Highest Courts and Globalisation

, by Edited by Sam Muller , Sidney Richards

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ISBN: 9789067043281 | 9067043281
Cover: Hardcover
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Highest national courts were conceived at the pinnacle of the national court hierarchy, with one of their main tasks being the maintenance of a degree of legal coherency within the national legal system. Very often such courts also have the ability to declare national laws in violation of the constitution or international treaties. The interactions within societies and legal systems have consequences on highest national courts, which also increasingly interact with each other. This book investigates the theoretical and practical implications of these phenomena, offering a unique and unprecedented perspective on the issue of highest courts and globalization from the world's leading scholars and judges.

Foreword	p. V
Acknowledgements	p. VII
List of Abbreviations	p. XIII
Introduction: Globalisation and Highest Courts	p. 1
Introduction: Globalisation and the Law	p. 1
The Internationalisation of the Judiciary	p. 2
Highest Courts and Globalisation: Themes and Issues	p. 4
Unity and coherence	p. 5
Frameworks of judicial legitimacy	p. 11
Novel concepts and paradigms?	p. 13
Institutional resources	p. 18
Concluding Observations	p. 18
Trans-Judicial Dialogue in a Global World	p. 21
Introduction	p. 21
Why Is It Happening?	p. 23
Historical reasons	p. 23
Families of legal systems	p. 23
Strengthening legal systems	p. 25
Contextual reasons	p. 25
Political reasons	p. 28
Strategic reasons	p. 29
Utilitarian reasons	p. 29
How Is It Happening?	p. 30
The development of judicial diplomacy	p. 30
Governmental cooperation	p. 31
Non-governmental cooperation	p. 32
The development of the international dimension in judicial training	p. 33
Training	p. 33
Exchanges	p. 34
Universities	p. 35
Information and communication technology	p. 35
The development of a comparative judicial methodology	p. 36
How Far and within Which Parameters?	p. 37
Ideological limits	p. 37
Elitism	p. 37
Nationalism	p. 38
Exclusion	p. 38
Judicial limits	p. 38
The incommensurability of legal systems	p. 39
The judge's neutrality in legal training	p. 39
Institutional limits	p. 40
Conclusions	p. 40
The Globalisation of the Law and the Work of the Supreme Court of Canada	p. 41
Introduction	p. 41
The Use of Non-Domestic Legal Resources in Canada	p. 42
International instruments and decisions	p. 42
Judicial borrowing	p. 46
Formal and Informal International Networks	p. 52
Conclusion	p. 54
The Widening Horizons of Litigation in Britain	p. 55
Judicial Co-operation and Communication in the Context of the Hague Conventions	p. 59
Introduction	p. 59
The Hague Conference on private international law	p. 59
The International Network of Judges	p. 60
Involvement of Judges in Developing and Reviewing the Operation of Hague Conventions	p. 62
International Judicial Conferences	p. 62
An International Approach to Interpretation of the Hague Conventions	p. 64
Conclusions	p. 65
Judicial Globalisation: Supreme Court of India	p. 67
Accommodating Unity	p. 85
Unity and Diversity	p. 85
Accommodating Unity	p. 88
Reconciling Legal Unities	p. 92
Conclusion	p. 97
Treating Like Cases Alike in the World: The Theoretical Basis of the Demand for Legal Unity	p. 99
A Bracing Environment	p. 99
The Lack of Argument	p. 100
Learning from Others	p. 101
A Need for Harmonisation?	p. 105
Treating Like Cases Alike	p. 107
The Agency Problem	p. 107
The Top-Down Approach	p. 108
The Bottom-Up Demand for Consistency	p. 109
The Human Rights Community	p. 110
Loose or Tight Consistency?	p. 112
Conclusion	p. 113
Justice at a New Scale: Introducing a Conceptual Framework for the Analysis of Highest Courts' Role in a Globalised Context	p. 115
Introduction	p. 115
The Changing Role of Highest Courts in a Globalised Context	p. 117
Two types of highest courts: Supreme courts and constitutional courts	p. 117
A changing role under the effects of globalisation	p. 118
The development of new practices	p. 120
The Theoretical Framework for the Analysis: Constitutional Flexibility	p. 121
The constitution and changing norms	p. 122
A frame of reference for a comparative constitutional law analysis	p. 123
Some methodological considerations	p. 124
Conclusion	p. 126
The Inevitable Globalisation of Constitutional Law	p. 129
Introduction	p. 129
Top-Down Processes of the Globalisation of Constitutional Law	p. 131
Bottom-Up Processes of the Globalisation of Constitutional Law	p. 134
Qualifications: Counterpressures on the Supply Side	p. 138
Races to the Top and Bottom, and Elsewhere	p. 144
Conclusion: Globalisation of Domestic Constitutional Law and the Separation of Powers	p. 146
Is the Separation of Powers the Basis for the Legitimacy of an Internationalised Judiciary?	p. 149
Introduction	p. 149
Four Objections	p. 150
The variability of the 'separation of powers' as a concept	p. 150
The variability of the 'judiciary' as an institution	p. 151
The variability of 'internationalisation' as a legal context	p. 153
Difficulties with the concept of legitimacy as an abstraction	p. 156
Concluding Remarks: Legitimacy and Fundamental Rights	p. 158
Going Global to Preserve Domestic Accountability: The New Role of National Courts	p. 163
Introduction	p. 163
The Impact of Globalisation on National Decision-Making Processes	p. 164
Judicial Cooperation - Emerging Practice	p. 169
Reviewing global counterterrorism measures	p. 170
Environmental protection in developing countries	p. 173
Coordinating the migration into destination countries	p. 176
Protecting socio-economic rights in developing countries	p. 180
The potential of and limits to further cooperation	p. 181
Assessing the Legitimacy of Inter-Judicial Coordination	p. 183
Conclusion	p. 186
List of Contributors	p. 187
Table of Cases	p. 193
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Highest Courts and Globalisation

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