B. The Legal Relevance of Informal International Instruments

This section utilizes Niklas Luhmann’s systems theory to reimagine the established doctrinal description of the legal relevance of informal international instruments to provide a nuanced description of the social dynamics behind their legal effects.Footnote ¹⁰ Systems theory deviates in many respects from the intuitive ways lawyers think about law. Thus, to facilitate understanding of the arguments made in this section, I first explain the basic features of systems theory before illustrating how the theory can be used to explain the emergence of the legal relevance of informal international instruments. At the end of the section, some illustrative examples are provided which suggest a mechanism through which external political influence can seep into domestic legal systems. To end the section, I argue that this is problematic from the perspective of democratic legitimacy requirements, which sets the stage for discussion on courts and democracy in Section C.

Before the systems theoretic explanation, however, we need a description of how legal doctrine usually processes legally non-binding materials. From a doctrinal point of view, the task of a legal decision-maker is to find or construe legal norms. Because legal rules are rarely unambiguous, the decision-maker must engage in interpretation for which it needs external evidence of law. The legal relevance of legally non-binding sources is thus understood as evincing the existence of law or guiding the decision-maker in the interpretation of law.Footnote ¹¹ Such legal relevance of non-binding materials is treated as a given by doctrine. Courts use non-binding sources to interpret law, and because the task of doctrine is to interpret and systematize law—including decisions and interpretations by courts—it suffices to treat the legal relevance of non-binding instruments as a social fact from which to draw normative evidence.

The doctrinal description fails to examine the functional demands that bring about the legal relevance of non-binding sources. This results from doctrine’s focus on norms rather than the social processes behind them. Doctrine also ignores questions of non-legal justification as it usually draws upon legal positivism. A decision applying a non-binding source may be criticized for unconvincing reasoning or for creating conflicts with other norms, but not for conflicting with requirements such as democracy which it considers extra-legal.Footnote ¹² With a description of the social mechanisms through which the legal relevance of informal instruments emerges, systems theory offers a more nuanced foundation for the legitimacy discussion in Section C than could be provided with a doctrinal description.

We can now move on to discuss how systems theory helps us understand the legal relevance of informal international instruments. Systems theory’s explanatory benefits emerge from its analysis of law as pure communication. When observed as communication, law appears as a social system with one function: to distinguish legal from illegal. Law is identified as the communications which apply the binary code legal and illegal.Footnote ¹³ By its function and code the legal system is differentiated from other major social systems such as economy and politics which have their own functions and codes. The society emerges as a system consisting of functional subsystems with each operating in an environment consisting of other subsystems.Footnote ¹⁴ In systems theory, society is not understood as organized interaction between individuals but as the totality of all communications.Footnote ¹⁵ The legal system then consists of the totality of legal communications, not of judges and lawyers or their interactions around legal rules.

Systems theory argues that systems are operationally closed and autopoietic. The meanings of these concepts can be explained by illustrating how social systems are typically understood. The conventional understanding is that social systems are open with inputs and outputs. Open systems interact with each other through series of actions. For example, the political system produces legal statutes which are enforced by the administration. The judiciary interprets the law as an expression of the will of the legislator and applies it to particular cases. Talcott Parsons is a prominent figure of open systems thinking.Footnote ¹⁶

Operational closure posits that systems cannot directly interact with each other in this way. Systems operate in their own terms, and these terms emerge from the binary codes of the systems. For example, a statute produced by the political system can only become meaningful in the legal system when communicated in legal terms. The legal system does not process legislation as an expression of the will of the legislator but as a communication about legality. The function of the legal system is not to implement political programs, “no matter how much legal decision may be guided by politically desirable consequences.”Footnote ¹⁷ According to Luhmann, theories arguing to the contrary “founder on the internal culture, the mode of argument operating within the legal system” that is geared towards distinguishing legal from illegal.Footnote ¹⁸ The concept of autopoiesis posits that the legal system maintains itself recursively through its own operations which go back to and anticipate other legal communications.Footnote ¹⁹

The introduction of the idea of autopoiesis into systems theory created a problem for Luhmann, however. If social systems are closed, operate in their own terms, and cannot directly steer each other, how can it be explained that politics and law often seem to work towards shared objectives?

Systems theory argues that although social systems are operationally closed, they are also cognitively open to each other. This means that systems are aware and can respond to their environments. The responses can only happen through the operations of the system itself. For example, the legal system may react to changes in the political climate, but it can only do so with reference to questions of legality. Similarly, the political system may observe conflicts between different social systems and try to address them with collectively binding decisions. For an example, investments in fossil fuels may produce negative externalities to health and the political system may try to resolve the conflict between the economic and health systems by issuing a statute on reducing the burning of fossil fuels or subsidizing renewable energy sources.Footnote ²⁰ To the legal system the statute is a communication about the potential illegality of certain conducts.

Such responses are possible because social systems are structurally coupled with each other. Statutes participate both in the political and the legal systems. In the political system, a statute is an expression of policies and power while in the legal system it is a directive program of what should be considered legal or illegal.Footnote ²¹ In their basic form, these programs are understood as conditional in that they operate on an if-then basis.Footnote ²² This is familiar to the way in which lawyers are trained to think: when conduct X has transpired, statute Y stipulates that it must be determined illegal.Footnote ²³

A short excursion to a more conventional description is in place to put these theoretical considerations into context. Although Luhmann argues that systems have their own cognitions, the cognitive link between systems can be explained by noting how the legislator must take notice of the premises of judicial decision-making before enacting laws. Similarly, judges must try to recognize the intentions of the legislator and apply the law according to the guidance provided by legislation.Footnote ²⁴ These ideas and the minds thinking of them are necessary for the existence of social systems, but they do not become part of the communications that are studied by systems theory. Whatever the individual thinks of when they trigger a communication may be completely irrelevant to the meaning that another individual attributes to the communication. I may bring up an agreement to remind someone of a due payment, but they may interpret the communication as a threat of legal action. Thus, the legal system itself is cognitively open because legal communications can also be given other, non-legal meanings. Legislation and contracts, for example, act as contact zones of the legal system to the political and economic systems respectively.Footnote ²⁵ This is the essence of the argument that although the legal system is closed and autopoietic in its operations, it is also structurally coupled with other systems.

The basic concepts of systems theory—autopoiesis, operational closure, cognitive openness, and structural coupling—have now been outlined. We can then ask, are informal international instruments legal communications and thus part of the legal system? The answer is that they can be, as any assertation for or against the legality of something is a legal communication. An utterance that one must leave someone’s property is a legal communication as it suggests that there is a legal construct known as a property and the right to prohibit intrusion which can be legally enforced.Footnote ²⁶ Similarly, an informal international instrument is a legal communication if it makes a direct assertation about the legality of something. The instrument can also become legally relevant if it is used in a legal argument to make an assertion about legality with a legal decision in mind. Even explicitly non-binding agreements may be used in legal argumentation in this way and thus be operationalized in the legal system. However, it is also possible to report about legal matters in the media or simulate legal decision-making for educational purposes without them becoming internal operations of the legal system, as the communications do not aim at legal decisions.Footnote ²⁷

As this implies, not all legal communications are alike. Legal communications are pointed towards the determination of legality in legal decisions. Legal decisions include statutes, court decisions, contracts, official registrations, and so on.Footnote ²⁸ Only decisions can change the situation of law. Every other legal communication is a non-decision. Non-decisions cannot “move” the law, so to speak, but they can argue where the law should be moving, that is, what the legal decisions should be.

To determine questions of legality, something or someone must decide. That decision-maker is primarily the courts. This makes court decisions central to the legal system and to the legal relevance of informal international instruments. Accordingly, the rest of the section will focus on decision-making by courts. However, before we can embark on discussing courts in more detail, we need the final piece to the puzzle that illustrates the legal relevance of informal international instruments: the issue of legal validity.

As in doctrinal description, in systems theory non-binding sources are not considered to fulfil the validity requirement of law. In systems theory legal validity is not used to identify law, however. Instead, it is observed from the outside as a unifying symbol that the legal system uses to link legal communications to one another.Footnote ²⁹ A successful legal communication bases its claim on the validity of other legal communications. For example, claiming that an informal international instrument creates legal rights and obligations would not be successful in courts. This notion can be confirmed by looking at courts, as they do not base their decisions on instruments that are considered legally non-binding.Footnote ³⁰

But the legal relevance of informal international instruments does not depend on legal validity. As illustrated, a prima facie political communication may also be communicated or understood in legal terms. Changes in the political environment may make the legal system react and move into new areas. An issue that was not a legal matter yesterday may become juridified tomorrow. The autopoiesis of the legal system does not regulate what kind of legal structures may developed as result of the legal system’s structural coupling with other systems.Footnote ³¹ In fact, external irritations and the evolving of society may create conditions where non-binding instruments can determine court decisions and thus gain validity in an indirect way.

The rest of the Section centers on illustrating this idea of legal relevance of informal international instruments as their indirect validation by courts. The discussion is structured around the triad of obligation, freedom, and limitations of judicial decision-making.Footnote ³² Courts have the obligation to adjudicate cases that are brought to them. They generally cannot resort to non liquet to refuse judgment when they are unable to reasonably find the law.Footnote ³³ This is known as the prohibition of the denial of justice.Footnote ³⁴

Courts also have freedom to decide. If the courts did not have the creative freedom to construct norms through interpretation, they would not be able to fulfil their function of deciding cases when the law is not clear. Any gap in the written law would render decision-making impossible. This would overburden the political system with having to produce impossibly detailed and pervasive statutory law. This is why a conception of developing legal positivism requires not only understanding of the legislator but also the judiciary which fills gaps and clarifies ambiguities in law.Footnote ³⁵

There are limitations to the creative freedom. Foremost, courts are constrained by the symbol of validity. There must be a valid legal communication on which to ground a decision. Courts cannot begin proceedings by themselves which limits what they can decide.Footnote ³⁶ Courts are also limited by justice as an internal standard of the system in the sense that they must evaluate the consequences of their decisions.Footnote ³⁷ At minimum, the internal standard of justice requires that like cases are treated alike.Footnote ³⁸ But because there are no precedents in hard cases, courts must “create,” “postulate,” or “assume” applicable law which can be argued to necessarily lead to juridification of moral norms.Footnote ³⁹ Also, some structures have emerged to relief courts’ pressure of having to make decisions. Procedural rules such as rules of standing and jurisdiction, or the concept of de minimis non curat lex allow courts not to judge some matters.Footnote ⁴⁰ Legal principles have arguably emerged to allow courts to adjudicate cases where the written law does not offer sufficient guidance.Footnote ⁴¹

It is in the moments of instability when courts must decide, have the freedom to construct norms, must reflect on the consequences of their decisions, but are insufficiently guided by legislation that new legal structures can emerge. In other words, when the political system has not provided sufficient programs for the legal system to decide legal cases, a possibility for other sources of political power to seep into legal decisions emerges.

Some examples to concretize this idea. I first illustrate the cases in common terms and then reflect on them from a systems theoretic perspective. Consider the Milieudefensie v. Royal Dutch Shell ruling by the District Court of the Hague which gave significant weight to an informal international instrument in determining the substance of climate change obligations of the Royal Dutch Shell Company. This was achieved under the unwritten standard of due care in Book 6 Article 162 of the Dutch Civil Code which orders for repairing damage resulting from tortious acts.Footnote ⁴² When the court had determined that the unwritten standard of due care applied to the case, the court had to construct substance for it. The court first determined that Article 2—on right to life—and Article 8—on right to respect for private and family life—of the European Convention on Human Rights offer protection against climate change effects and were within the coverage of the unwritten standard.Footnote ⁴³ Because the articles themselves are open, and because the European Convention on Human Rights only obliges states, the court needed additional materials to determine what kind of concrete obligations the standard of due care could lay out on non-state actors such as private companies.

For this, the court utilized the UN Guiding Principles on Business and Human Rights which is an explicitly non-binding instrument aiming to enhance the promotion and respect of human rights in business operations.Footnote ⁴⁴ The court argued that the instrument is “an authoritative and internationally endorsed ‘soft law’ instrument,” “in line with the content of other, widely accepted soft law instruments,” and reflective of “current insights.”Footnote ⁴⁵ Also, the court noted that “the European Commission has expected European businesses to meet their responsibilities to respect human rights” as formulated in the Guiding Principles.Footnote ⁴⁶ The instrument was authoritative enough to render the fact that Royal Dutch Shell had explicitly supported it irrelevant.Footnote ⁴⁷ As a consequence, the court determined that the instrument was “suitable as a guideline in the interpretation of the unwritten standard of care.”Footnote ⁴⁸

Having found that the informal international instrument established climate change obligations under Dutch law, the court decided that Royal Dutch Shell had to achieve a net 45% reduction in the volume of its CO2 emissions by the end 2030, relative to 2019 levels.Footnote ⁴⁹ The Hague Court of Appeal quashed this judgment in 2024, arguing that it had “not been established in the precent proceedings that downsizing the resale activities of Shell Trading will lead to a reduction in CO2 emissions.”Footnote ⁵⁰ However, the Hague Court of Appeal agreed that companies have the obligation to combat climate change and argued that this follows precisely from informal international instruments such as the UN Guiding Principles and the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, even when binding law does not lay out such obligations.Footnote ⁵¹

Similar authority can be exercised by informal instruments in other legal systems as well. In Canada Ltée v. Hudson the Canadian Supreme Court used the non-binding Bergen Ministerial Declaration to determine the contents of the precautionary principle used in the interpretation of a local by-law.Footnote ⁵² This specific example is interesting in two respects. First, legal principles such as the precautionary principle are shared between different levels of governance from the international to local. Thus, the power to influence the contents of legal principles through informal means suggests a possibility to exercise political influence that permeates systems globally. Second, the norm in this case emerged from a declaration,Footnote ⁵³ which is even more informal than instruments produced by international organizations such as the UN Guiding Principles on Business and Human Rights, or non-binding agreements between states. As a final example of the utilization of informal instruments in this way, the European Court of Human Rights uses legally non-binding sources regularly to give substance to provisions of the European Convention on Human Rights as noted by the claimants in Milieudefensie,Footnote ⁵⁴ which produces domestic legal effects.

The examples should not be read as exposing direct and intentional “injections” of international political authority into domestic legal systems. It is unlikely that the authors of the UN Guiding Principles on Business and Human Rights intended for the instrument to be used to impose climate change obligations on companies. It is neither likely that the District Court of the Hague wanted specifically to operationalize the UN Guiding Principles on Business and Human Rights in the Dutch legal system. Instead, the Guiding Principles was presented to the court by the claimants who argued in the summons that the informal international instrument establishes binding obligations when it is used to give substance to legal norms of domestic and international law.Footnote ⁵⁵

From a systems perspective, it was the communication of the legal summons which initially made the informal instrument part of the legal system by arguing that the instrument had an effect on the legality of conduct by private companies in the Netherlands. The District Court of the Hague validated the claim with its decision and made the law move to a new area. This decision created a valid link for future legal communications. While not obliged to do so, the Hague Court of Appeal validated the decisions further and created another communication to which future legal communications could link to.

This implies the existence of an indirect influence mechanism where international authority is used to put on offer, so to speak, materials to be used in legal decision-making by courts when the suitable case emerges. While this offering of authoritative materials can be purposeful, such intentions are hard to prove. Also, one should be wary of treating international rule-makers as a homogenous group with shared hegemonic intentions. The aims of states and international organizations are diverse, complex, and often in conflict with each other. But international governance can be biased, and it often benefits the powerful. Chimni, for example, has argued that the increasingly powerful networks of international institutions often advance the interests of an “emerging transnational capitalist class.”Footnote ⁵⁶ The relation between international authority and domestic legal discourses should be viewed accordingly in the context of power.

To set up final remarks about informal international instruments before we move on to discuss questions of democracy and legitimacy in more detail in the following section, consider the following passage by Luhmann: “Invalid norms mean nothing to the system. This is most clearly demonstrated by the fact that nobody would even try to apply invalid norms; nobody would argue that certain legal norms are invalid but they help to win the case nevertheless.”Footnote ⁵⁷

Luhmann is right to argue that nobody would apply non-valid norms alone to try to win court cases. Yet the statement that non-valid norms are meaninglessness and that they cannot help win cases seem to contradict what we have just discussed. Luhmann’s point, however, is that no one would argue that legal norms can be non-valid, not that non-valid norms cannot be used in legal argumentation. Political and moral norms need to be juridified and operationalized by attaching them to a valid norm to make a successful legal claim. Accordingly, Luhmann continues:

Political power may irritate an expansion of the boundaries of law when valid law is open in substance. The unwritten standard applied in Milieudefensie is an extreme example of a binding legal norm that is so open that it is little more than its validity. Such rules are mere containers for which substance is given as the need comes.Footnote ⁵⁹ Because the legal system is expected to decide like cases alike, new substances constructed for such containers may become entrenched in the legal system. A decision opens the door to further decisions.Footnote ⁶⁰ The points where informal sources may seep into legal systems are practically endless because of the general indeterminacy of law. The deciding factor then is the authority that courts confer to informal instruments. By conferring authority to informal instruments, law may be “yielding to political pressure and seeping into previously unregulated areas in ever more increasing volume.”Footnote ⁶¹

The implications of this are alarming if we pull away from the perspective of a system theorist. Not because a court in the Netherlands decided that big oil companies should bear responsibility for climate change and its adverse effects on human health, but because it makes one wonder what guarantees there are that the same social structures do not result in less desirable decisions in domestic legal systems? Also, although societies are increasingly global, people still mainly base their normative expectations on the domestic political and legal structures. People expect that what the courts decide is sufficiently linked with the domestic law-making authority that they consider to be democratically legitimate. The influence of informal international instruments circumvents both the legitimate law-making process and parliamentary oversight over international matters. In this light, every tangible domestic effect of an informal international instrument signals a shift of political power from the democratic state to international institutions.

As the root of the problem lies in the undemocratic nature of international institutions, it would make sense to focus on enhancing their democratic qualities.Footnote ⁶² But the legal effects discussed in this section beg the question of how the legal system may address the problem that it seemingly contributes to creating? Whereas systems theory discussed in this section has analyzed law as a system of communication that is independent of constitutional structures and individual human beings, the next section reintroduces more traditional structures of the constitutional state and the individual who is causally necessary for the emergence of legal communication. With this move, we can ask the question: are courts simply enablers of international authority, or can they protect democracy from unjustified political irritations?

A short summary of this section is in place before we move on to answer the question. Systems theoretic analysis reveals how informal international instruments gain their legal relevance by being communicated in legal terms and by being indirectly validated by courts which use them to give substance to valid legal norms. The functional analysis of law as communication reveals the central role that courts have in figuring out the ultimate question of law, that is, what is legal and what is not. The courts cannot escape this task or otherwise the legal system fails to fulfil its function of stabilizing normative expectations in society and depoliticizing decisions. This applies to all cases, including those where the legislation is not clear on the question of what should be legal. It is in these moments when informal instruments can be effectively communicated as legally relevant and where courts may give them the authority to determine what the substance of valid legal norms should be. This way international political communications can be juridified to influence what future legal communications will be considered valid by the legal system. The informal instruments bring about reactions in the legal system and make it move into new areas. An issue that was politics yesterday may be juridified tomorrow; all that is needed is a legal decision which validates the juridification.

C. Bulwarks of Democracy

This section argues that courts can mitigate the democratic deficit of informal international instruments by acting as bulwarks of democracy. The metaphorical bulwark should be set up in two respects: by ensuring respect for the democratic law-making process and by protecting individual liberties from the influence of political processes that the individuals have not sufficiently influenced or participated in. To detail this argument, the section first discusses how courts are usually understood to protect democracy. Utilizing Jürgen Habermas’s discursive theory of law and democracy, the section then details the requirements for democratically justifiable adjudication. Finally, drawing upon the democratic requirements and Martti Koskenniemi’s concept of culture of formalism, the section illustrates a democratic mindset that individual judges should hold to resist exercises of power that do not meet the requirements of democratic justifiability.

The suggestion that courts can defend democracy is usually made within the context of the constitutional state. Courts are presumed to keep other state institutions in check and to protect liberties from being encroached. Courts can keep the executive branch accountable by checking that the executive’s actions do not overstep its mandate.Footnote ⁶³ Courts can also support the democratic process, a need which results from two defects. First, the democratic process can produce decisions which are detrimental to itself. It may abolish itself or transfer its powers to another institution to the same effect. Second, the democratic process can be abused. Because direct consensus—agreement by all—is not possible on a complete and continuing basis, democracies have generally adopted two features, majoritarian decision-making and representation of the people. Both are threatened by degeneration: majority democracy can deteriorate into a “tyranny of the majority” undermining democratic participation of minorities whereas representative democracy can degenerate into an “iron law of oligarchy” with little regard to whom the parliamentarians are supposed to represent.Footnote ⁶⁴

Courts can balance the defects of the democratic process and the executive’s susceptibility to overstepping its mandate by upholding the rule of law. Courts are supposed to make sure that nothing and no one is above the law of the community, often embodied by a constitution. While all courts must oversee that the constitution is observed, it is particularly for the highest and constitutional courts to check that legislative acts and executive orders are constitutional.Footnote ⁶⁵ With its power of review, the judiciary can stabilize democracies by incentivizing more prudent political action.Footnote ⁶⁶ The rule of law and the effective protection of rights can also offer democracies with points of unity if the democratic process itself causes more social discord than cohesion.

It is thus common to turn to courts as the last line of defense of law and democracy. Courts should not be idealized in this way, however, as they can act in questionable ways and even contribute to autocratization. Also, idealization sends the other branches of state the message that they can duck their responsibility for upholding democracy by passing it to the judiciary.Footnote ⁶⁷ The potential for courts to contribute to democratic backsliding is discussed at the end of this section.Footnote ⁶⁸ But considering the potential of the judiciary to protect democracy, it is reasonable to explore what would be required from courts to act as bulwarks against power external to the constitutional state, especially as the courts are seemingly responsible for validating the influence of external political power as illustrated in Section B.

In the context of informal international instruments, the courts’ role shifts from keeping other state institutions in check to ensuring respect for the democratic process as the legitimate form of law-making. This is because courts are not only protectors of democracy but also constrained by it in the sense that the law applied or constructed by courts should emerge from or reflect the will of the democratic legislator. Courts should not be tasked with the systematic checking of informal international instruments akin to how the parliaments scrutinize international treaties, however. The bulwark must emerge only in particular cases that are brought to the courts to keep the power of the judiciary itself in check, because the power to initiate review of international political commitments would delegate significant foreign policy power to the judiciary. What is called for instead is a commitment rooted in democratic ideals materializing in cases where the courts must construct legal norms and need to decide what materials to use.

Formulating what the commitment entails requires a proposition of what judges should take on a commitment towards. A description of legitimate law-making is needed together with an account of how it relates to the practices of the legal community. The legal community in this respect is understood narrowly with a particular focus on judges for their central role as formal decision-makers.

In democracies law-making is primarily embodied in the formal legislative process. The legislative process is not, however, necessarily congruent with democracy. Legal positivism derives from the social fact that valid law is created by an authority. For pure positivism it is theoretically irrelevant who or what the authority is as long as the legal norms are produced by a competent authority.Footnote ⁶⁹ In contrast, in democratic approaches valid law must have a link with the people, the popular sovereign, or the free formation of opinions by active citizens participating in public affairs.Footnote ⁷⁰ The validity of law is compounded with a normative notion of democracy. To a critical positivist the democratic convictions of society should converge with the internal principles of justification for individual legal norms as practiced by a legal community. Based on its legal culture and deeper structures, the legal community determines the validity of norms through justification principles that should derive from the democratic ideals of the community.Footnote ⁷¹

Therefore, to argue that legitimate law can only be produced democratically is to say that the legal system should align its practices, culture, and rational foundations of identifying and constructing legal norms to respect the democratic process of law-making. But considering the defects of the majoritarian and representative processes, sufficient connection with the public will and opinion formation emerges as necessary for law-making to be properly democratic. In other words, the formal decisions of the legislator must have a connection with the will and opinions of the citizens. The need for an enhanced connection is emphasized by the modern globalized world where political decision-making has moved away from the local and domestic levels to international and global networks. The previous section illustrated one aspect of this general trend of democratic erosion, where decisions that can affect people’s lives are produced by far away institutions without proper domestic checks.

To address democratic erosion in general, Habermas has suggested a reconstruction of modern democracy by supplying the formal law-making process with a flow of public opinions and will from informal public debates. Habermas’s model is mainly based on three notions: the discourse principle, the democratic principle, and the public sphere. The discourse principle holds that “[j]ust those action norms are valid to which all possibly affected persons could agree as participants in rational discourses.”Footnote ⁷² The democratic principle deriving from the discourse principle posits that “only those statutes may claim legitimacy that can meet with the assent … of all citizens in a discursive process of legislation that in turn has been legally constituted.”Footnote ⁷³ The requirements of agreement and affectedness are intended to synthesize models of democracy which either emphasize active citizenship in public political decision-making or the protection of liberal freedoms from unjustly constraining government power.Footnote ⁷⁴ Habermas’s democratic model is based on the production of norms that the affected persons could assent to if they participated in rational discourse on them. The model thus does not require actual participation by all possibly affected people. Instead, it requires that the participation of citizens in political opinion- and will-formation processes can effectively influence what is considered to be the public opinion, which then should influence the laws and policies to which the citizens are subject.Footnote ⁷⁵

This is where the public sphere is essential for Habermas’s model. The public sphere is understood as “a realm of our social life in which something approaching public opinion can be formed.”Footnote ⁷⁶ Democracy is not manifested only in the parliament and elections, instead, “[p]arliamentary opinion- and will-formation must remain anchored in the informal streams of communication emerging from public spheres that are open to all political parties, associations, and citizens.”Footnote ⁷⁷ The informally flowing communicative power exercised through the public sphere prepares and feeds opinions into the legally established formal proceedings. The public sphere operates to hold political power accountable and informed by public political discourses of free citizens. Habermas argues that “all political power derives from the communicative power of citizens.”Footnote ⁷⁸ The communicative power “unleashes” the plurality of interests and opinions which are at risk of being suppressed by majority processes in formal democratic institutions.Footnote ⁷⁹

The public sphere requires “specific means for transmitting information and influencing those who receive it.”Footnote ⁸⁰ Thus the extent to which different media can effectively and justly transmit information between the informal and formal political discourses is crucial. The challenges of the modern age for the viability of the public sphere—including social media and communication by generative artificial intelligence—are evident, but the scope and focus of this Article do not permit an excursion into them. The key points for the present discussion are that the credibility of democracy requires public discourses and support for them from formal state institutions. The public sphere is where citizens largely contribute to public opinion formation and where their agency is expanded beyond voting.

I argue that adjudication must also draw from the informal flows of public opinion and will formation for its democratic justification. This results from the fact that practically all legal norms are indeterminate and require interpretation. Particularly in the interpretation of open norms, courts must use external materials, and the argument here is that these interpretations must also draw upon the discursive requirements of democracy.

What exactly are the implications of the discursive model for legal decision-making in courts? Habermas is adamant that courts are engaged in discourses of application instead of discourses of justification. Discourses of justification are reserved for the legislator and concern arguing on what norms should be valid and binding for a community. The courts should only deliberate on the application of already validated norms, that is, what norm is appropriate to apply to a given case.Footnote ⁸¹ Because only the democratic legislator that is sufficiently linked with the public sphere can produce legitimate law, it is the only state institution which should deliberate on what norms can be rationally justified as constraining in the society.Footnote ⁸²

However, as this Article has illustrated, courts are necessarily engaged in law-creation because of their obligation to adjudicate and the indeterminacy of legislation. Habermas also acknowledges this and notes that in gray areas “juristic discourses of application must be visibly supplemented by elements taken from discourses of justification.”Footnote ⁸³ Habermas suggests another, a legal public sphere to work out the contradiction resulting from the courts’ law-creation:

As the public sphere does with political discourse, the legal public sphere extends juristic discourse to also comprise the public who can engage in deliberating, criticizing, and even influencing legal decisions. Much as in systems theory, the legal system is extended to not only cover communication by the legal community in the narrow sense. Instead, all communication concerning what should be legal or illegal becomes part of the totality of legal communications which are relevant for legal decision-making. The difference is that the discursive model takes a normative position on the matter. Discourse emerging from the public not only may but should contribute to determining legal decisions.

It is difficult to see, however, how court proceedings could be framed in discursive terms. The proceedings where two parties argue against each other are not deliberative processes where the parties together with the judge engage in rational discourse with the aim of finding the truth. Thus, judges can merely simulate discourse in their decision-making.Footnote ⁸⁵ In this simulation the judge should reflect on the implications of their decisions not only on the parties, but also on the public. For example, where courts must interpret ambiguous legal norms and where useful material could be drawn from informal international sources, courts should reflect on the consequences of doing so on individual liberties and for the integrity of the democratic process. While judges try to interpret what the will of the legislator is, they should also simulate discourses with the view of reaching decisions that the community could agree on if it were to engage in rational discourse on them. This is particularly the case when the legislator’s will cannot be uncovered from the wording of a statute or legislative drafting materials.

The simulated discourse takes place in the minds of the judges and so they must rely on their cognitive capacities and prior learning as members of the legal community. Accordingly, democracy-supporting decision-making requires foremost a democratic mindset from individual judges and a legal culture that institutionalizes the democratically grounded legal practices.

The crucial question then is what form should the legal culture take to produce democratically justifiable decisions? The culture of formalism by Koskenniemi is a promising approach to take as a model in this regard. Mainly discussing legal culture in the context of international law, Koskenniemi defines the culture of formalism “as a culture of resistance to power, a social practice of accountability, openness, and equality whose status cannot be reduced to the political positions of any one of the parties whose claims are treated within it.”Footnote ⁸⁶ Such culture can make “a claim for universality that may be able to resist the pull towards imperialism.”Footnote ⁸⁷ Koskenniemi contrasts the culture of formalism with a “culture of dynamism” which sees law as a tool or hindrance to politics; the form of law or formal procedures do not matter in the culture of dynamism if they do not work towards predetermined political goals.Footnote ⁸⁸

The culture of formalism insists that material preferences must be justified “by reference to standards that are independent from their particular positions or interests.”Footnote ⁸⁹ It pursues to induce every particularity of human experience and to remain open to all voices in legal argumentation.Footnote ⁹⁰

The equal consideration of all claims in legal decision-making pinpoints the culture of formalism as a democratic culture. Koskenniemi explicitly contextualizes the value of culture of formalism in “trying to account for the possibility of democratic politics in an era deeply suspicious both of universalist ideologies and the bureaucratic management of social conflicts by bargaining between interest groups.”Footnote ⁹¹

In contrast to Habermas’s proceduralism, Koskenniemi rejects the notion that the universality of particular claims in the culture of formalism could be pinpointed as a fixed principle or a process.Footnote ⁹² Instead, Koskenniemi prefers a rather enigmatic concept of a “horizon of possibility.”Footnote ⁹³ The culture of formalism is perhaps best described as a specific attitude towards law, power, and society that is socially shared and which deliberately avoids being fixed in too precise terms that could be abused for political purposes.

Koskenniemi also uses a related concept of constitutionalism as mindset.Footnote ⁹⁴ Instead of institutional and structural reforms, constitutionally minded individuals should have their focus on a professional repositioning. Koskenniemi’s argument is that a legal decision-maker must navigate the space between legal positivism and predetermined political objectives without conceding to legal decisionism which borders on arbitrariness.Footnote ⁹⁵ In making decisions, individual judges are called upon to decide “in a manner that aims for universality, impartiality, and all the virtues of the ‘inner morality of law’: honesty, fairness, concern for others, the prohibition of deceit, injury, and coercion.”Footnote ⁹⁶

This kind of visualizing oneself in everyone else’s place is what the simulated discourse requires from individual judges.Footnote ⁹⁷ Although the democratic legal culture must mainly draw from the power of reason of individual judges that are cultivated by the legal professional community, a credible culture necessitates engaging the public particularly when courts decide cases on the basis of open norms.Footnote ⁹⁸ The democratically minded judge cannot trust their ability to gain on the needed moral and social information to bring about the right decision in every case. Judges must be interested in public discourses. Most importantly, particularly in societally important decisions, courts must be transparent about the reasonings of their decisions and present them openly for the public to criticize. Judges must also be open to learn from the criticism and weigh it against possible prejudices instilled in their thinking or in the legal culture they represent. While the politicization of adjudication brings about its own dangers to democracy, European continental legal systems could find something to learn from the United States where constitutionally important court decisions are widely debated in the media and by the public.Footnote ⁹⁹

To bring the argument to a close, I now elaborate on how these considerations relate to informal international instruments. This can be achieved by illustrating what the “counterattitude” is that the democratic mindset should resist. The democratic mindset is posited squarely against a managerial attitude where different forms and levels of governance are seen as means to an end rather than as a series of checks for ensuring just processes and outcomes.Footnote ¹⁰⁰ One motivation behind the use of non-binding instruments is specifically to avoid democratic scrutiny.Footnote ¹⁰¹ In contrast, international organizations cannot produce legally binding instruments and thus the choice of informality is not a managerial choice for them. Instead, mandating international organizations to produce instruments is itself a choice by states to manage international issues by other means than treaties that are scrutinized by parliaments. The task of the democratic judge is to try to balance any international political aspiration with potential domestic effects with the will of the community that which law the judges are supposed to uphold.

This is why metaphors such as bulwark and firewall are so fitting. Courts are the ones who “receive” the international sources of authority and apply them to cases. What matters is the process between the receiving and application. In a hermeneutic sense, the informal instruments that are used to give substance to binding legal norms should themselves be given substance by reflecting on the public will and opinion formation.

The key is to not accept authority without criticism. Judges should ask critical questions when making decisions, including whose are the “current insights” that informal international instruments should reflect for them to be authoritative?Footnote ¹⁰² Especially in cases where it is not states whose rights are at stake, why should it be international endorsement and expectations—supposing the standards primarily refer to the perceptions of states and international organizations—which should determine if the instrument is authoritative in a domestic case?Footnote ¹⁰³ By asking such questions and making the related reasonings explicit, international authority can be brought in contact with democratic expectations and be presented to the public for debate especially in cases of constitutional and political significance.

The argument puts much faith in individual judges and the democratic legal culture in bringing about a democratic sensibility to the use of informal instruments in legal decision-making. But courts may also enable autocratization or concentration of power to the executive.

The issue can be framed with the concept of autocratic legalism. Javier Corrales defines the concept as comprising the use, abuse, and non-use of the law in service of the executive branch.Footnote ¹⁰⁴ This usually concerns autocratic political leaders who consolidate their power by undermining democracy which may take place by deploying or dismantling legal structures.Footnote ¹⁰⁵ Those with power may capture or intimidate courts into advancing authoritarian goals.Footnote ¹⁰⁶ Political protest may be exhausted by channeling it to the legal system through legal challenges.Footnote ¹⁰⁷ In recognition of the prestige that legalism has for its presumed liberal democratic undercurrents, autocrats try to cloak their actions in legal forms for an aura of legitimacy.Footnote ¹⁰⁸ And with discourses of legitimacy authorities can establish a semblance of normative substance to avoid actual critical discussion about the legal and moral substance of decisions.Footnote ¹⁰⁹

Courts may also advance autocratic aspirations on their own initiative. This kind of abuse takes place largely in courts operated by pro-regime individuals. Importantly, the individuals are usually legal professionals themselves who may attack the democratic conditions of the rule of law.Footnote ¹¹⁰ The capture of the legal system may also extend to bar associations and educational institutions and comprise “professional liquidation” of the legal profession by weakening its internal coherence.Footnote ¹¹¹ Courts may contribute to autocratization by upholding democratically problematic legislation and executive action or by actively removing democratic protections. This may take place under the guise of protecting democracy.Footnote ¹¹² Captured or intimidated courts may respect the letter of the law in mundane cases but twist it when the case has political implications.Footnote ¹¹³

All this emphasizes that courts should not be hailed as bulwarks of democracy too easily. Courts’ ability to defend or advance democracy is largely dependent on the political context.Footnote ¹¹⁴ This includes the existence of formal rules regarding the appointment and removal of judges but also informal conventions of judicial autonomy.Footnote ¹¹⁵ The latter is generally contained by legal culture that individuals assimilate in their legal professionalization. And it is generally the legal culture and its conventions that the legal system can control.

Importantly, this Article analyzes the more subtle ways in which international governance may influence domestic legal decisions. This influence does not comprise more serious threats to the judiciary. Courts are generally not coerced to apply informal instruments in democratic states which are the main focus of this Article. The legal system may be nudged or irritated to judicate in a certain way, however. What this article illustrates is democratic undermining that happens when courts are susceptible to applying law in a way which benefits unjustified external power. This may be intentional, unintentional, or simply triggered by the legal and political circumstances. We can assume that some judges want to advance political goals that they share with those promoted by informal sources which may undermine democratic ideals. All this is not autocratization per se but rather indirect transferring of power to global governance networks.

The democracy-undermining activities in courts emphasize either of the two justificatory approaches discussed in this section. As discussed, when individual judges are faced with external influence that could undermine democratic requirements, they should engage in simulated discourses to weigh on different decisions. In some settings judges may deliberate with each other to reach a consensus which can strengthen the deliberative bases of judgments if the judges act in accordance with the democratic legal culture. In so far as courts overstep democratic ideals with their practice, it is for the legal community to bring them in line with the overall system of law. This mainly concerns the legal community in the narrow sense as comprising legal professionals and scholars. As simulated discourses cannot be accessed by others, sufficient reasons for judgments are essential in this regard. Otherwise, a judgment should be deemed inadequate for insufficient reasoning. In significant cases with political implications, the broad legal community as also comprising the public should be engaged through media to trigger justificatory public discourses. This should only pertain to significant cases as public discourses tend to be “flattened” because of the cognitively paralyzing complexity of modern society. Only key developments tend to be thematized in public discourses. Accordingly, there is no point or time to expect comprehensive justificatory discourses on all mundane legal cases.

The approach works best in mature democracies where courts are relatively free from external coercion and capture. The discussion of informal international instruments is also particularly relevant for consolidated liberal democracies because such states are more open to globalized political and legal communication flows than their autocratic counterparts. But visualizing oneself in the place of others is an essential skill to any legal professional. In autocratic countries or countries where legal institutions face autocratization, the issue then moves towards the justification of judicial practice. Regarding the former, it is mainly the public and its democracy movements that can sufficiently challenge an already captured judiciary. Regarding the latter, the discussed democratic legal culture can offer resilience against the autocratization or capture of legal institutions within states, and not just a bulwark against external power.

I now provide a summary of this section before I move on to draw the conclusions of the Article. The idealized position of courts in democracies is that of protectors. Courts are presumed to uphold the rule of law and keep other state institutions in check. In other words, they bulwark democracy from threats within. But democracy also constrains courts. Courts are supposed to apply or construct the law in a way that reflects the will of the democratic legislator. Where the will cannot be deduced from the language of a statute or legislative drafting materials, the democratic will should be supplied with a discursive model of democracy where will and opinion formation emerges not only from the formal legislative process but also from the informal flows of public discourses. I have argued in this section that these democratic requirements impose a need on judges to hold a democratic attitude from which a democratic legal culture can emerge. This culture can resist unjustifiable political influence that emerges not within but without the domestic system. The culture of formalism by Koskenniemi was used as a model in this regard. In essence, what is called for is a bulwark or a firewall where judges, when faced with the possibility of applying informal international instruments, should deliberate on what kind of effects the application may have on individual liberties and the integrity of the democratic process. Whereas informal international instruments can be used to give substance to open or otherwise ambiguous legal norms, the informal instruments themselves, which are equally ambiguous, should be given substance by considerations of public will and opinion formation. It is also important that these considerations are made explicit particularly in cases of constitutional and political significance to enable debate by the broad legal community to make sure that legal practice is aligned with the will and opinions of the community.