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International Courts and Democratic Backsliding

Mar 31, 2020

Tom Ginsburg

Volume 46 (2019) - Issue 1

In his 2017 Charles N. Brower Lecture on International Dispute Resolution at the Annual Meeting of the American Society of International Law, David Caron considered the role of international adjudicators in dealing with the various social functions that are implicated by courts.1 Drawing on ideas associated with Martin Shapiro, he noted a fundamental distinction between the functions of courts—which scholars have characterized as including lawmaking, social control, legitimation, and regime construction, among many others—and the task of adjudicators, whose core job is resolving the dispute before them on the basis of the relevant law. There is a great temptation, as Shapiro noted, for adjudicators to take broader social functions into account, but there are also great risks when there is a misalignment between these functions and the limited task of dispute resolution, in which judges are to some extent agents of the parties. Caron urged adjudicators to focus on the task rather than the functions, arguing that only by doing so could they preserve the integrity of the institutions they inhabit. It is a call, in some sense, for professionalism, self-awareness, and humility, virtues David embodied but which are in painfully short supply today.