From Empire to Globalization. .. and Back? A Post-Colonial View of Transjudicialism

From Empire to Globalization: The New Zealand Experience presents a picture of a government at a fascinating historical moment—achieving full status as an independent sovereign, ridding itself of the last vestiges of colonialism, just as the forces of globalization are changing in such dramatic ways what sovereignty means. Looking at this moment, Professor McLean analyzes not globalization as an abstract force, but rather the deep institutional effects that globalization has had on one nation's internal sovereignty. Her examination of such developments as the expanded role of New Zealand's judiciary in interpreting human rights instruments, and the means by which international economic instruments are incorporated into national legislation, reveals the impact of globalization on New Zealand's system of parliamentary sovereignty as well as the restraints that it imposes on the exercise of executive and legislative autonomy in the country. Throughout, her paper exposes ways in which certain elements of globalization echo elements of the country's earlier colonialism.

Much of Professor McLean's paper discusses the particular challenges that globalization presents to the country's judicial system. In New Zealand courts, the influence of the colonial institutions that bound New Zealand to an empire is fading,¹ while international law—which will bind New Zealand to the global community—is gaining strength. One aspect of this phenomenon that Professor McLean discusses is the process by which the common law has become "more permeable to human rights and other international law norms."² This process is part of a larger process of judicial globalization, and a question her paper raises is what the experience of the judiciary in New Zealand might tell us about judicial globalization more generally—how that experience might be used to test some of the claims that are being made regarding the emergence of a global community of courts. In this comment, I will explore the ways in which the post- colonial view of globalization that she presents exposes the issues of power and status that continue to underpin transjudicialism.

Scholars analyzing the emerging transjudicial community point to a variety of ways in which courts have become more global, including the increase in formal and informal cooperation between courts (and individual judges) in different jurisdictions, rearticulations of the notion of judicial comity in litigation involving private parties, and the development of supranational tribunals.³ One of the major pillars supporting this global community is a process that has been described as "constitutional cross-fertilization."⁴ This cross-fertilization develops as national courts around the world look to foreign and international law in adjudicating constitutional issues, particularly in the area of human rights. Thus, the developments that Professor McLean identifies as affecting the internal sovereignty of New Zealand (for instance, the incorporation of international human rights norms into New Zealand's Bill of Rights)⁵ are part of the creation of this external global judicial community.

As observers of this phenomenon point out, the use of foreign or international law in national courts is not entirely new—and, indeed, the example most often pointed to of "old" style cross-fertilization is the role of imperial law in the courts of the colonies. But now, as Anne-Marie Slaughter and others have argued, a different kind of cross-fertilization is developing—in their view, different both as to its processes and as to its motives. The argument is that these differences really do distinguish globalization from empire, marking the ways in which the system of international law supporting conquest and colonization has been replaced by a cosmopolitan, egalitarian system of international law.

The process of cross-fertilization across courts today is of course vastly different from what it was in the colonial era. As Professor McLean's paper notes, it was critical that in all parts of the British Empire, the interpretation of the law be "as...