Stone Sweet Research Articles

Walking Back Dissents on the European Court of Human Rights: A Rejoinder to Alec Stone Sweet, Wayne Sandholtz and Mads Andenas

Abstract Over the last decade, scholars have debated whether the shifting landscape of individual rights protection in Europe has influenced the decisions of the European Court of Human Rights (ECtHR). In our article, ‘Walking Back Human Rights in Europe?’, we analysed every minority opinion of the ECtHR Grand Chamber between 1998 and 2018. We found a substantial increase in what we labelled as ‘walking back dissents’ – minority opinions asserting that the Grand Chamber has overturned prior case law or settled doctrine in a way that favours the government. In their Reply, Stone Sweet, Sandholtz and Andenas (SSA) offer two principal critiques. First, they assert that they could not ‘replicate’ our coding. Second, SSA challenge our claim that legal and political developments in Europe have incentivized the ECtHR to move in a rights-restrictive direction. These claims are inaccurate and mischaracterize our article. First, SSA do not ‘replicate’ our study. Instead, they code a very small subset of judgments using more restrictive, subjective and vague criteria – which, unsurprisingly, yield fewer walking back dissents. Second, SSA narrowly focus on the Brighton and Copenhagen conferences, ignoring numerous other changes at the national and regional level that have created a more constrained environment for the ECtHR.

Legislative aims and the Kantian supranational court: A comment on Alec Stone Sweet and Clare Ryan, A Cosmopolitan Legal Order

AbstractIn my short comment on the new book by Alec Stone Sweet and Clare Ryan, I claim that the European Court of Human Rights does not take the ‘legitimacy of state goals’ step in its proportionality analysis seriously enough, relegating all its hard intellectual work to the next step: necessity scrutiny. What is puzzling about Stone Sweet and Ryan’s book is that this observation about the ECtHR hardly registered in the book’s argument, even though a Kantian perspective seems to be quite hospitable to a consideration of the scarcity of goal scrutiny in ECtHR case law.

The European Convention of Human Rights as a Kantian cosmopolitan legal order

AbstractInA Cosmopolitan Legal Order: Kant, Constitutional Justice and the European Convention on Human Rights, Alec Stone Sweet and Clare Ryan argue that there has been the emergence of, and increasing prospects for, a cosmopolitan legal order based on the Convention. This symposium aims to engage with, and to better explore, the theoretical implications and practical legal ramifications of their argument. In doing so, this first article acts as a general introduction to the symposium, laying out the major arguments of the book as well as arguments presented by the symposium contributors. Moving beyond the summative, this introduction also situatesA Cosmopolitan Legal Oderwithin broader debates in global constitutionalism, while defending its use of Kant’s cosmopolitan theory. Lastly, it explores some of the key implications and challenges that arise from the symposium itself, rooting these insights within the current context of anti-globalism, nationalism, populism and neo-sovereigntism, and the corresponding necessity for a more transitional and pluralistic response as offered inA Cosmopolitan Legal Order.

Dialogic constitutionalism and judicial review

AbstractIn A Cosmopolitan Legal Order: Kant, Constitutional Justice and the European Convention on Human Rights, Alec Stone Sweet and Clare Ryan reconstruct Kant’s legal philosophy as a program of cosmopolitan legal order (CLO). A CLO is defined as a multi-level, judicialized, transnational system of rights protection that confers on all persons, by virtue of their humanity, the entitlement to challenge the rights-regarding decisions of public officials, who are under an obligation to assure the equal juridical status of all. The authors illustrate this claim with respect to the development of the ECtHR and the Court of Justice of the European Union. While generally agreeing with their argument, I claim that they minimize the republican aspects of Kant’s political philosophy in favour of strong judicial review. After outlining republican and democratic objections, I claim that their book illustrates a model that I call ‘dialogic constitutionalism’. Dialogic constitutionalism does not neglect legislative authority, but places it in a conversation with judicial authority, whether domestic or transnational; such conversations can serve to upgrade standards of rights protection over time and are not frozen precommitments. Constitutions also have a representative function of standing for the intergenerational continuity of the people, whereas legislatures are bound by electoral cycles.

The ECtHR, transregional dialogues and global constitutionalism

AbstractIn A Cosmopolitan Legal Order, Stone Sweet and Ryan suggest that ‘from the standpoint of global law, we see that the [European Court of Human Rights] has taken its place in a pluralist, rights-based international order, as one trustee of this global order’. This article is a preliminary attempt to evaluate signs of movement toward global rights review. A multi-level charter of rights exists in the network of international and regional human rights treaties and in national constitutions. An incipient structure of global rights review exists in the form of the regional human rights courts, which see themselves as trustees of the larger global human rights system. Judicial dialogue among the regional courts allows for informal, decentralized coordination among them. The European Court of Human Rights serves as a point of reference for the African and Inter-American systems, though these also cite each other. Transregional judicial dialogue establishes a rudimentary, informal and decentralized mechanism of coordination among bodies that exercise a review function in the multi-level system of international human rights.

A rationale for the legitimacy of the world legal order: Kant’s idea of a cosmopolitan will

AbstractIn this contribution I provide an interpretation of Stone Sweet’s and Ryan’s cosmopolitan legal order in conjunction with a certain reconstruction of the Kantian cosmopolitan rationale. Accordingly, I draw attention to the connection between the notion of a general (cosmopolitan) will in Kant’s reinterpretation of Rousseau and the role of the European Court of Human Rights (ECtHR) as an ‘interpreter’ of such will. I conclude by suggesting that the opportunity of extending the CLO also accounts for a variety of other poliarchical regimes that, taken as a whole, illustrate the landscapes of contemporary global constitutionalism.

Legal cosmopolitanism in international law

AbstractThis article concerns two aspects of Stone Sweet and Ryan’s theory of legal cosmopolitanism: (1) what the Kantian cosmopolitan legal order means for an international court; and (2) what it means for the holders of the rights that flow from the cosmopolitan legal order. The article interrogates the extent to which, in order to be considered a truly cosmopolitan legal order, the European Convention on Human Rights needs at times not only to make non-citizens free of rights equal to those of citizens, but also to give them stronger rights than those enjoyed by citizens. The article concludes by turning to the meaning of the European Convention beyond its European context. The European system for the protection of human rights and fundamental freedoms may fail or succeed, yet the enthusiasm that the most successful rights-protecting body in the world has created in bystanders, and the very fact that it came into being at all, prove that real progress is possible. From a Kantian perspective, this may well be its greatest accomplishment.

Dignity's Constitution: A Reply

I am deeply grateful to Nicole Roughan for overseeing this symposium and to Alon Harel, Stephen Riley, Julian Sempill, Alec Stone Sweet, and Ionna Tourkochoriti for their insightful engagements with Dimensions of Dignity and the unified theory of public law that it expounds. In this brief reply, I will not be able to respond to all of the important comments and concerns that they raise. Instead, I will focus on the most fundamental challenge (or set of challenges) raised by each contributor.

Who refers most? Institutional incentives and judicial participation in the preliminary ruling system

ABSTRACTBy enabling the Court of Justice to engage domestic judges, the preliminary ruling mechanism is widely recognised to have played a major role in European integration. Yet both the incentives and motivation to cooperate with the Court of Justice are believed to vary significantly across domestic courts. We explore how domestic courts differ in their referral behaviour depending on the position they occupy in the juridical hierarchy using a novel dataset, which extends, complements and corrects data initially collected by Stone Sweet and Brunell (1998. ‘The European Court and the national courts: a statistical analysis of preliminary references, 1961–95’, Journal of European Public Policy 5 (1): 66–97). We find that first instance courts pioneered the use of the preliminary ruling procedure, but that appellate and peak courts subsequently overtook them. We explain these shifts by the combined effect of institutional consolidation, organisational design and legal rules. We argue that resort to Article 267 TFEU was initially ‘accidental’ but became institutionalised as more courts submitted references. This, in turn, allowed the division of labour underpinning the organisation of national judiciaries to reshape referral dynamics.

Alec Stone Sweet and Florian Grisel, The Evolution of International Arbitration. Judicialization, Governance, Legitimacy.

Alec Stone Sweet and Florian Grisel, The Evolution of International Arbitration. Judicialization, Governance, Legitimacy.

Who Asks Most? Institutional Incentives and Referral Activity in the European Union Legal Order

By enabling the Court of Justice to engage domestic judges, the preliminary ruling mechanism is widely recognized to have played a major role in European integration. Yet both the incentives and motivation to cooperate with the Court of Justice are believed to vary significantly across domestic courts. We explore how domestic courts differ in their referral behaviour depending on the position they occupy in the juridical hierarchy using a novel dataset, which extends, complements and corrects data initially collected by Stone Sweet and Brunell (1998). We find that first instance courts pioneered the use of the preliminary ruling procedure, but that appellate and peak courts subsequently overtook them. We explain these shifts by the combined effect of institutional consolidation, organizational design and legal rules. We argue that resort to Article 267 TFEU was initially “accidental” but became institutionalised as more courts submitted references. This, in turn, allowed the division of labour underpinning the organization of national judiciaries to reshape referral dynamics.

The Evolution of International Arbitration. By ALEC STONE SWEET and FLORIAN GRISEL

The Evolution of International Arbitration. By ALEC STONE SWEET and FLORIAN GRISEL

Quality of Justice as an Institutional Game. Insights from the Italian Case

Abstract Introduction: Is soft power effective? Justice institutions have become a key topic in the international scientific and institutional agendas some decades ago, for different, and still interdependent reasons: the waves of democratizations (Pridham 2000), the increasing power of the judicial branch (Russell and O Brian 2001; Stone Sweet 2002), the transnationalisation of the processes of law making and law enforcement (Allard and Garapon 2005), the increasing demand for justice, dispute resolution, and rights enforcement (Epp 1998; OECD 2014, 2015). Despite the vast literature focusing on these phenomena, very little has been said on the impact that the recent development of the quality of justice mainstream (Fabri et al. 2005; Piana 2010) has on the relationship between the judicial and the executive branch. Notoriously, this relationship is one of the key dimensions for a constitutional democracy.

Constitutionalism and pluralism: A reply to Alec Stone Sweet

Constitutionalism and pluralism: A reply to Alec Stone Sweet

EU Law and Ireland: On the Measurement of Legal Evolutions through Judicial Activity

The preliminary reference mechanism is unequivocally the most successful tool of the Court of Justice which it has used to shape the constitutional evolution of EU law in the national courts. However, various proponents of leading studies of its use (eg Stone Sweet & Brunnell: 1995, Alter: 2001) have omitted in their datasets smaller Member States such as Ireland, on account of quantitative insignificance. Moreover, the comparison of preliminary reference data with infringement action data and population size often leads to inconclusive results and some data sets make similar omissions (Golub: 1996; Fenger & Broberg: 2011). Low rates of preliminary references from the Irish courts over approximately a 40-year period, low intervention rates in litigation before the Court of Justice and poor compliance rate of implementation of internal market legislation until recently has characterised the relationship between Ireland and EU law, suggesting distinct trends (Fahey: 2007, 2010). However, the Irish judiciary is overwhelmingly pro-communautaire in matters of EU law. Key legal doctrines such as supremacy and direct effect were embraced from the outset of membership. The paper considers methods for assessing the casestudy of Ireland, as a small-size Member State and assesses data since accession on preliminary references, as well as the operation of EU law in the Irish courts over a comparable period.

Alec Stone Sweet's “JuridicalCoup d'État” Revisited:Coups d'État, Revolutions,Grenzorgane, and Constituent Power

With his “highly suggestive,” “thought-provoking” paper,The Juridical Coup d'État and the Problem of Authority, Stone Sweet initiated an ongoing debate. The paper was the object of immediate comments by three eminent legal scholars and of a response to them by Stone Sweet. Most recently, Corrias has developed on its basis a theory of constituent power now. The present article will mostly deal with those aspects of Stone Sweet's paper on which Corrias has relied.

Regional Integration and the Evolution of the European Polity: On the Fiftieth Anniversary of the Journal of Common Market Studies

JCMS: Journal of Common Market StudiesVolume 50, Issue s1 p. 1-17 Regional Integration and the Evolution of the European Polity: On the Fiftieth Anniversary of the Journal of Common Market Studies WALTER MATTLI, Corresponding Author WALTER MATTLI University of Oxford Walter Mattli, St Johns College, Oxford University, Oxford, OX1 3JP. email walter.mattli@sjc.ox.ac.uk Alec Stone Sweet, Law School and Department of Political Science, Yale Law School, New Haven, CT 06520. email alec.sweet@yale.eduSearch for more papers by this authorALEC STONE SWEET, Corresponding Author ALEC STONE SWEET Yale University Law School and Department of Political Science, Yale University Walter Mattli, St Johns College, Oxford University, Oxford, OX1 3JP. email walter.mattli@sjc.ox.ac.uk Alec Stone Sweet, Law School and Department of Political Science, Yale Law School, New Haven, CT 06520. email alec.sweet@yale.eduSearch for more papers by this author WALTER MATTLI, Corresponding Author WALTER MATTLI University of Oxford Walter Mattli, St Johns College, Oxford University, Oxford, OX1 3JP. email walter.mattli@sjc.ox.ac.uk Alec Stone Sweet, Law School and Department of Political Science, Yale Law School, New Haven, CT 06520. email alec.sweet@yale.eduSearch for more papers by this authorALEC STONE SWEET, Corresponding Author ALEC STONE SWEET Yale University Law School and Department of Political Science, Yale University Walter Mattli, St Johns College, Oxford University, Oxford, OX1 3JP. email walter.mattli@sjc.ox.ac.uk Alec Stone Sweet, Law School and Department of Political Science, Yale Law School, New Haven, CT 06520. email alec.sweet@yale.eduSearch for more papers by this author First published: 09 February 2012 https://doi.org/10.1111/j.1468-5965.2011.02224.xCitations: 22Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume50, Issues1Special Issue: Guest Edited by Walter Mattli and Alec Stone SweetMarch 2012Pages 1-17 RelatedInformation

Understanding the Role of the European Court of Justice in European Integration

In 2008 we published an article finding evidence for political constraints on European Court of Justice (ECJ) decision making. Stone Sweet and Brunell (this issue) argue that our theoretical foundations are fundamentally flawed and that our empirical evidence supports neofunctionalism over intergovernmentalism “in a landslide.” We respectfully disagree with Stone Sweet and Brunell regarding both their conclusions about our theoretical arguments and what the empirical evidence demonstrates. We use this response to clarify our argument and to draw a clearer contrast between our and their perspective on the role the ECJ plays in European integration. Finally, we reevaluate their neofunctionalist hypotheses. Ultimately, we do not find support in the data for Stone Sweet and Brunell's empirical claims.

Don’t Throw Out the “Brussels Bubble” with the Bathwater: From EU Institutions to the Field of Eurocracy

The study-field of EU institutions, or the “Brussels complex” (according to the expression of Stone Sweet, Sandholtz, and Fligstein 2001), seems to have been so dominated for several decades by institutionalist scholars (old and neo) that most of the new sociologists of the European Union try to move out from this point to consider broader social spaces. Many different reasons clearly justify this turn. For instance, and as suggested in this symposium, the EU institutions' area cannot be completely confused with the power of the European Union; other more or less competitive transnational trends and the internal structure of member states are also important, and history and social mobilization can shape what happens with and within the European Union. It would thus be quite unsurprising if many political sociologists, rebuked by the epistemological distance and lack of interdisciplinary work between the social sciences and the dominant paradigms of EU studies, preferred to change the bath, so to speak. Changes are undoubtedly needed, but to move too quickly from studying the EU milieu may result in the baby (here the so-called Brussels Bubble) being thrown out with the bathwater. As I have suggested in a recent collective research (Georgakakis 2011, forthcoming; see also Georgakakis 2010), constructing EU institutions as a social space in a manner inspired by the sociology of Bourdieu remains an empirical and theoretical challenge. On the European side of the European studies, there have been many calls to use Bourdieusan sociology for understanding EU processes and milieus (Guiraudon 2000; Favell 2006; Kauppi 2003, 2005; Cohen, Dezalay, and Marchetti 2007; Bigo 2007; Vauchez 2008; Georgakakis 2002, Georgakakis 2009; Georgakakis and Weisben 2010). The need to develop the field perspective has also been noted by US scholars (Stone Sweet et …

The Legal Theory of the Juridical Coup: Constituent Power Now

In a thought-provoking article, Alec Stone Sweet put forward a problem he called the juridical Coup d'État. His work was the opening of a debate to which Neil Walker, Wojciech Sadurski and Gianluigi Palombella contributed. In a subsequent essay, Stone Sweet responded to their comments. In this article, I would like to sketch this debate and explore its significance for legal theory. It is my hypothesis that the problem of the juridical coup is closely connected with the relationship between constituent (constituting) and constituted (constitutional) power. Moreover, the juridical coup shows in an exemplary way how this relationship should be understood. Before addressing the problem in these terms (Section C), analyzing an additional example of a juridical coup in EU law (Section D) and developing my own position vis-à-vis the different contributors (Section E), in the following section, I will give an overview of the argument of Stone Sweet. Taking into account the wealth of issues raised by him, I will concentrate on those aspects of his essay that are of most interest from a legal-philosophical point of view. Thus, the first question to be answered is: What are we to understand under a Juridical Coup d'État and what is its theoretical importance?