Transnational Judicial Dialogue as an Organisational Field

• DOI: http://doi.org/10.1111/eulj.12063
• Date: 01 November 2013
• Author: Olga Frishman
• Published date: 01 November 2013

Transnational Judicial Dialogue as an

Organisational Field

Olga Frishman*

Abstract: Over the last few decades, judges and courts have had an important role in

global governance. They also now communicate with each other more than they used to.

Scholars have named this phenomenon ‘the transnational judicial dialogue.’ This paper

calls for a comprehensive understanding of this judicial dialogue in a way that will

explain the influence it has on courts. This paper proposes to use the concept of organi-

sational fields, developed by DiMaggio and Powell, to study the relationships between

courts. It will be seen that this concept gives a fuller account of those relationships and

their effects than the existing approaches. This paper will first show that the transna-

tional organisational field of the courts is now emerging using the four criteria of

structuration. Then, the paper will discuss three examples of how this concept can

contribute to the study of transnational relationships between courts.

I Introduction

The transnational relationships of courts stand in the middle of current discussions.

This paper proposes a novel way to understand and analyse those relationships.1

Implementing insights from organisational theory, this paper calls for an

understanding of the relationships between courts as part of an emerging

transnational organisational field. This field includes regional courts, international

courts and the national highest courts, as well as other courts that communicate

with courts from jurisdictions other than their own. The relationships between those

courts are determined by social and historical factors, as well as by other factors.

This paper also calls for the use of concepts developed to study organisational fields

in order to understand the relationships between courts, as well as the future of the

judicial role in global governance.

* I am grateful to Eyal Benvenisti (my doctoral thesis supervisor) for his support, guidance, and com-

ments. I also wish to thank Liora Bilsky, Gabriella Blum, Avinoam Cohen, Natalie Davidson, Shai

Dothan, Talia Fisher, Maytal Gibloa, Eldar Haber, Ron Harris, Vicki C. Jackson, Shai J. Keidar,

Doreen Lustig, Frank I. Michelman, Ayelet Oz, Ariel Porat, Masua Sagiv, Yuval Shany, Adam Shinar,

Jed Shugerman, Francis Snyder, Mark Tushnet, Alejandra Reyes Vanges, Issi Rosen-Zvi, Adrian

Vermeule, Keren Yalin-Mor, the participants of the Ph.D. Colloquium at Tel-Aviv University Faculty

of Law, and the participants of the WISH 2012 conference for their valuable comments. I also want to

thank the Zvi Meitar Center for Advanced Legal Studies and the Corporate Responsibility for Human

Rights Violations in the Transnational Order Research Project for their support.

1A. Slaughter, A New World Order (Princeton University Press, 2004), at 65–103.

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European Law Journal, Vol. 19, No. 6, November 2013, pp. 739–758.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

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Although many scholars have addressed the involvement of the courts on the

transnational level, no comprehensive account of how courts interact and influence

each other has been suggested. This paper argues that the concept of organisational

fields can fill this gap. Organisational fields are a unit of analysis in the new institu-

tionalism approach to organisational theory. In 1983, DiMaggio and Powell defined

organisational fields as those organisations that, in the aggregate, constitute a recog-

nised area of institutional life.2Today, many scholars use this concept to explore

questions about the way organisations are affected by each other and what kinds of

organisational archetypes exist in an organisational field.

This paper argues that it is possible to identify a pattern in the relationships

among courts. Unlike current approaches that look at courts’ relationships as

aspects of national, and thus foreign relationships, this paper will claim that it is

possible to understand the changes that courts around the world undergo as a new

organisational field emerges—the transnational organisational field of courts. To

illustrate this point, this paper will use the four criteria of structuration as described

by DiMaggio and Powell. This paper will show that there is an increase in the

extent of interaction among courts, and that there is an increase in the information

load that the courts need to deal with. This paper will also demonstrate that there

are indications in the literature that courts are aware of the fact that they are

involved in a common enterprise. In addition, it will explain that there are signs of

defined structures of interorganisational domination and coalition. Ultimately, this

paper will claim that the existing indications are enough for scholars of

transnational judicial dialogue to address courts as part of an organisational field.

The main advantage of this conceptualisation is that it provides a more complex

understanding of the relationships between courts. As such, it deepens the existing

understanding of the relations of sites of governance. It provides a fuller account of

those relationships than the current approaches, such as network theory or

epistemic communities.3For example, it can answer questions such as ‘do some

courts become similar over time? And if so, which courts become similar to

others?’, ‘how do courts react to pressures from their environment?’ and ‘how does

the “typical” court look and act?’.

After putting forth the claim that a transnational organisational field of courts is

emerging, this paper will show how concepts developed for studying organisational

fields can contribute to understanding transnational judicial dialogue. This paper will

explore three of those concepts: institutional isomorphism, organisational archetypes

and responses to institutional pressures. After describing each of those concepts, there

will be an explanation of how they can contribute to the study of courts.

Section II will provide a brief introduction to the literature on transnational judicial

dialogue. It will set the stage for the analysis proposed later in the paper. Section III

will introduce the concept of organisational fields. Section IV will use the parameters

of structuration of organisational fields to suggest that a transnational organisational

field of courts is emerging. Section V will give a number of examples regarding the

ways that the concepts developed for analysing organisational fields can contribute to

the research of courts. The final part will summarise and suggest questions for future

research.

2P.J. DiMaggio and W.W. Powell, ‘The Iron Cage Revisited: Institutional Isomorphism and Collective

Rationality in Organizational Fields’, (1983) 48 American Sociological Review 147, 148.

3For network theory as a theory for studying sites of governance, see A. Slaughter (n 1 supra).

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