Courts Across Borders: The Implications of Judicial Agency for Human Rights and Democracy

Abstract

The global expansion of human rights has shifted modes of political engagement in significant ways. This article analyzes this shift as one towards "judicial agency," where an increasingly dense web of legal rights mediated by judicial and administrative bodies enables the individual to bypass traditional democratic forms of political mobilization. Through this new mode of political engagement, litigants challenge legislative and executive authority as they cross organizational and even national boundaries through a "nesting process," seeking judicial ways through which they can restructure rules and norms over a range of issues. This development is particularly marked in the European Union.

Playing Hard(er) to Get: The State, International Couples, and the Income Requirement

“…Firstly, they argue that legal constraints greatly limit the power of governments about who to admit, either because the "international human rights regime" imposes external restrictions on sovereignty (Jacobson and Ruffer, 2003;Sassen, 2006), or because liberal states tend to be restrained internally by constitutional stipulations (Joppke 1998). This is especially true for asylum and family migration.…”

Gaygusuz v. Austria: Advancing the rights of non-citizens through litigation

“…Human rights have been discussed as a value system, as international law, and as a decisive framework that motivates human rights activism (Barber 2012;Jacobson/ Ruffer 2002;Kaleck 2012). Additionally, international human rights law has altered political dynamics, "as states unwittingly presented openings for civil society actors and civil society actors in turn adroitly used these opportunities to advance human right goals" (Tsutsui et al 2012: 375f.).…”

Constructing Fortress Europe: Third Country Nationals As Unwelcome Guests

“…Faist posits that in light of this concept, certain individual rights have not only been enlarged, but they have also been Europeanized and, to an extent, institutionalized so that a right enjoyed in one EU member state can be enjoyed in another EU member state. Jacobson and Ruffer (2003) further this view by claiming that there exists a development in the importance of EU and national level judicial agencies on the expansion of migrant rights. A critical principle of this claim is the role of the "nesting effect," which means that "people will go to a higher nested organization to appeal, judicially, for recourse; but only so far as they have to go (for example, the province is preferred over the state; or the state over a regional organization)" (Jacobson & Ruffer, 2003, p. 86).…”