Courts and Globalization

There is inevitably a problem of terminology. A professor of government once said that federalism "is what political scientists talk about when they talk about federalism,"¹ and one could add that globalization is what political scientists (and lawyers) talk about when they talk about globalization. Moreover, the more one reads about globalization the more uncertain one is about the underlying assumptions behind the use of the term; and it is particularly difficult to assess the changing role and responses of the national courts of law in the face of globalization. One looks in vain for globalization as an item in the index of leading works—certainly in the United Kingdom—on constitutional and administrative law; but there is at the same time a growing recognition of the global implications of many areas of law hitherto regarded as part of national legal systems, as well as an acceptance of the enhanced role of international bodies and tribunals.

Before one is submerged, however, in the welter of considerations touching on international trade, criminal law, privatization, deregulation, international arbitration, the settlement of disputes, the impact of public international law, the protection of the environment, the Internet and the revolution in technology, international cooperation, regional cooperation, terrorism, antitrust laws, and so much else, it is perhaps desirable to look at some recent cases—in the United States, in South Africa, in the United Kingdom, and in Canada—where values or techniques have been adopted and used in national courts in a way not anticipated only a short time ago. This is not to trespass into a discussion at this stage of adjudication by external institutions. The immediate concern is with the possible internationalization of national laws.

In May 2002, Justice Sandra Day O'Connor addressed the Annual Meeting of the American Law Institute on "the internationalization of American law," and her talk—in the words of Michael Traynor, the President of the ALI— "presaged the decision of the Supreme Court a month later in Atkins v. Virginia ."² In Atkins, ³ the Supreme Court of the United States held 6-3 that the execution of mentally retarded criminals constituted cruel and unusual punishment under the Eighth Amendment of the Constitution. In the opinion delivered by Justice Stevens on behalf of the majority, it was declared that a national consensus had developed against such executions. Particular attention was paid to the fact that this view was supported by religious and professional organizations within the United States and also by the world community where the imposition of the death penalty for crimes committed by mentally retarded offenders is "overwhelmingly disapproved."⁴ One of those dissenting, Chief Justice Rehnquist, failed "to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court's ultimate determination."⁵ Justice Scalia, also dissenting, spoke of the Court's "embarrassingly feeble evidence of 'consensus'" and of the irrelevance of the practices of the "'world community' whose notions of justice are (thankfully) not always those of our people;" and, more generally, he rejected the Court's "incremental abolition" of the death penalty.⁶ A not-dissimilar division of views about recourse to trends or decisions in other countries appears in Lawrence v. Texas .⁷

In spite of the severity of the dissent by Justice Scalia in the Atkins case, the issues raised in many contexts are bound to reflect globalization or internationalism—not in the sense of comparative law or even of regional law such as that developed by the European Court of Justice, but rather in the sense of cultural standards or values emerging in several countries and influencing each other. The Supreme Court of the United States is receptive to arguments of culture. In Dickerson v. United States , for instance, Chief Justice Rehnquist, delivering the opinion of the court, said that " Miranda has become embedded in routine police practice to the point where the warnings have become part...