Judicialization of policy processes and decision-making: towards a taxonomy

Judicialization is commonly understood in two ways. Something judicializes if it previously was outside the realm of law and it becomes a legal phenomenon. In the field of international relations, judicialization has been used in this way. Judicialization is also understood as appealing to court to solve a particular dispute. In both ways, policy and decision making in the field of spatial planning have judicialized in the Netherlands during the past decades. Environmental law and spatial planning law now canalize decision making to a large extent, and disputes are increasingly settled by courts. In this paper we take a closer look at the contexts in which spatial planning disputes judicialize. The existence of a transformative effect of judicialization of a dispute policy-making is undisputed, both in the academic community as in practice. However, we argue for the need to distinguish different types of judicialization. This is necessary in order to understand why some disputes entangle when they judicialize, while others do not, and some decision making processes benefit from judicialization in terms of legitimacy, while others do not. Based on an analysis of four spatial planning cases in the Netherlands we propose a taxonomy of judicialization.