Book contents
- Judging under Constraint
- Studies on International Courts and Tribunals
- Judging under Constraint
- Copyright page
- Dedication
- Contents
- Figures
- Tables
- Acknowledgments
- Cited Legal Texts
- Abbreviations
- 1 Introduction
- 2 Judicial Deference and the Strategic Space of International Courts
- 3 Formal Independence of International Courts
- 4 The East African Court of Justice
- 5 The Caribbean Court of Justice
- 6 The African Court on Human and Peoples’ Rights
- 7 Conclusion
- Appendix
- References
- Index
2 - Judicial Deference and the Strategic Space of International Courts
Published online by Cambridge University Press: 27 October 2025
Book contents
- Judging under Constraint
- Studies on International Courts and Tribunals
- Judging under Constraint
- Copyright page
- Dedication
- Contents
- Figures
- Tables
- Acknowledgments
- Cited Legal Texts
- Abbreviations
- 1 Introduction
- 2 Judicial Deference and the Strategic Space of International Courts
- 3 Formal Independence of International Courts
- 4 The East African Court of Justice
- 5 The Caribbean Court of Justice
- 6 The African Court on Human and Peoples’ Rights
- 7 Conclusion
- Appendix
- References
- Index
Summary
This chapter conceptualizes deference as an international court’s acceptance of the state’s exercise of authority. It presents a method for measuring deference that combines case outcomes, interpretation, and remedial orders. The chapter introduces a novel theoretical account of deference. This explanation centers on a court’s strategic space, or the range of possible decisions that will satisfy a court’s legal and political imperatives, and argues that two political factors determine this strategic space: formal independence and political fragmentation. The former concerns the formal rules that safeguard independence while the latter refers to the heterogeneity of states’ preferences. These two constraints affect deference by way of their impact on a court’s legitimacy and the feasibility and credibility of state resistance. The theoretical account also considers the role of persuasive argumentation, public legitimation, and past resistance. This explanation is distinguished from accounts that emphasize judicial support networks and political norms and legal culture.
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- Judging under ConstraintThe Politics of Deference by International Courts, pp. 22 - 61Publisher: Cambridge University PressPrint publication year: 2025
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