Bulwarks of Democracy: Domestic Courts and Informal International Instruments

Abstract Informal international instruments increasingly influence domestic court rulings by serving as authoritative materials to interpret uncertain legal norms. This poses a significant democratic problem because the instruments originate from undemocratic international institutions and bypass parliamentary oversight. This Article challenges the established doctrinal description of the interpretative relevance of legally non-binding instruments by reimagining it through Niklas Luhmann’s systems theoretic description of law as communication. The approach reveals a decision-making mechanism that enables democratically suspect political influence to be exercised through the legal system. To address this systemic vulnerability, the Article argues that domestic courts can act as bulwarks of democracy when interpreting legal norms with applicable informal instruments. Drawing upon novel insights from Jürgen Habermas’s discursive theory of law and democracy and Martti Koskenniemi’s culture of formalism, the Article argues that a democratic legal culture—emerging from a democratic mindset held by judges who visualize themselves in the place of others—can help mitigate the democratic deficit of informal international instruments by bringing them into contact with discursive democratic requirements. Noting that courts are themselves capable of democratically questionable action, the Article finds that the democratic legal culture can also make legal systems more resilient to democratic backsliding.