Courts, Law and Politics:Conflict, Drift, and Institutional Change

SW 73- Courts, Law and Politics:Conflict, Drift, and Institutional Change

Convenors: Maria Clara Calheiros; Manuel Gómez ;Margarida Lacombe Camargo 

Contact: claracc@direito.uminho.pt; magomez@fiu.edu;

margaridacamargo@direito.ufrj.br

The first three decades of the twenty-first century have witnessed a renewed resurgence of tensions between law and politics. These developments have become especially visible in countries operating under formally democratic constitutional frameworks, including those undergoing processes of democratic erosion or outright institutional capture. In certain respects, they recall the defining debates of the twentieth century.

Against this backdrop, the relationship between legal institutions and political power has once again emerged as a central preoccupation in constitutional and political theory. Questions surrounding judicial authority, the role of courts in democratic governance, and the balance between legal adjudication and political decision-making have acquired renewed urgency. Recent developments across diverse constitutional contexts make this especially clear and illustrate that these tensions are neither geographically isolated nor theoretically marginal. They are, rather, symptomatic of a broader and accelerating global phenomenon.

These pressures operate not only from the political sphere. The post-World War II constitutional settlement charged courts with the protection of fundamental rights. In Dworkin’s formulation, these are trumps against both political excess and the unchecked dominance of private interests. Yet legal institutions increasingly find themselves drawn into the resolution of civil and private conflicts, compelling judges to mediate between competing interests rather than act as guardians of constitutionally guaranteed rights. Disputes over environmental protection, urban and rural land use, and the survival of vulnerable communities are increasingly entangled with claims of property rights and natural resource exploitation, forcing courts to broker settlements between specific interest groups rather than adjudicate constitutional guarantees. Flooded with cases alien to their institutional nature, courts resort to conciliation and alternative dispute resolution, with judges serving as intermediaries at negotiating tables where the parliamentary process should instead prevail. In this sense, the grammar of law is also the grammar of conflict. The judicialisation of politics finds its mirror image in the quiet colonization of public law by private litigation.

This workshop offers a forum for critical inquiry into these intersections of law and politics in contemporary democracies. It will pay particular attention to legal institutions and to the multiple tensions that arise within systems founded on the separation of powers.

Possible topics include, but are not limited to:

• The privatisation of constitutional conflict: conciliation, mediation, and the limits of judicial function
• The politicisation of judicial appointments and its effects on court legitimacy
• Strategic litigation and the judicialisation of political conflicts
• Constitutional courts as political actors: between counter-majoritarianism and democratic accountability
• Executive aggrandizement and judicial responses in backsliding democracies
• The rule of law under stress: populism, emergency powers, and constitutional resilience
• Separation of powers in crisis: legislative abdication and judicial expansion
• Fundamental rights versus private interests: property, natural resources, and vulnerable groups before constitutional courts