Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice

Abstract

This chapter explores a different issue raised by the Andean Tribunal of Justice's (ATJ's) origins as a legal transplant — when do international judges engage in expansive judicial lawmaking? Although many scholars assert that international courts are hard-wired for self-aggrandizement, this comparative study of the ATJ and the European Union's Court of Justice (ECJ) reveals that the political contexts in which courts are embedded are critical to how expansively they interpret their authority. Hence this chapter develops the Andean Community analogue to Joseph Weiler's famous account of the ECJ's transformation of Europe. It explores how variations in political support for integration over time have influenced lawmaking by international judges in the Andes and in Europe. The chapter focuses in particular on the ATJ's refusal to follow the ECJ in transforming the Andean Community's founding treaty, the Cartagena Agreement, into a constitutional blueprint for regional integration.