Publication details
In Courts We Rust: Legal Justification and the Quiet Work of Democratic Erosion
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| Year of publication | 2025 |
| Type | Appeared in Conference without Proceedings |
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| Description | Forty years after the publication of Hegemony and Socialist Strategy (Laclau & Mouffe, 1985), this paper examines how courts operate within ongoing political struggles, rather than standing above them. Drawing on discourse theory and recent scholarship on judicial behavior, it focuses on the interpretive techniques judges use to justify decisions that often shape the political meaning of rights and legality. Courts are frequently seen as defenders of democracy, particularly in contexts of democratic backsliding. In some cases, they do act as institutional checks on executive power (Šipulová, 2024). But the same institutional tools can also be used to resist democratic reform, especially when judicial independence is invoked by judges tied to illiberal networks or legacy appointments (Šipulová, 2024; Graver, 2018). Resistance in these situations tends to protect entrenched authority rather than challenge it. The analysis concentrates on specific rhetorical strategies used in legal reasoning, such as proportionality, reference to international norms, or formalist appeals to legal tradition. These moves often present decisions as objective or inevitable, masking the underlying ideological choices. As Mańko (2021) suggests, judges operate in a space of relative sovereignty, where interpretation is constrained but not predetermined, and always situated within broader discursive conditions. Judicial authority also plays a role in shifting political debates into legal frameworks. In many systems, courts have increasingly taken over unresolved political conflicts by translating them into constitutional rights language. Hirschl (2004) describes this dynamic as juristocracy: a transfer of political authority to judicial institutions. As Machado (2014) notes, courts often become the venue where politically inarticulable demands are reframed in legal terms, with ambivalent effects on democratic participation. Rather than treating judicial decision-making as a purely legal act, the paper highlights its role in the production and stabilization of hegemonic meanings. Understanding these judicial practices is essential not only for analyzing institutional dynamics, but also for assessing how the ethos of constitutional democracy is reshaped through legal discourse itself. |