule of law is confronted with a paradox, the effects of which could also prove disastrous with regard to the arts. In this respect, it seems necessary to first elaborate the conceptual foundations of the discourse on “juridification”. (Tom Holert, Harun Farocki Institut)

By Natascia Tosel (ICI Berlin)

Juridification is a complex phenomenon, with the term referring to the increasing use of law by social actors as a privileged means to advance their political demands. To provide a definition that encompasses its many aspects, it is first of all necessary to distinguish it from related terms such as “judicialization” and “juristocracy,” which are part of the same conceptual constellation but in contrast to which juridification represents an element of novelty.

Juridification unfolds under the long-standing process of the “judicialization of politics” (Botero et al. 2022; Ferejohn 2002; Hirschl 2013; Shapiro and Stone Sweet 2002; Sieder et al. 2005), which describes the growing intervention of courts in public policy and political disputes. Judicialization is usually traced back to the end of WWII, as a consequence of two interrelated phenomena. On the one hand, the proliferation of human rights charters led to the expansion of legal institutions at the international and supranational levels aimed at guaranteeing human rights protection. On the other hand, mechanisms for judicial review, meaning the power of a court to declare a law unconstitutional, have been adopted by a growing number of legislative orders. As a result, courts no longer limited their role to the application of legislative decisions but intervened in political controversies concerning various issues such as “religious liberties, equality rights, privacy, and reproductive freedoms, public policies pertaining to criminal justice, property, trade and commerce, education, immigration, labor, and environmental protection” (Hirschl 2013: 253).

Under the umbrella term “judicialization,” two other concepts have recently emerged that capture the specific transformations this process has brought about in the first decades of the 21st century, namely “juristocracry” and “juridification.” Even though they encapsulate different perspectives, both of these terms imply a shift within the paradigm of judicialization—away from the centrality of judicial power to the specifically political transformation the paradigm implies. Juristocracy, in particular, indicates a change in the way in which citizens of democratic states are governed. The term describes a new form of “government by judges” (Stone Sweet 2000; Hirschl 2004; Graber 2006), where political decisions traditionally rendered by institutions of political representation such as parliament are replaced by court rulings. According to advocates of juristocracy, this new governmental paradigm, in which the legal intrudes into the political sphere, results from a strategy shared by judicial, political, and economic elites: Juristocracy aims to preserve the hegemonic power of these elites by limiting the impact of popular pressure on policy-making. From this perspective, political elites, despite often publicly accusing the courts of abusing their power or of “judicial activism,” actually favour judicial policy-making because they don’t have to make unpopular decisions and hence can preserve their popular support.

While juristocracy is a term that views current developments in judicialization negatively, predicting a conservative and increasingly less democratic polity, juridification is a more ambiguous concept and therefore open to multiple interpretations. Discussions on juridification focus on the increasing use of legal arguments and tools within political battles. In short, juridification explores the transformation politics undergoes when taking recourse to legal means (Blichner and Molander 2008; Croce 2021; Liste 2021; Magnussen and Banasiak 2013). The specificity of the concept lies in its reference to the growing tendency to use the courts as a political arena in which citizens translate their demands for political reform into legal claims for rights protection. This transforms the ways in which political and social changes are conceived and pursued.

In contemporary debates in political theory and socio-legal studies, this transformation is subject to at least two different interpretations. On the one hand, juridification is often coupled with depoliticization (Benbow 2019; Bevir 2009; Davis 2010; Jessop 2014; Masterman 2009; Trägardh and Carpini 2004). That is, juridification is held responsible for shifting the boundary between the legal and the political to the detriment of the latter. In line with the interpretation of the phenomenon from critical theory—where the term was first coined and used, notably in the work of Otto Kirchheimer and Jürgen Habermas (cf. Tavolari 2018), to denote a legal formalization of social spheres—advocates of juridification as depoliticization argue that demands for legal recognition cannot replace political participation. Indeed, the use of litigation for political purposes fosters a culture of “adversarial legalism” (Kagan 2001), where political actors conceive of themselves primarily as legal subjects engaged in the defense of their own interests. This is considered one of the factors contributing to increasingly low voter turnouts and consequent crises of traditional political legitimation.

Furthermore, the growing use of legal tools for political purposes is considered harmful not only to representative institutions, which are severely weakened, but also to citizens themselves. As Wendy Brown (2000) argues, the use of rights to obtain legal recognition by citizens who do not feel represented by political institutions and who often belong to marginalized social groups is “paradoxical.” The recognition the law can guarantee is the result of an abstraction with respect to the concrete social conditions in which rights-claimers live. Legal recognition, therefore, runs the risk of having a depoliticizing effect because it normalizes the identity of subordinated subjects as subjects of law, disregarding the specificity of the oppression and suffering experienced by those who appeal to the law (Loick 2014).

On the other hand, there is a second scholarly trend that reads juridification as a new form of political struggle and resistance, rather than a symptom of a growing democratic deficit. This interpretation emerges mainly from legal anthropology, particularly from analyses that take a perspective on law “from below” (Eckert et al. 2012; Sieder 2020; Sousa Santos and Rodríguez-Garavito 2005). According to this view, juridification has a threefold transformative potential. First, it can have policy-changing effects, as demands for the protection of rights can influence parliamentary reforms, leading to the increased inclusion of minority groups within the category of citizens, thereby improving their livability conditions. Secondly, the use of litigation and especially class actions has looping effects on law-users in terms of identity- and group-making. This means that it can favor the mobilization of social movements that aim to negotiate, through the medium of law, the very meaning and possibility of existence of their practices and conduct.

Third, when groups and subjects excluded from state recognition, such as indigenous groups, appeal to the courts, they do not only demand inclusion in state law. Indeed, legal struggles also have the potential to make different normative frameworks intelligible, often drawing on alternative legal ontologies and epistemologies. For instance, some Western legal categories, such as property and family, can be challenged by unconventional practices and norms that demand to be framed in legal terms. In this regard, juridification is conceived within the framework of legal pluralism and in the direction of a denationalization of law that reinforces rather than neutralizes political battles.

As can be seen from this brief description, the term juridification is neither homogeneous nor unilinear, but rather a concept open to different interpretations. Beyond the polarization between readings that equate it with depoliticization and those that identify it as a new form of political struggle, the fundamental characteristic of juridification remains its nature as a political phenomenon. It describes a complex dynamic involving a plurality of actors (citizens, judges, political elites, social movements) that is changing the way politics is conceived and conducted. To this extent, the concept calls for a rethinking of our political lexicon, challenging the very definition of the political.

References

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