Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts

by Elaine Mak

Overview

Why do judges study legal sources that originated outside their own national legal system, and how do they use arguments from these sources in deciding domestic cases? Based on interviews with judges, this book presents the inside story of how judges engage with international and comparative law in the highest courts of the United Kingdom, Canada, the United States, France and the Netherlands. A comparative analysis of the views and experiences of the judges clarifies how the decision-making of these Western courts has developed in light of the internationalisation of law and the increased opportunities for transnational judicial communication. While the qualitative analysis reveals the motives that judges claim for using foreign law and the influence of 'globalist' and 'localist' approaches to judging, the author also finds suggestions of a convergence of practices between the courts that are the subject of this study. This empirical analysis is complemented by a constitutional-theoretical inquiry into the procedural and substantive factors of legal evolution, which enable or constrain the development and possible convergence of highest courts' practices. The two strands of the analysis are connected in a final contextual reflection on the future development of the role of Western highest courts.

Product Details

ISBN-13:	9781849469876
Publisher:	Bloomsbury Academic
Publication date:	11/05/2015
Series:	Hart Studies in Comparative Public Law , #3
Edition description:	Reprint
Pages:	296
Product dimensions:	6.14(w) x 9.21(h) x 0.61(d)

About the Author

Elaine Mak is Professor of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at the Erasmus University Rotterdam.

Table of Contents

Acknowledgments v

Table of Cases xiii

1 Introduction: Highest Courts in Flux 1

I The Trend of Judicial Internationalisation 2

II Why Do Judges Cite Foreign Law? 3

III Learning from the Views of Judges 6

IV Scope of the Research 8

V Outline of the Book 10

2 Understanding the Development of Highest Courts' Practices: A Constitutional-Theoretical Approach 14

I Constitutional Theory and Legal Evolution 16

A Understanding Legal Evolution through Constitutional Theory 16

B Concept of 'Constitutional (In-)flexibility' 18

II Procedural Aspects of Legal Evolution 20

A Detail of Constitutional Norms 20

B Modalities for Revision of the Constitution 21

C Approach of the Interpreter of the Constitution 24

D Impact of International Law in the Domestic Legal System 26

III Substantive Aspects of Legal Evolution 28

A Democratic Justification of Judicial Decisions 28

i Authority of the Consulted Sources 29

ii Nature of the Judicial Competence 31

B Legal Tradition 32

C Nature of Cases 34

D Effectiveness and Efficiency of Judicial Decision-Making 34

IV Conclusion 35

3 Introducing the, Comparative and Empirical Analysis 36

I Anglo-Saxon Model: A Single Highest Court (United Kingdom, Canada, United States) 36

A Competences of Review 37

i UK Supreme Court 37

ii Supreme Court of Canada 37

iii US Supreme Court 38

B Composition: Judges and Staff 39

i UK Supreme Court 39

ii Supreme Court of Canada 40

iii US Supreme Court 41

C Caseload 42

i UK Supreme Court 42

ii Supreme Court of Canada 43

iii US Supreme Court 44

II French Model: Multiple Highest Courts (France, the Netherlands) 45

A Competences of Review 46

i Courts of Cassation 46

ii Supreme Administrative Courts 47

iii Conseil Constitutionnel 49

B Composition: Judges and Staff 51

i Courts of Cassation 51

ii Supreme Administrative Courts 52

in Conseil Constitutionnel 54

C Caseload 55

i Courts of Cassation 55

ii Supreme Administrative Courts 57

iii Conseil Constitutionnel 58

III Comparing the Courts 59

A Competences of Review 59

B Composition 61

C Caseload 61

IV An Empirical Analysis 62

A Interviewed Judges 62

B The Interviews 64

C Other Sources: Case Law, Speeches and Articles 66

V Conclusion 67

4 Incorporating the Transnational: Judicial Roles, Relations and Working Methods in a Globalised World 68

I Judicial Roles in a Globalised World 69

A Guardian of the Law 69

i Ensuring the Uniform Application of the Law 69

ii Ensuring the Protection of Fundamental Rights 76

B A Developer of the Law 78

i Judicial Authority and Autonomy in a Globalised World 78

ii Horizontal Dialogue: Leadership amongst One's Peers 80

iii Vertical Dialogue: Leadership vis-à-vis the European Courts 80

C Conclusion 82

II International Relations of the Highest Courts 83

A Judicial Networks and Exchanges 83

i UK Supreme Court 84

ii Supreme Court of Canada 85

iii US Supreme Court 88

iv French Highest Courts 90

v Dutch Highest Courts 95

B Individual Views Concerning Globalisation 98

i Involvement in Debate About Globalisation 99

ii Influence of 'Globalist' and 'Localist' Mind-Sets of Judges 102

iii Judicial Politics 106

iv Personal Background 107

C National Judges in International Courts 109

D Conclusion 112

III Working Methods in a Globalised World 113

A Internal Research of International and Comparative Law 114

i UK Supreme Court 114

ii Supreme Court of Canada 115

iii US Supreme Court 116

iv French Highest Courts 116

v Dutch Highest Courts 117

B Role of Counsel, Amici Curiae and Interveners 120

i UK Supreme Court 120

ii Supreme Court of Canada 121

iii US Supreme Court 122

iv French Highest Courts 123

v Dutch Highest Courts 123

C Deliberations 124

i UK Supreme Court 124

ii Supreme Court of Canada 125

iii US Supreme Court 126

iv French Highest Courts 127

v Dutch Highest Courts 128

D Published Judgments 129

i UK Supreme Court 129

ii Supreme Court of Canada 130

iii US Supreme Court 131

iv French Highest Courts 132

v Dutch Highest Courts 135

E Conclusion 136

IV Conclusion 137

5 The Use of Foreign Law in Judicial Decision-Making 139

I Status of Foreign Law 140

A Impact of International Law 141

i UK Supreme Court 141

ii Supreme Court of Canada 144

iii US Supreme Court 145

iv French Highest Courts 146

v Dutch Highest Courts 148

B Role of Comparative Law 150

i UK Supreme Court 150

ii Supreme Court of Canada 151

iii US Supreme Court 154

iv French Highest Courts 158

v Dutch Highest Courts 160

C Conclusion 161

II Use of Foreign Law: Examples from Case Law 163

A Use of International Law 163

i UK Supreme Court 163

ii Supreme Court of Canada 166

iii US Supreme Court 169

iv French Highest Courts 171

v Dutch Highest Courts 173

B Use of Comparative Law 178

i UK Supreme Court 178

ii Supreme Court of Canada 181

iii US Supreme Court 187

iv French Highest Courts 190

v Dutch Highest Courts 194

C Conclusion 197

III Justification of Developed Practices 198

A Judicial Argumentation and the Style of Judgments 198

i Citation of Foreign Legal Materials 199

ii Why Judges Cite Foreign Law 200

iii Methodological Challenges 203

B Selection of Comparative Legal Materials: Tradition, Language and Prestige 206

i UK Supreme Court 206

ii Supreme Court of Canada 206

iii US Supreme Court 209

iv French Highest Courts 211

v Dutch Highest Courts 212

C Conclusion 213

IV Conclusion 213

6 Conclusion: Assessing the Development of Highest Courts' Practices 217

I Constitutional (In-)Flexibility in Action: Procedural and Substantive Explanations for the Development of Highest Courts' Practices 217

A Procedural Explanations 218

i Accommodating Change Through Constitutional Norms 218

ii Accommodating Change Through Constitutional Interpretation 223

B Substantive Explanations 227

i Democratic Justification of Judicial Decisions 227

ii Legal Tradition and the Nature of Cases: Contextual Factors for the Use of Foreign Law 230

iii Effectiveness and Efficiency of Judicial Decision-Making 232

C Conclusion 233

II Epilogue: The Future of Judicial Internationalisation 234

A Judges View of the Future 234

B Possible Scenarios for the Future 237

Annex: Interview Design 240

Bibliography 243

Index 257

Editorial Reviews

Elaine Mak's excellent book brings an important contribution to the current debate on judicial decision-making in a globalized world.

...the reviewers strongly suggest the reading of this brilliant book which has all the qualities for becoming a "must-read" for...scholars and practitioners
Canadian Journal of Administrative Law and Practice, volume 27, 2014

It is a very meticulous and welcome, but specialized, addition to the globalization of law literature...

...in meticulously tracking down the prevalence of references to foreign and transitional law in the work of national judges, Professor Mak has pointed to something new in the legal world.

...the virtues of this book are many...[it] contributes importantly to what I hope will be a growing field of "trans-Atlantic+? studies.
Law and Politics Book Review

Mak's comparative study offers a significant contribution to the scholarship on the use of foreign legal materials in legal developments. The close scrutiny of the inner workings of the highest courts also make it a welcome addition to the field of comparative judicial studies. The book certainly merits attention from both lawyers and political scientists.
International and Comparative Law Quarterly

From the Publisher