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Court cross-fertilization is key to the process of creating a global community of courts.
 

Has globalization affected courts? Do international markets and cross-border litigation make a difference in the way that courts and tribunals do their business?

Scholar Anne-Marie Slaughter says, “yes.”

Slaughter is not only talking about the formation of supranational courts and tribunals. Constitutional, national and regional courts are also beginning to take each other into account when rendering justice. It goes too far to describe the results of these changes as “one global legal system.” However, we can see the development of a community of courts.

What is a community of courts? How does it work?

Characteristics of a New Community of Constitutional Courts

In some ways, courts in different countries have borrowed from each other and influenced each other since colonial times. However, the current process of cross-fertilization among courts has some distinctive features:

  1. Influence works in many directions. While the colonial period witnessed law from powerful nations transplanted to colonized nations, cross-fertilization now works both ways. Decisions of third world courts may influence the courts of superpowers. National courts may provide legal reasoning or perspectives that influence supranational tribunals.
  2. The process is interactive. Judges from different countries are now engaging each other in discussion in conferences and meetings about the practice of law. The interpretation and application of law is not simply a matter of local law and practice, but is, as much, a matter of the work of a global judicial profession.
  3. Judges have new motivations for drawing from other courts. Countries have had different motivations for adopting or adapting law from other countries. Sometimes they were not given much choice (in the case of European colonies). Other times, a new political regime needed to fill in “holes” in their law (for instance, in Eastern Europe after the fall of communism). In the current situation, however, courts are less likely to “borrow” law from other countries as to seek to benefit from the deliberation of other judges.
  4. Courts are beginning to construct a self-conscious community. Judges are beginning to see themselves as more than simply the arbiters of local law. Rather, conferences, meetings and associations provide judges from different countries the ability to enter a dialogue in which they can discuss and begin to define the values inherent in being administrators of the rule of law.

Persuasion Not Power

Court cross-fertilization is not a matter of citing a binding precedent. But, if a court is not forced to take into account the decisions and reasoning of courts in other countries, then why do it?

The statements of three U.S. Supreme Court justices are instructive.

  1. Justice Sandra Day O'Connor admonished U.S. judges to look beyond their own jurisdictions to foreign and international law, not merely for comparative purposes, but to facilitate the flow of international commerce,
  2. Justice Ruth Bader Ginsburg observed, “In the area of human rights, experience in one nation or region may inspire or inform other nations or regions.”
  3. Justice Stephen Breyer said that the experience of other courts may “cast an empirical light on the consequences of different solutions to a common legal problem.”

In short, court cross-fertilization may help judges make better decisions as well as facilitate practical international engagement. An international community of courts encourages judges to look around at other countries for good ideas.

Persuasion is key. It is not a matter of power and formal authority. Indeed, a country's raw power may actually backfire in the realm of judicial cross-fertilization. Judicial decisions outside the U.S. may gain influence simply because they are not American. In some areas of law, the U.S. is an outlier and less likely to be seen as a model or positive influence.

A Single Global Legal System?

Does cross-fertilization mean that law is becoming truly global?

There are trends that appear to be pushing courts toward a more global legal order.

  • Ideas and precedents among constitutional judges around the world are giving rise to a visible consensus in many areas. As this consensus grows, so does its weight for other courts.
  • Even when there is no wide spread consensus on particular answers, consensus is growing regarding the selection of relevant cases. Courts may agree that an influential case in one country or region is relevant, though they may go on to interpret or apply the principles of the case in ways that make sense in the local context.

Should we then expect to see at some future point all courts applying a single set of global laws?

Not likely.

National courts are still essentially local. That is, they make decisions about local law in local situations. This means that local social and cultural factors must play heavily into their decisions. There is no one right answer or solution for every setting and situation. The principle of legal pluralism and legitimate difference applies.

Bottom Line

Current processes of globalization are creating fertile soil for a transnational community of courts, says legal scholar Anne-Marie Slaughter. Current processes of cross-fertilization among courts are unique relative to earlier eras. Persuasion and not power is key. And, while courts in different countries may come to learn from and influence each other, local social and cultural differences make a unified global legal system unlikely.

 
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Reference

Slaughter, Anne-Marie. 2003. “A Global Community of Courts.” Harvard International Law Journal 44:191-219.

 
 
 
 
 
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