Mapping Juridification

• DOI: http://doi.org/10.1111/j.1468-0386.2007.00405.x
• Author: Lars Chr. Blichner,Anders Molander
• Published date: 01 January 2008
• Date: 01 January 2008

Mapping Juridification

Lars Chr. Blichner and Anders Molander*

Abstract: ‘Juridification’ is an ambiguous term, both descriptively and normatively. In

this article we distinguish between five dimensions of ‘juridification’: constitutive juridifi-

cation, juridification as law’s expansion and differentiation, as increased conflict solving

with reference to law, as increased judicial power and as legal framing. In the first part, we

clarify the five dimensions. In the second part, we discuss the relationship between them

and in a third and concluding part, we briefly comment on some of the challenges we are

faced with from a normative point of view.

Introduction

Juridification is an ambiguous concept with regard to both its descriptive and norma-

tive content. In descriptive terms some see juridification1as ‘the proliferation of law’ or

as ‘the tendency towards an increase in formal (or positive, written) law’,2others as ‘the

monopolisation of the legal field by legal professionals’,3the ‘construction of judicial

power’,4‘the expansion of judicial power’5and some quite generally link juridification

to the spread of rule-guided action or the expectation of lawful conduct, in any setting,

private or public.6These are but a few of the shorthand definitions presented in the

literature on juridification. In normative terms, juridification is sometimes seen as the

hallmark of constitutional democracy, the triumph of the rule of law over despotism; at

other times as undermining not only efficiency, but also undermining democracy and

* Lars Chr. Blichner, Department of Administration and Organization Theory, University of Bergen,

Norway, lars.blichner@aorg.uib.no; Anders Molander, Center for the Study of Professions, Oslo

University College, Oslo, Norway, anders.molander@hio.no.

1Juridification is related to the two other concepts, ‘judicialisation’ and ‘legalisation’, concepts that are

sometimes used more or less synonymously or at least overlap with the concept of ‘juridification’ as we

understand it.

2J. Habermas, The Theory of Communicative Action, vol 2 (Beacon Press, 1987), at 359.

3See P. Brooker, ‘The Juridification of Alternative Dispute Resolution’, (1999) XX Anglo American Law

Review 1, at 1, n 1.

4See A. Stone Sweet, ‘Judicialisation and the Construction of Governance’, in M. Shapiro and A. Stone

Sweet (eds), On Law, Politics and Judicialisation (Oxford University Press, 2002), at 71: ‘I will use the term

“judicialisation” as shorthand for...theconstruction of judicial power’.

5C. Neal Tate and T. Vallinder, The Global Expansion of Judicial Power (New York University Press, 1995),

at 2. Tate and Vallinder are using the term ‘judicialisation’.

6See, e.g., H. W. Arturs and R. Kreklewich, ‘Law, Legal Institutions, and the Legal Profession in the New

Economy’, (1996) 34(1) Osgoode Hall Law Review 29: ‘This process of extrapolating expectations of

lawfulness and fairness from state courts to other public agencies, and from the state sphere to private

institutions, we will refer to as juridification’.

European Law Journal, Vol. 14, No. 1, January 2008, pp. 36–54.

© 2008 The Authors

Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

civil society, for example in the form of ‘legal domination’,7and eventually the rule of

law itself.8Today the question of juridification is actualised through the emergence of

new democracies at an unprecedented scale; the proliferation of rights discourses

globally, regionally and nationally; and the growth of international law generally and

the use of international courts and war crimes tribunals more specifically. Simply put,

the twin ideals of the rule of law and legally assured human rights have conquered and

continue to conquer new ground worldwide. The paradigmatic case of juridification at

the international level no doubt is the development of European Community law and

we will mainly use this development to exemplify, and hopefully show the usefulness, of

our conceptualisation.

No doubt the normative questions are the most interesting ones and as such hard to

resist. Still, in order to talk about juridification in normative terms we first have to

know what it is. What is needed is a conceptualisation that is complex enough to grasp

the different meanings of the term and still simple enough to work as an inter-subjective

standard. Ideally, we should be able to tell stories of juridification using roughly the

same language, to compare notes and start working on more general normative assess-

ments of juridification. Aware of the dangers and difficulties involved in such an

endeavor we still believe it would be overly defeatist not to try to clear the conceptual

ground.9

In aiming at conceptual clarification, we are of course aware that such an exercise is

in itself normative. It is normative in the double sense that it aspires at being the best

possible account and as such should be informed by the relevant normative standards.

We try to avoid a too thin account that precludes important normative questions and

a too thick account that prejudges the normative questions involved.

Our intention here then is not to evaluate processes of juridification, but to provide

the ground for assessments according to different normative standards. What we

present is not a normative theory of juridification but at best a prolegomena to such a

theory. The same can be said with regard to explanation. At best we provide a scheme

for explanatory reasoning. If we indeed do ‘explain’ anything, it is in a hermeneutic and

not causal sense. It is the sometimes tangled debate on juridification that we hope we

may help untangle by clarifying the meaning of ‘juridification’. On the other hand, of

course, our conceptualisation builds on the juridification debate. It also builds directly

or indirectly on a vast body of work on legal theory, legal development and legal

culture. The discussion on juridification is intimately linked to some of the basic

questions in legal theory, such as what is law, what is a legal order and how develop-

ments of law and legal orders may be understood. We have tried to start out with a

rather broad position on these questions, in order not to exclude particular views at the

outset, a too tall order perhaps, but in our view worth the effort. Thus, different parts

7See J. Bohman, ‘Reflexive Constitution-Making and Transnational Governance’, in E. O. Eriksen (ed.),

Making the European Polity (Routledge, 2005), at 39: ‘I argue that the problem the constitution has to

solve is juridification, or the possibility of legal domination in the face of institutions that cannot organise

a singular and unified popular sovereignty. Such legal domination is not simply tyranny, but rather the

imposition of a cooperative scheme upon others who cannot influence or revise its terms’.

8See, e.g., J. Cohen, Regulating Intimacy. A New Legal Paradigm (Princeton University Press, 2002), and

also the enumeration of the downsides of juridification by Otfried Höffe, Vernunft und Recht (Suhrkamp,

1996), 41–42.

9Compare also J. H. H. Weiler and J. P. Trachtman, ‘European Constitutionalism and Its Discontents’,

[1996–97] Northwestern Journal of International Law and Business 354, at 355.

January 2008 Mapping Juridification

© 2008 The Authors 37

Journal compilation © 2008 Blackwell Publishing Ltd.