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  • The ‘Globalized Judiciary’ and the Rule of Law
  • Ken I. Kersch (bio)

Like everything else, constitutional reasoning is going global. In the U.S. Supreme Court's recent affirmative action and gay rights decisions, several justices made prominent reference to foreign practices, court decisions, and international agreements (both those ratified by the U.S., and those not).1 While, strictly speaking, not unprecedented, these allusions were significant in the current context because they heralded the arrival at the Court of a vast, decade-long vanguardist intellectual project aimed at globalizing American law an0d the American judiciary. In the past, similarly ambitious projects, like the sociological jurisprudence and legal realism of the late nineteenth and early twentieth centuries, have radically transformed American law. This latest campaign raises vital questions about the meaning of self-government under the rule of law in a "globalized" world. In the fog of enthusiasm about the arrival of "a new world order," such questions have yet to be seriously addressed.

Some Historical Context: Why Now?

In the last few years, legal scholarship has swelled with discussions concerning the relationship between domestic legal decisions and foreign and international practices and law. Spirited debates about the applicability of treaties and international agreements and the law of nations to domestic legal disputes have attracted the attention of law reviews. Discussions of the significance of foreign public opinion and foreign and international court decisions for constitutional decision-making, including the propriety of "constitutional borrowing," have triggered frissons of interest. Denunciations of the "provincialism" and "legal xenophobia" of the American judiciary has become de rigeur. In related initiatives, foundations and political activists have, in turn, sponsored a proliferating number of workshops and seminars aimed at persuading lawyers and judges to adopt a global sensibility in arguing and deciding domestic constitutional cases. Why this intense and sudden interest in these once arcane subjects and formerly unseen problems? And why now?

In its broadest sense, the modern interest in deepening our comparative understanding of constitutions began after the Second World War, when, following dark days, the free world's sovereign nations (including, in time, the newly de-colonized nations) manifested a resolute new commitment to constitutional self-government. Sovereignty - understood then as a pre-condition of constitutional democracy - was, in this context, highly valued. So long as free nations were committed to a few bedrock rule of law and democratic principles (principles set out in horatory fashion in the U.N. Charter and a series of prominent international declarations), the choice of a set of institutions was considered the province of sovereign, self-governing states. A comparative perspective was judged useful because the best choices concerning institutional design were made in light of learned understandings of the institutions and experiences of others.

At the same time, certain commitments of the post-war order cut against this renewed commitment to sovereignty and the claims of constitutional self-government, at least under certain circumstances. The human rights aspirations in the U.N. Charter and the Universal Declaration of Human Rights, although first articulated in a form respectful of national sovereignty, were framed in reaction to the legal positivism used to justify the Nazi Genocide. For a significant number of post-war scholars, intellectuals, and politicians, the post-sovereign, post-positivist thrust was the era's most significant, and potentially transformative, development. While some, like Reinhold Niebuhr, preached caution and a realistic assessment of human nature and defended the future of sovereign, self-governing nation states, these intoxicated figures proposed a cascade of visionary schemes for the establishment of "cosmopolis," or a "world government." Such calls, which reached a fever pitch in "the five plastic years between Hiroshima and Korea," became "a major national pastime of especially the English-speaking intelligentsia." "The Chorus grew until it seemed for a brief, deceptive moment, irresistible." Far from celebrating the United Nations as a coming together of independent, self-governing states, "one worlders" lambasted the U.N. as a tragically missed opportunity to abolish sovereignty and institute a world state. Others of a more managerial or technocratic cast, who saw themselves as less utopian and more grounded, spoke not of "cosmopolis" or "world government," but rather of a "new...


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pp. 17-23
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