2. Explaining legal practices: The internal and external dimensions of law reconsidered

Montesquieu famously described the role of judges as being ‘la bouche de la loi’.Footnote ⁷ Forming part of his notion of separation of powers, Montesquieu’s view of the judiciary was normative: judges should not perform semi-legislative roles, but exclusively fulfil their constitutionally limited role of applying the law, as enacted in parliament and executed by the government. This idea of judges as legal technocrats – the intermediaries between law and its application – has inspired dominant legal thinking in Europe and beyond; notably, providing a basis for legal formalism. Legal formalism takes the starting premise that the law – and only the law – dictates the outcome of cases, thereby excluding extra-legal factors from the determination and application of the law in concrete cases.Footnote ⁸ While there are obvious normative and constitutional reasons for limiting the role of judges to the application of law, the question remains whether normative reasons and formalist legal theories fully explain judicial practices.

Although jurists, generally speaking, are trained with a view to pursue the normative ideal of the restricted and law-applying judge, and legal formalism has undoubtedly become the dominant approach in continental European law faculties, legal realists have long criticized this vision. This controversy concerns in reality the bigger question of what is the aim of legal science. For doctrinal legal scholars, legal science is an endeavour, which aims to establish the content of valid and applicable laws. Consequently, they conceive of legal science as a direct continuation of the practice of law. In contrast, the realist camp sees this blending of legal science and practice as confusing the scientific objective of the study of law with the practical application of legal methods and knowledge. According to many realists, the scientific study of law fundamentally seeks to make law intelligible – not as a simple systematization of law’s relative internal coherence and normativity, but as a social practice influenced by various social and political dynamics. Legal realists are, therefore, not satisfied with studying the normative ideal that practitioners strive towards (i.e., the impartial and impersonal application of the law by legal-technocrats and related theories on the internal coherence and clarity of laws). Instead, they aim to understand the (socio-)logics and rationalities behind certain practices; they strive to identify a scientific approach to law that is interpretative and, to varying extents, empirical.Footnote ⁹

In this section, we take legal realists’ critique of legal formalism as a starting point in order to develop a new approach to studying the behaviour of ICs and their judges. Many legal realists have challenged formalist accounts of law by moving their focus to the motivations of legal actors – especially judges – in their legal actions. An extreme position was taken by the American legal realist Jerome Frank, who developed a quasi-Freudian theory of judging that emphasized the judges’ individual life experiences.Footnote ¹⁰ Derogatively written-off as ‘breakfast jurisprudence’ by his critics, realists then turned to group dynamics among judges for a more balanced explanation of judicial behaviour. Scandinavian realist Alf Ross’s notion of ‘judge(s)’ ideology’ is interesting in this respect.Footnote ¹¹ Ross argues that, in order to explain judicial behaviour, it is necessary to understand the collective socialization of judges. This occurs through, for instance, the acquisition of methodological standards for legal analysis that are inter-subjectively accepted in the legal field.Footnote ¹² In other words, judicial behaviour is not, as suggested by Frank, individually determined, but is the result of ‘… a process determined by attitudes and concepts, a common normative ideology, present and active in the minds of judges when they act in their capacity as judges’.Footnote ¹³ According to Ross, collective beliefs and concepts form a defined common ideology, which ultimately influences the outcomes of cases.Footnote ¹⁴ Max Weber suggests something similar when describing legal behaviour as being influenced by a ‘complex of maxims in the minds of certain men [jurists]’, referring to the particular logics, skills, and knowledge of methods to reach legal conclusions that are specific to legally trained individuals. The development of these logics and mind-sets is essentially what distinguishes the homo juridicus from ordinary citizens.Footnote ¹⁵

Both Ross and Weber raise fundamental questions on the study of juridical maxims and the underlying legal ideology of judges, without losing sight of what is distinct about law. This points directly to the problem of the internal and external aspects of law which H. L. A. Hart and others have emphasized.Footnote ¹⁶ Jürgen Habermas puts it this way:

Habermas encourages legal sociologists to expand the object of inquiry of legal science. On the one hand, it is necessary to consider the institutional dimensions of law to understand the resulting practices. On the other, it is necessary to take legal discourse and logic itself seriously. This requires a double perspective that focuses both on legal actors’ views and normative ideas of law, as well as on the external mechanisms and institutions which are impacted by and in turn affect legal understandings. In other words, according to Habermas, law should be studied as both a system of knowledge and a system of action realized by a societally embedded institution.

While we agree with Habermas’ general proposition, what is not entirely convincing is the last part of the quote; namely, whether the internal dimension is only internally accessible. If that is the case, then legal sociologists and legal philosophers can only be outsiders, mere observers of an internal knowledge production that is only accessible to its own practitioners. Accepting this premise runs counter to most scientific endeavours, from natural science to social science and the humanities. It would imply that law – because of its role as a producer of doctrine – is a form of scientific exceptionalism, perhaps only shared with doctrinal theology. In our opinion, this is not a defendable position. As social scientists, we conduct research in many fields and on many topics which we do not directly practice ourselves or, for that matter, sympathize with.Footnote ¹⁸

In our view, doctrinal systems are symbolic systems based on a set of observable abstractions and logics. Crucially, these abstractions and logics can be made the object of both empirical and philosophical inquiry. We are not alone in this assessment. In a critique of the inherent formalism of Kelsenian legal philosophy, Ross puts it this way:

For Ross, doctrinal law and practices are, in other words, rationalized ideology. In his understanding, law is normative – an ideology – that is then rationalized by a set of collective practices, and which can be explained from both an internal and an external perspective. Furthermore, for Ross, both perspectives are needed for a fuller understanding of the phenomenon of law. Lawyers, when asked to practice law and provide legal answers, tend to rely on intersubjective understandings of arguments validated by shared ideas of legal sources and interpretation. How far one can go, for example, in interpreting a statute is delineated by the collective understanding of the symbolic order of law – the ideology – shared by its practitioners.

If Ross is right, this also means that law is essentially a set of social practices. It does not exist in and of itself, but only through its practices. Abstractly, this is easy to prove by simply imagining a court of law devoid of judges and lawyers. It is certain that not much would happen in such a forum. This also means – as Habermas suggests – that if we want to understand legal reality as a whole, we need to merge the internal and external perspectives. Our claim is that this necessary fusion can happen without going ‘all-in’ on the internal perspective, as Habermas seems to suggest.

The remaining problem is how to manage the interface of the normative/doctrinal with the social embedment of those dimensions. Pierre Bourdieu suggested one approach, writing: ‘A rigorous science of the law is distinguished from what is normally called jurisprudence in that the former takes the latter as its object of study’.Footnote ²⁰ From this perspective, the very production of norms – and not the refinement and systematization of such norms – becomes the object of inquiry. We find a similar observation in Ross, although with a somewhat stronger stance against what he calls ‘pure doctrinal exposition’:

What Ross suggests is that a purely legalistic, internal approach to law is not a scientific endeavour, even if practically it remains important in society.

Although the combination of Bourdieu and Ross helps us approximate the internal and external perspectives, the two strategies are still somewhat at odds. In our view, an additional step is needed: namely, creating an empirically viable object of inquiry, which can capture both dimensions. Once again, Bourdieu comes to the rescue. Bourdieu is acutely aware that one type of legal formalism can easily be replaced with another, by taking the claims of legal formalism too seriously in the sociological reconstruction. To avoid this trap, Bourdieu suggests a methodological and theoretical shift that deconstructs and reconstructs the notion of a legal system in terms of a legal field. Such a shift is, in our view, crucial for developing an appropriate object of inquiry. Bourdieu writes:

Bourdieu’s position has some interesting commonalities with the Habermas quote cited above. According to both theorists, it is necessary to consider the institutional dimensions of law in combination with legal discourse and logic itself. However, Bourdieu elaborates further, warning that this must be achieved without falling into the trap of accepting legal discourse as being autonomous from its surroundings, or (for that matter) self-referential in a socio-biological sense as Luhmann’s work suggested. The self-referentiality potential of law is undoubtedly high, as all practicing lawyers would attest to, yet it is never entirely uncoupled from the objective relations between actors and institutions.

In our view, however, Bourdieu is perhaps too quick to assume that transformations of law result predominantly from struggles among agents in the legal field. While this is true in many and possibly most cases, major transformations in law can and do also result from changes occurring outside of the legal field. In some of our previous publications, we explored how structural social changes, such as geopolitical shifts, have influenced the evolution of ICs and their practices.Footnote ²³ These external shifts have been translated into law and legal code, but the catalysing factors are, for the most part, external to the legal field.Footnote ²⁴ Although law – as Luhmann succinctly puts it – translates the outside world into its own legal code, this does not mean that law is not changed by the external world.Footnote ²⁵ Quite the opposite. Law is extremely exposed to external factors, starting with ordinary politics. This, in a nutshell, is where formalism and realism clash. Should those external dimensions and their institutional and legal impact be part of the analysis? In our view, as we detail in the next section, it is indispensable to combine both dimensions in order to fully comprehend the phenomenon of law in general and judicial practices in particular.

3. From judicial behaviour to judicial practices: Le sens juridique as object of inquiry

In this section, we aim to turn the aforementioned observations into a practical and empirical approach for studying international judicial practices. Building on the preceding discussion, our approach proposes to move away from the narrow idea of judicial behaviour, which is dear to many legal realists, and instead introduce a different, broader object: judicial practices. To do so, we suggest situating the notion of le sens juridique as the central object of inquiry for empirical investigations of judicial action. This builds directly upon the observations of Weber and Ross about what characterizes legal behaviour and what, therefore, needs to be studied in order to understand judicial practices.

Neither Ross nor Weber, however, articulate their ideas regarding judicial habits and common standards of interpretation in ways that lend themselves to empirical investigation.Footnote ²⁶ Consequently, there is a need for a more explicit framing concept that allows for an empirical exploration of possible commonalities in the outlooks of international judges, and how tacit knowledge and taken-for-granted assumptions – a sens juridique – relating to the practice of law and adjudication are acquired. We elect to follow ENLR and introduce the notion of habitus developed by Bourdieu for approximating these dimensions of judging. We claim that (international) adjudication is informed by a combination of social and psychological processes; it occurs as a double structuration that we can capture through the notion of habitus. Bourdieu defines habitus as:

The underlying aim of the notion of habitus is to develop a theory of practice, which understands action as being informed by both pre-constructed sensibilities and broader social structures.Footnote ²⁸ For our purpose, this means a concerted shift in attention away from judicial behaviour in a narrow, psychological sense, toward judicial practices in a more sociological sense of patterned actions resulting from micro-macro interplays. Hence, habitus can be viewed as the internalized schemes which guide individual behaviour.Footnote ²⁹ However, it is important to recognize that habitus is not simply a structured structure, it is also structuring structure in terms of the broader (external) effects of the actions motivated by the internalized schemes. We are, in other words, dealing with co-constitutive processes that result in what Bourdieu termed ‘a practical sense’.Footnote ³⁰ Judicial habitus, seen from this dual perspective, is thus the result of both social and psychological processes: le sens juridique.

The question of collective socialization into legal thinking and logic is a complex matter, especially when it comes to ICs because of the different national and professional backgrounds of international judges.Footnote ³¹ Do international judges form a global community of law,Footnote ³² invisible to most,Footnote ³³ but nevertheless united by commonalities in legal education and legal outlook, and therefore prone to citing the same cases, reading the same books, or even getting information from the same newspapers? Proponents of global constitutionalism and liberal international order assume, to varying degrees, that this is the case. Yet, scholars have also suggested that international law is far more polycentric and essentially a common denominator for culturally diverse readings and conceptions.Footnote ³⁴ Adding further complexity to the picture is the fact that many international judges are not, in the strictest sense, specialists in international law; they are appointed to ICs due to their knowledge of the domestic law of their home countries or via membership of national networks. Moreover, ICs are often hybrid courts, situated at the intersection of national and international law.Footnote ³⁵ For the purpose of empirical research, this calls for scrutiny of legal-cultural differences, rather than a base assumption of convergence. While legal education and the shared identity of being jurists undoubtedly create commonalities among international judges – making the operation of ICs possible in the first place – the differences that inescapably exist due to nationality, legal specialization, cultural capital, networks, and ideology are worthwhile objects of inquiry in order to better understand and interpret judicial practices.

In this regard, it is important to consider the different professional trajectories of the judges prior to their appointment to ICs, which range from backgrounds in academia to others in diplomacy.Footnote ³⁶ It has been suggested, for instance, that former diplomats are generally softer on states,Footnote ³⁷ or that courts lacking judges with a background in politics and diplomacy tend to lose sight of the political fragility of ICs.Footnote ³⁸ Scholars have also noted that individual characteristics of judges can lead them to take on different roles in the collective decision-making process, distinguishing between arbitrators, entrepreneurs, and delineators.Footnote ³⁹ In a similar way, international judges have also been studied from the perspective of their policy-preferences.Footnote ⁴⁰ Building on the vast behavioural literature on the US Supreme Court, which has established that judges’ ideological values influence adjudication, similar observations have been made with regard to ICs.Footnote ⁴¹ These individual traits are studied in order to understand – or in some cases predict – when the facts of a case might lend themselves to particular preferences which can then influence the overall outcome.Footnote ⁴²

All of these individual, collective, and social factors are relevant (to at least some degree) for making judicial behaviour intelligible. In our view, they are, however, insufficient in themselves to ground a more sociological inquiry. ICs’ judicial practices are a moving target that will here be approached with a recognition of the temporally specific social and institutional contexts of adjudication. ICs, like all courts, operate in particular social and political configurations which influence the structure of (im)possibilities in adjudication.Footnote ⁴³ In addition, the level of institutionalization of the IC in question matters. Judges’ individual idiosyncrasies may play a bigger role in nascent courts than in established ones, as the latter largely rely on routinized practices and bureaucratized operations. As scholars have observed, institutionalization changes the human resources brought into ICs, not only in terms of socialization, but also in relation to recruitment patterns.Footnote ⁴⁴ While professionalization might make an IC less attractive to certain legal entrepreneurs, it becomes indispensable for a highly institutionalized IC to recruit legal professionals, who are ready to perform more routinized work. Processes of institutionalization and professionalization do not, however, once and for all erase the importance of the various social and individual traits discussed; in reality, they are likely to advance and valorize particular individual traits at the cost of others. In summary, the evolution of an IC might mean that different judges’ competencies are valorized differently at any given point in time.

These observations are generally illustrative of our interpretative approach. Individual traits matter – from nationality and professional background to policy-preferences – but must be viewed in the context of the changing institutional space analysed. While judges each have an individual background and trajectory before their international judicial appointment, once appointed they enter a particular social setting and group dynamic that is itself undergoing change. A realistic account of judicial behaviour, therefore, necessarily reflects both the psychological and social dimensions that give rise to judicial institutional practices. To turn these theoretical observations into an empirical research strategy, specific tools for understanding both the psychological and sociological dimensions of judicial practices need to be developed.

For this purpose, we suggest reinterpreting Bourdieu’s notion of capitals as a means for comparing the habitus of different international judges and exploring how they nevertheless form a collective. Bourdieu viewed capitals as objectively valorized competences in given social fields.Footnote ⁴⁵ For example; all international judges have juridical capital, which is a particular form of objectified and codified symbolic capital providing jurists with the symbolic power to interpret and practice the law. Our interest, however, is in the relative differences between the capitals which judges have, such as; legal academic capital, capitals derived from engagement in diplomacy and politics, and capitals derived from engagement in legal practice as judges or attorneys.Footnote ⁴⁶ The social space of a court is thus shaped by how the holders of these relatively different resources compete for dominance in the interpretation of the law and provision of ‘juristic truth’. In line with the discussion of habitus above, we assume a correlation between the accumulation of capitals through individual trajectories and subsequent positions taken inside the court. This argument is based on the premise that the accumulation of resources helps to form the habitus of individual judges in terms of their legal views and orientations.

The final dimension of our approach is more structural, and concerns the changing contexts of international adjudication and the way in which ICs relate to them. Although judicial deliberation is separated – symbolically and legally – from the outside world, ICs operate in broader transnational social fields characterized by specific power structures, actors, interests, and social dynamics. Drawing on the post-Bourdieusian framing concept of transnational fields,Footnote ⁴⁷ we suggest exploring the contexts of ICs to determine the opportunity structure surrounding adjudication at given moments in time. This, in turn, allows for an understanding of ICs as evolutionary institutions that develop specific institutional and legal rationalities, reflecting the institutions’ embedded rationality – or situated cognitionFootnote ⁴⁸ – in given socio-political contexts. In this way, our approach, allows us to explain the different historical manifestations of ICs, and how these are reflective of both wider society and of the very agents of the institution.

4. Exploring the situated and bounded judicial practices of the CCJ

In the preceding sections, we have attempted to develop a structuralist model for understanding and explaining the judicial practices of ICs. This section, in lieu of a conclusion, provides a concretization of our ideas, demonstrating how our model can be used to explain ICs’ practices. Four connected dimensions must be analysed to develop an empirically convincing study using our framework: case law, institutional design, agency, and context. Below, we illustrate our model using the empirical case of the CCJ, which both authors have studied in-depth elsewhere.Footnote ⁴⁹ We focus on one specific case, the Myrie case,Footnote ⁵⁰ which is a landmark CCJ ruling from 2013.

Established in 2005 as the judicial body of the Caribbean Common Market (CARICOM), the particularly situated and bounded rationality of the CCJ can be observed in the foundations of its institutional design. The CCJ is a hybrid court with double jurisdiction, which reflects the underlying structural socio-political dynamics of the Caribbean legal field. In its Appellate Jurisdiction, the CCJ replaces the post-colonial system of justice in the Caribbean in which appeals were made to the Judicial Committee of the Privy Council (JCPC) in London.Footnote ⁵¹ In this jurisdiction, the CCJ rules upon national appeals cases in criminal and civil matters and upon general issues of constitutional law as a Supreme Court. ^{Footnote 52} In its Original Jurisdiction (OJ), the CCJ contributes to strengthening economic integration in the CARICOM by interpreting and applying the Revised Treaty of Chaguaramas and general international law.Footnote ⁵³ While historically there seems to be a continuity between the passage from British colonial rule (many Caribbean countries gained independence in the 1960s) and the beginning of Caribbean economic integration (in the mid-1960s with the creation of the Caribbean Free Trade Area, which became the CARICOM in 1973), it is important to state that the dual jurisdiction of the CCJ highlights that the institution does not necessarily represent a transition from one dimension of integration to another. The two dimensions of integration (national/constitutional and international/supranational) instead coexist to this day under the institutional umbrella of the CCJ, a fact that has significantly influenced the trajectory of the Court.

In terms of case law, the situated and bounded rationality of the CCJ can be illustrated by analysing the CCJ’s ruling in Myrie.Footnote ⁵⁴ A classic freedom of movement case, Myrie raised a number of crucial, and controversial, legal questions in the Caribbean field,Footnote ⁵⁵ the most fundamental of which was the applicability of two pivotal principles of law in regional integration projects – the direct effect and supremacy of community law – to the CARICOM.Footnote ⁵⁶ While generally accepted as part of European Union law,Footnote ⁵⁷ such principles were essentially at odds with the strong dualist approach to international law generally observed by Caribbean political and legal elites. One of the many legacies of English colonialism in the region, the dualist approach to international law basically stipulates that international norms can only be binding upon states when the latter have implemented them into law through an act of Parliament.Footnote ⁵⁸ In other words, in Myrie, the CCJ was confronted with the dilemma of either following the established path set out by the Court of Justice of the European Union, thereby clashing with the legal culture and normative values of its own socio-political context, or of finding a contextually adapted and appropriate solution.

The legal solution provided in Myrie is interesting in this regard, as it suggests that the CCJ’s judges were well aware of this situation and acted accordingly. In the ruling, the CCJ did not conclude that CARICOM law is directly effective and supreme, unlike the European model which upholds this principle regardless of member states’ acts of national implementation. Instead, the CCJ established a new and distinct principle of indirect effect, determining that, when not implemented into national law by member states, CARICOM law only produces direct effects at the regional, supranational level. This concretely entails that, without incorporation into national law, CARICOM law can be enforced at the Community level by private litigants bringing cases directly before the CCJ. ^{Footnote 59} In so doing, the CCJ not only established a principle allowing CARICOM law to be effective, but one which also respected the history, legal culture, and local sense of legal normativity – le sens juridique – of the Caribbean legal field.

The legal engineering of the CCJ in Myrie cannot fully be explained without also looking at the capitals of the CCJ’s judges who participated in the writing of the judgment. The CCJ bench at the time was characterized by quite a balanced mix of diplomatic-political, academic, and judicial capitals that, as a judicial microcosm, in many ways reflected the socio-political and structural dynamics of the Caribbean legal field and society. A crucial figure on the CCJ bench during the judgment of Myrie was the President of the CCJ at the time, Sir Dennis Byron.Footnote ⁶⁰ A typical exponent of the Caribbean transnational legal elite, prior to his appointment to the CCJ, Sir Dennis (like many lawyers of his generation) had practised law in several jurisdictions of the Caribbean and consolidated an impressive regional legal career. He had been a High Court Judge in the Eastern Caribbean Supreme Court, before subsequently becoming Chief Justice of the same Court in 1999. In 2004, Sir Dennis was appointed to serve both as judge in the United Nations International Criminal Tribunal for Rwanda and as a member of the Privy Council, both contributing to a transnational reframing of his career before his appointment as Chief Justice of the CCJ.Footnote ⁶¹

Alongside Sir Dennis, Winston Anderson was the CARICOM law expert on the bench. Prior to his appointment to the CCJ, Anderson had been the General Counsel of the CARICOM Secretariat. Anderson also had an academic background, having been the Dean of the Faculty of Law of the University of the West Indies and having pursued doctoral studies in the UK. The bench was completed by judges who were either former members of national judiciaries, or academics. Rolston Nelson from Jamaica had been a practising lawyer in Jamaica and Trinidad and Tobago and taught law at the Hugh Wooding Law School of Trinidad and Tobago. Adrian Saunders, from Saint Vincent and the Grenadines, had been judge in and then Chief Justice of the East Caribbean Supreme Court, and Désirée Bernard, from Guyana, had previously occupied all top positions in the Guyanese judiciary. Reflecting the postcolonial and international context of the CCJ, this impressive roll-call of Caribbean judges was complemented by two European judges: Jacob Wit from the Netherlands, a former Judge at the Joint Court of Justice of the Netherlands Antilles and Aruba and assumed EU law expert; and David Hayton from the UK, a former law professor and Dean of the Faculty of Law at King’s College London with expertise on the law of trusts.

The individual capitals and collective features of this multi-faceted bench help to explain the judicial outcome in Myrie. Firstly, all judges (with the exception of Judge Wit) had a clear and strong common law background. In the reasoning of the court, this meant that they were very reluctant to challenge the basic legal value of dualism, and instead sought out a solution that respected the main tenets of the dualist approach to international law omnipresent in the Caribbean region, while developing an effective system of supranational law. Their solution in terms of indirect effect was a carefully crafted legal construct that provided precisely this balance.

Secondly, the combination of academic, judicial, and political capitals represented on the CCJ’s bench also helps explain the judicial outcome of Myrie. This rich variety of capitals was crucial in terms of allowing the Court to reach a diplomatically attuned, yet legally bold conclusion in the case. In other words, because of the judges’ shared exposure to the intricacies of Caribbean law and politics, they were acutely aware of how far they could go in terms of pushing for legal integration without alienating the member states. Again, the decision was carefully crafted so as to avoid turning the Courts’ key audiences against it. The CCJ did not simply import a European concept, but instead constructed a Caribbean-tailored solution that both regionalists seeking Caribbeanization of the region and transnationalists with a preference for maintaining ties with the UK and its legal system could appreciate.

In conclusion, this brief case study exemplifies how our structuralist model of judicial practices can be applied by exploring the interplay between internal and external dimensions of the CCJ through case law (using the example of the Myrie), institutional design (the court’s hybrid jurisdiction), agency (the balance of judicial, academic, and political capitals among judges) and context (the postcolonial legacies in the Caribbean legal field). The case study exemplifies how the situated and bounded rationality of the CCJ has influenced the development of law in the region. In other words, our model seeks to make the positioning and judgment of the CCJ sociologically intelligible through an analysis of these four aspects of its practices. As explored elsewhere, the Myrie case undoubtedly helped the Court to consolidate and even expand its authority in the Caribbean legal field, while at the same time exerting an important influence over the legal direction of the CARICOM.Footnote ⁶² This suggests that the relative correspondence between the judicial practices of the CCJ and the structural contexts of its operation have had a positive effect on the trajectory of the Court.