PhD defence M.M. (Maurits) Helmich

Dissertation in short:

Common sense wisdom and legal dogma alike dictate that judges should not get involved in the game of “politics”. Still, the precise applied meaning of this norm remains rather unclear. In modern-day democracies, courts play a key role in interpreting and (co-)defining the central norms that govern society. That role, one might assert, is in itself inherently political. The question, then, is how sensible it remains to talk and think about adjudication as an activity that could (let alone should) ever be “apolitical”. 

Maurits Helmich argues that norms of apolitical adjudication need not be rejected outright: they make sense as technical legal concepts. Still, there is a catch: coherent as political/apolitical distinctions may be, the way one uses and operationalizes them in practice reflects normative commitments that are (paradoxically) themselves politically colored.

To substantiate his skepticism towards ambitions to truly depoliticize adjudication, Helmich delineates three main ways in which political quarrel and ideology necessarily informs adjudication. First, adjudication is “political” because it is a constitutional practice: legal systems are not neutral normative environments, but rather power-laden social constructs that judges actively affirm. Second, even where the authority of the constitution as such is taken for granted, judges remain political players to the extent that they get to choose what interpretation of the law is authoritative. Third, judicial institutions play an inherently political role insofar as they have to answer questions of shared political morality – say, about rights to wear a burqa, or to perform abortion.