Dr. Satang Nabaneh
Founder & Director, Law Hub Gambia
Author’s Note: This symposium on judicial globalization is published on www.satangnabaneh.com. The introduction is followed by four posts exploring the role and impact of foreign and international law for constitutional adjudication.
“Globalization is thought of more in terms of corporations than courts; more in terms of global markets than global justice”.
Around the world, there is a recognition that globalization is changing the contours of law and creating new legal institutions and norms. The need for global taxonomy is more important especially in light of legal globalization in which knowledge transfer is needed not only in different areas of laws but across different legal systems. In this regard, there is increasing dialogue between judges; cooperation between national judicial authorities and other foreign courts; and international and regional courts, resulting in a globalized jurisprudence. However, judicial globalization has attracted much political, judicial, and academic attention and controversy. There are still on-going debates about the uses and abuses of comparative foreign case law. Part of reflecting on how we are using existing legal mechanisms to effectively protect human rights in The Gambia lies in the exploration of the intermingled nature of human rights systems within a global world.
The series will broadly focus on one of the most effective mechanisms of judicial globalization: constitutional cross-fertilization in which Courts cite each other’s precedent on constitutional issues. I explore The Gambia’s attitude in the usage of transnational materials. Drawing from the unique case study of South Africa, I ask the following questions:
1. What is the proper and legitimate use of foreign and international legal sources?
2. In the wake of the departure from traditional transplant, how has the South African
Constitutional Court evolved from being a “borrower” to one of the most influential “lender” courts on constitutional matters?
In recent times the South African and the Canadian constitutional courts have both been highly influential, apparently more so in recent decades than the U.S. Supreme Court and other older and more established constitutional courts. In the present conditions of globalization, there is much utility in a discussion on The Gambia’s Supreme Court’s attitude and practice of transnational legal argument, having particular regard to human rights in The Gambia.
To respond to these questions, I will explore the nexus between judicial globalization and human rights and the relationship between the two. Second, I will provide a theoretical background on transformative constitutionalism, guided by the work of American Scholar Karl Klare, who first propounded the concept in 1998 urging South African judges to interpret and apply the Constitution in such a way as to bring about social justice, and to create an egalitarian society. This is a bottom-up process of globalization conducted by the world community of judges. Third, I will look at the role and impact of international and foreign law on adjudication in South African Courts- mainly at the Constitutional Court. This part deals with the constitutional developments in the application of international and foreign law. I will then l explore the ability of the Supreme Court of The Gambia in capturing and crystallizing the work of their fellow constitutional judges around the world.
Over the course of the next four posts, I hope to answer these questions. This series on judicial globalization is premised on the belief that innovative provisions in constitutions coupled with the willingness of judges in citing foreign case law serves as one of the most suitable tools that foster the migration of human rights around the globe and from one nation to another, through a bottom-up process of globalization conducted by the world community of judges.
The goal of this series is to contribute to bringing scholarly attention to this issue given the dearth of scholarship in The Gambia in this regard. I hope that this series is thought-provoking and invite you to engage in this discourse, as I leave you with further questions to explore.
Judicial globalization and human rights
The UN General Assembly defines globalization as a “complex process of structural transformation, with numerous interdisciplinary aspects, which has an impact on the enjoyment of civil, political, economic and cultural rights, including the right to development.” It further considers globalization to be “not merely an economic process, but that it also has social, political, environmental, cultural and legal dimensions, which have an impact on the full enjoyment of all human rights.” According to Viljoen, “international human rights law constitutes the collective responsibility of humanity’s conscience and captures a shared vision for a humane world.” In the context of increasing globalization, international human rights law is becoming a part of international cooperation and collaboration.
Globalization further applies to and affects the law. This is seen through the transcending of legal ideas across national borders encompassed in judicial globalization. The concept of judicial globalization has generated considerable interest among legal academics and judges. Anne-Marie Slaughter, the leading proponent of judicial globalization, defines it as a “diverse and messy process of judicial interaction across, above and below borders, exchanging ideas and cooperating in cases involving national as much as international law”. Slaughter explains the process to include all activities:
from the most passive form of cross-fertilization to the most active cooperation in dispute resolution, requires recognition of participation in a common judicial enterprise, independent of the content and constraints of specific national and international legal systems. It requires that judges see one another not only as servants or even representatives of a particular government or polity, but as fellow professionals in a profession that transcends national borders. This recognition is the core of judicial globalization, and judges, like the litigants and lawyers before them, are coming to understand that they inhabit a wider world.
Slaughter’s description of the process is apt. On the issue of cross-fertilization, which is mainly done through the use of comparative law by domestic courts, I disagree with her assertion that it is the most passive form of judicial globalization. She, herself, has noted that “increasing cross-fertilization of ideas and precedents among constitutional judges around the world is gradually giving rise to a visible international consensus on various issues–a consensus that, in turn, carries compelling weight.” Cross-fertilization is not a new phenomenon. However, the practice has expanded due to the formation of new democracies and associated constitutional courts. Justice La Forest of the Canadian Supreme Court representing the mindset of the global judge shared his enthusiasm:
Nevertheless, the result of the developments I have described ? and there are others ? is that in the field of human rights, and of other laws impinging on the individual, our courts are assisting in developing general and coherent principles that apply in very significant portions of the globe. These principles are applied consistently, with an international vision and on the basis of international experience. Thus, our courts ? and many other national courts ? are truly becoming international courts in many areas involving the rule of law. They will become all the more so as they continue to rely on and benefit from one another’s experience. Consequently, it is important that, in dealing with interstate issues, national courts fully perceive their role in the international order and national judges adopt an international perspective.
This clearly shows that international human rights law has evolved beyond the national level to three tiers: sub-regional, regional, and global levels. However, countries continue to bear the primary responsibility for human rights. Greater internationalization in an increasingly globalized world makes the law of other states more relevant. International sources can thus serve as persuasive authority in aiding domestic decisions on human rights issues. In the same vein, Aharon Barak, President of the Supreme Court of Israel on the importance of comparative law stated:
I have found comparative law to be of great assistance in realizing my role as a supreme court judge. The case law of the supreme courts of the United States, Australia, and Canada, of United Kingdom courts, and of the German Constitutional Court have helped me significantly in finding the right path to follow. Indeed, comparing oneself to others allows for greater self-knowledge…. Examining a foreign solution may help a judge choose the best local solution. This usefulness applies both to the development of the common law and to the interpretation of legal texts.
Barak’s approach connotes a broader vision focused on the role of judges, which maybe a more attractive approach for many judges. On the other hand, Chief Justice McLachlin of the Canadian Supreme Court noted that “[in]the Canadian experience ? one that has, from the beginning, accepted foreign law as capable of providing useful insights and perspectives. Foreign law is used selectively, where it is relevant to and useful in resolving dispute.” The Canadian Justice reflects a sentiment that some U.S judges have expressed as well. This is through a very utilitarian approach to using foreign cases in which foreign law serves as an inspiration and is used only when it is helpful.
However, in recent times, both the South African and the Canadian Constitutional Courts have been highly influential, apparently more so in recent decades than the U.S. Supreme Court and other older and more established constitutional courts. This rising prominence of these other courts and decline of American influence might point to the opposition of the American courts to the use of foreign sources, which is grounded on exceptionalism and originalism, or as succinctly put by Justice Ginsburg “you will not be listened to if you don’t listen to others”
There have been some decisions in the past that referred to international sources and subsequent opposition. An example can be seen in the case of Atkins v. Virginia, which dealt with the issue of whether the execution of mentally retarded offenders was unconstitutional. Justice Stephens in writing for the majority noted the international communities’ disapproval in the footnotes. In return, both Chief Justice Rehnquist and Justice Scalia dissented and stated that:[s]eldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members. … The views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the “world community,” whose notions of justice are (thankfully) not always those of our people. We must never forget that it is the Constitution for the United States of America that we are expounding. … [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.
In Lawrence v. Texas, the majority relied on international sources to overturn a Texas statute that criminalized sodomy. In the case of Roper v. Simmons, the majority drew on international criticism of the death penalty for juveniles to find that it should be prohibited in the United States as cruel and unusual punishment under the Eighth Amendment. Justice Kennedy, writing for the majority, embarked on a wide-ranging review of the abolition of the juvenile death penalty by nations that “share our Anglo-American heritage”, and by “leading members of the Western European community”, and referred as well to multi-lateral conventions of the UN and others. He observed that the United States was the only country in the world that continued to give official sanctions to the juvenile death penalty and acknowledged the “overwhelming weight of international opinion” against it. He concluded that “[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”
Justice Scalia’s dissent begins by describing the majority opinion as “a mockery” of the framers’ intentions, and a “legislative judgment” in which the majority has “look[ed]over the heads of the crowd and pick[ed]out its friends”. In his view, the premise that American law should conform to the laws of the rest of the world “ought to be rejected out of hand”. Stating that [t]o invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry.” He adds:
To begin with, I do not believe that approval by “other nations and peoples” should buttress our commitment to American principles any more than (what should logically follow) disapproval by “other nations and peoples” should weaken that commitment. More importantly, however, the Court’s statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our “fidelity” to the Constitution, our “pride in its origins,” and “our own [American] heritage.” On the contrary, they are cited to set aside the centuries-old American practice? a practice still engaged in by a large majority of the relevant States? of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources “affirm,” rather than repudiate, is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. “Acknowledgment” of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment? which is surely what it parades as today.