- When Legal Orders Collide: The Role of Courts
The growth and interaction of legal orders beyond the state has precipitated considerable interest among scholars and practitioners. The resulting discussion both in the academy and in the upper reaches of government about the intersection of national legal orders with new areas of non-national law has led to various predictions about possible ramifications of this phenomenon. In recent years, the importance of these transnational questions has grown concurrently with the expansive creation and heightened activity of supranational and global organizations.1 Some have gone so far as to herald a new global law, and others have elaborated upon its contours.2 Sabino Cassese begins his latest book, When Legal Orders Collide: The Role of Courts, by tackling a fundamental question underlying these active dialogues: Who holds together the legal orders of the world? What follows is a captivating exploration of the place of quasi-judicial bodies in navigating and directing divergences across the legal orders.
As a judge on the Constitutional Court of Italy and a renowned scholar of Italian and global administrative law, Cassese brings to the book deep insight, shaped by his many years of experience. This latest work, a natural extension of Cassese's prolific portfolio, elaborates on the role of courts in bridging legal orders. In his prior works, Cassese examined ways in which supranational law operates in national legal systems through procedural principles, as well as through the [End Page 413] institutionalization of substantive global administrative norms in domestic settings.3 Demonstrating his wide-ranging expertise, Cassese positioned himself at the forefront of the scholarly debate on "legal globalization," arguing in 2005 that a "unitary cosmopolitan legal system is not on the horizon, nor is it perhaps among current ambitions"; rather, he envisaged a redevelopment of norms as legal orders evolve and coexist. His latest project builds on his predictions and seeks to understand the interactions, or as he terms it, collisions, among the legal orders encompassing the state, as well as those beyond it.
Cassese's two foundational observations—that legal orders are diverging, and that courts are players in shaping that movement—are neither novel nor original nor does Cassese claim them to be. Scholars have debated the fragmentation of international law in a variety of contexts.4 Likewise, the importance of transnational quasi-judicial bodies to global governance has been widely recognized in international law and international relations scholarship.5 Cassese situates his understanding of fragmentation in the international relations' literature, arguing that the traditional meaning of "sovereign" is being diluted and that a concept of layered sovereignty is taking its place. The challenge, according to Cassese, is for the resultant pluralism to be sustainable. Cassese's contribution in this book is not his recognition of the dynamism of this movement but rather his seizure on the role of individual courts, and judges in particular, as critical actors in resolving new types of conflicts regulating the interaction of legal orders.6
This short book, originally given as lectures in Florence in 2008 at the Istituto di Scienze Umane and the Institute for Research on Public Administration, is divided into five chapters. In chapter one, Cassese [End Page 414] outlines his assumptions and the basic premises of his analysis. He argues that law has replaced politics as the primary tool of interaction and influence in the international arena. He makes note of the proliferation of nonstate courts, though his focus is not on the overlapping jurisdictional puzzles that have evolved, a challenging development that he acknowledges. Rather, Cassese's project studies the contribution of judges to the establishment of a "connective tissue" among legal regimes. Citing the emergence of regional, supranational, and global institutions (his "legal orders") as the outputs of a pluralization of power, he claims that judges have replaced diplomats as the primary actors in governance. The concern, as he frames it, is to "ascertain whether they [judges] are succeeding in regulating the pluralization of public power and in contributing to the development of a common legal order."7
Cassese moves from outlining...