International Judicial Legitimacy: Lessons from National Courts

Abstract

How can international courts better establish their legitimacy? We can better answer this question by first focusing on what scholars have learned about how national courts build legitimacy over time. The literature suggests that national courts strategically build legitimacy by balancing their own policy preferences with those of their audiences. In so doing, they attempt to avoid instances of court curbing that can diminish legitimacy over the long run. Applying a similar strategy may be more difficult for international courts for two key reasons: (1) they serve audiences with more diverse preferences than national courts; (2) they are less likely to be able to predict which rulings will result in significant backlashes from these audiences.