3 - The Argument from Systemic Epistemic Superiority

Summary

Chapter 3 targets another challenge to international courts' intervention: the argument that international courts do not make better decisions than national bodies. The chapter identifies a set of circumstances in which international courts, solely because of their institutional position and regardless of the proficiency of their judges, are actually able to make better decisions than national courts. The core of the argument is the Condorcet Jury Theorem, which suggests that a majority decision within a group is likely to be superior to the decision of each individual decision-maker, provided that each decision-maker decides independently. If national judges try to learn from comparative law, they violate the independence condition because they learn from courts who followed other courts instead of deciding independently. If, instead, national courts decide independently and an international court follows the majority position – as the European Court of Human Rights does when it uses the Emerging Consensus doctrine – the decisional benefit of the Jury Theorem is fully realized.