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5 Eur. Rev. Int'l Stud. 5 (2018)

handle is hein.journals/epnrvwo5 and id is 1 raw text is: Articles UNDERSTANDING COURTS IN CONTEXT: On the Embeddedness and Interaction of Judicial Bodies in a Functionally Differentiated World Society Andreas Grimmel' University of Hamburg Abstract: Are the numerous judicial bodies that we tend to very generally subsume under international courts or international adjudicative bodies really like-units, or are they rather highly diverse institutions that call for a more careful, not only typological, but also theoretical differentiation? The aim of this article is to make a theoretically grounded contribution to the questions of (a) in what ways international judicial institutions are dependent on the functionally differentiated settings they are embedded in, and (b) in what ways they are influenced and altered by the organisational frameworks of their operation. The starting point of the inquiry will be a critical discussion of systems theory and rationalist approaches, as these approaches involve opposite positions with regards to the embeddedness and interaction of judicial bodies in a functionally differentiated world society: while the former entails an exclusive logic, the latter is essentially based on an inclusive model. The claim is that both models enable us to better understand rather ideal-type cases of how judicial institutions (inter)act in practice. It will be argued that the modus operandi of diverse courts, (arbitral) tribunals, and quasi-judicial institutions is typically subtler and more complex and can be most likely understood - due to their entanglement with other functional settings - as being transclusive or substitutive in nature. Both concepts will be introduced and applied here as parts of a contextualist approach towards understanding international judicial institutions. Keywords: international organisations, contextualism, international courts, Niklas Luhmann, systems theory, rationalism Introduction One of the most influential ideas Niklas Luhmann framed within his theory of social systems was the existence of a world society,2 i.e. a functionally differentiated global system that is constituted by the fact that every meaningful operation in the system has to take the form of communication.3 World society is the occurrence 1 The author thanks Karin Fierke, Gunther Teubner, Armin von Bogdandy and the two anonymous ERIS reviewers for their helpful comments and support. 2 Luhmann 1982, 1997. 3 In this focus on communication, Luhmann differs from other theorists of functional differentiation and world https://doi.org/1 0.3224/eris.v5 il .01 ERIS Vol. 5, Issue 1/2018, pp. 5-27

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