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Please use this identifier to cite or link to this item: http://hdl.handle.net/1807/31908

Title: Between Activism and Restraint: Institutional Legitimacy, Strategic Decision Making and the Supreme Court of Canada
Authors: Radmilovic, Vuk
Advisor: Hirschl, Ran
Department: Political Science
Keywords: Supreme Court of Canada
Charter of Rights and Freedoms
institutional legitimacy
strategic behaviour
public law
judicial politics
constitutional litigation
legislative-judicial relations
judicial review
political institutions
legal institutions
judicialization of politics
Issue Date: 11-Jan-2012
Abstract: Over the last couple of decades or so, comparative public law scholars have been reporting a dramatic increase in the power and influence of judicial institutions worldwide. One obvious effect of this “judicialization of politics” is to highlight legitimacy concerns associated with the exercise of judicial power. Indeed, how do courts attain and retain their legitimacy particularly in the context of their increasing political relevance? To answer this question I develop a novel theory of strategic legitimacy cultivation. The theory is developed through an application of the institutionalist branch of the rational choice theory which suggests that institutional structures, rules, and imperatives provide behavioural incentives and disincentives for relevant actors who respond by acting strategically in order to attain favourable outcomes. The theory shows that courts cultivate legitimacy by exhibiting strategic sensitivities to factors operating in the external, political environment. In particular, legitimacy cultivation requires courts to devise decisions that are sensitive to the state of public opinion, that avoid overt clashes and entanglements with key political actors, that do not overextend the outreach of judicial activism, and that employ politically sensitive jurisprudence. The theory is tested in the context of the Supreme Court of Canada through a mixed-method research design that combines a quantitative analysis of a large number of cases, case-study approaches, and cross-policy comparisons. One of the central findings of the dissertation is that understanding judicial institutions and judicial policymaking influence requires taking close accounts of external contexts within which courts operate.
URI: http://hdl.handle.net/1807/31908
Appears in Collections:Doctoral

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