Chapter

Judicialization and the Construction of Governance

Alec Stone Sweet

in On Law, Politics, and Judicialization

Published in print August 2002 | ISBN: 9780199256488
Published online November 2003 | e-ISBN: 9780191600234 | DOI: http://dx.doi.org/10.1093/0199256489.003.0002
Judicialization and the Construction of Governance

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This paper, which was originally published in the journal Comparative Political Studies in 1999, is the second of two that elaborate a relatively general approach to judicial politics, which emphasizes the underlying social logics not just of law and courts but also of politics and government. The triad – two contracting parties and a dispute resolver – constitutes a primal social institution, a microcosm of governance, so in uncovering the institutional dynamics of the triad an essential logic of government itself is also uncovered; the objectives of this paper are to defend the validity of these contentions and to demonstrate their centrality to the discipline. After introducing the key concepts of dyad, triad, and normative structure, a model is presented of a particular mode of governance, i.e. the social mechanism by which the rules in place in any given community are adapted to the experiences and exigencies of those who live under them. The theory integrates, as interdependent factors, the evolution of strategic (utility-maximizing) behaviour and normative (cultural or rule-based) structure, and captures dynamics of change observable at both the micro level (the behaviour of individual actors), and the macro level (the institutional environment, or social structure, in which this behaviour takes place); the mechanisms of change that are endogenous to the model are specified, and the conditions under which these mechanisms would be expected to operate, and fail to operate, are identified. The model is then used to explain two hard cases of systemic change: the international trade regime, established by the 1947 General Agreement on Tariffs and Trade (GATT); and the French Fifth Republic, founded in 1958; the conclusion draws out some of the implications of the analysis for understanding of the complex relationship between strategic behaviour and social structure.

Keywords: construction of governance; courts; dyads; French Fifth Republic; General Agreement on Tariffs and Trade; governance; institutional change; institutional dynamics; international trade regime; judicialization; law; models; normative structure; social science; social structure; strategic behaviour; triads

Chapter.  14317 words.  Illustrated.

Subjects: Comparative Politics

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