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Creating a Global Community of Courts
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:
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.
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.
Should we then expect to see at some future point all courts applying a single set of global laws?
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.
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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Slaughter, Anne-Marie. 2003. “A Global Community of Courts.” Harvard International Law Journal 44:191-219.
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