25 June 2013
BLOG POST: Transnational Judicial Dialogue
The MultiRIghts program at the University of Oslo in Norway hosted a conference on which included participants from law, political science, and philosophy. Papers addressed to what extent judges cite foreign and/or international case law and norms in their own decisions. Courts from Eastern Europe, Latin America, and Canada were examined. The idea of transnational judicial dialogue was portrayed as a cosmopolitan project, but concerns were raised about hierarchical tendencies and the impact of culture, language, power, or other factors impacting citation tendencies. There was a panel of national judges, including Lord Carnwath of the UK Supreme Court (who explained how he faced appeals from different corners of the earth involving Maori law or the Napoleonic code), Andreas Paulus of the Bundesverfassungsgerecht (who noted that in a case involving the right of refugee children to education, there was no international authoritative guidance available so the court had to set the standard itself), and Rafaele Sabato of the Court of Cassation of Italy (who explained how contradictory positions among the different national courts rendered application of European standards impossible). There was examination of the evolution of same-sex family law in Europe through vertical and horizontal dialogue, concern was raised that LBGT NGOs were more interested in the legislative process than the judicial path, complicating matters. Finally, there was a panel with three judges from the European Court of Human Rights, Luis Lopez Guerra, Erik Møse, and Angelika Nussberger who gave insight as to the potential influence of other regimes, including international criminal law. Beth Simmons of Harvard University reminded the participants that it is important to keep in mind the importance of identifying the intended audience of the judicial output- are judges seeking legitimacy among each other, are they seeking to convince the executive or the legislature, are they addressing the parties, or are they concerned with the view of the public at large? Most striking to me was a paper by Azizat Amoloye-Adebayo who described limitations to the potential of transnational judicial dialogue due to ideological barriers in Islamic jurisdictions, leading one to consider whether the phenomenon is indeed most relevant to the Anglo-European legal community. Lord Carnwath pointed out that judges are seeking to solve problems, and some are simply harder than others, leading one to seek assistance in identifying solutions beyond borders, hence there may not necessarily be a grand theory behind it all.