COMPARATIVE LAW, GLOBALIZATION, and a QUASI-UNITED LEGAL SYSTEM
By: Gerald F. Witherspoon, Sr. 20141204
International law aims to govern the relationships between states (Slaughter 2003, 191). There may be different laws and legal interpretations in different legal jurisdictions and courtrooms, but the institutions themselves and the legal professionals (e.g., judges) who work within them share a common core; the resolution of legal disputes.
Globalization has rapidly increased the pace of information travel, state borders have become increasingly porous, and transnational disputes have reached unprecedented proportions. In regards to a unified jurisprudence or legal system, the process of unification has already occurred (intensified by globalization), albeit partially, throughout the global community.
National and international judges are increasingly exposed to domestic legal issues which have international ramifications and foreign cases which have domestic implications. Through increased interactions, judges are progressively viewing themselves as members of a per se global common and recognizing their ability to utilize one another resourcefully to enhance their independent dealings.
As Anne–Marie poignantly asserted in A Global Community of Courts, “They cite each other not as precedent, but as persuasive authority. They may also distinguish their views from the views of other courts that have considered similar problems. The result, at least in some areas such as the death penalty and privacy rights, is an emerging global jurisprudence” (2003, 193).
Still further, citations of foreign decisions in a supreme or constitutional court, and recognition of national courts as decision-enforcers by an international tribunal, progressively erodes the borders of national and international law (Slaughter 2003, 194). Anne–Marie demonstrated how this has already occurred by spotlighting a death penalty case by the South African Constitutional Court which cited supreme-court decisions from Canada, Germany, India, Hungary, and Tanzania (Slaughter 2003, 195).
It may be, however, accurately assessed that others have remained ostensibly removed from band-wagoning the notion of constitutional cross-fertilization. This fact is made evident in, Comparative Law in the Construction of Constitutional Rights, when David O’Brien cited Justice Scalia’s position: “Comparative analysis is inappropriate to the task of interpreting a constitution” (Jackson, Tolley, and Volcansek 2010, 8).
Some of the obstacles to getting domestic courts to adopt internationalized laws include different approaches to the same legal problem, lack of judicial comity, inadequacy of forums, and domestic politics and conflict (Slaughter 2003). More clearly, states continue to retain an interest in maintaining sovereign control of their territory and to remain free from external interference. This creates tensions when litigants (and their representatives) involved in private international legal matters that derived from a situation that spanned approximately 10 separate countries, attempt to decide which jurisdiction is most favorable to their outcome. In some cases, individual rights can only be protected by allowing such individuals to be tried in favor or against the preference of the domestic jurisdiction or laws. This remains especially true in cases where a certain individual may have fled their homeland to escape gross human rights violations.
In similar cases, some courts and forums have been determined unethical, incompetent, or inadequate to establish a fair trial and thus their laws have been sidestepped (Slaughter 2003, 208). Still further, judicial comity is choked off when two friendly or opposing states share a conflicting interest in having a certain case adjudicated within their respective jurisdictions (e.g. Slaughter references a case between U.S. and Japan on page 207).
In other cases where a conflict of law arises, states may hold fast to their legal traditions as opposed to succumbing to international pressures or exercising judicial comity to avoid a self-induced decline in their balance of power within the international system.
Further, states that have no problem overriding the sovereignty of others in the name of “intervention,” would violently resist the same effort by others even when the same crimes have occurred within both.
In much the same way average consumers must read the fine print on credit card contracts, in order to prevent suffering an unforeseen financial loss, Machiavellian-style princes must approach international agreements with caution. More clearly, as long as world plenipotentiaries exist, there will always be a need to balance power and remain skeptical of any cessation of power through agreement.
Moreover, definitionalism is a subtle enemy with a scent that permeates international law. Definitions of human rights, international terrorism, and a host of other terms and concepts elucidate the vagueness and exploitive opportunity that exists within the international-legal domain.
In a briefing paper entitled, Transitional Justice: Key Concepts, Processes, and Challenges, Clara Villalba notes the UN’s definition for transitional justice as “the full set of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation” (2011, 3).
Villalba then pointed out how many issues do not fit neatly into this definition. For instance, gross human rights violations do not always occur in territories where authoritarian regimes evolve toward a democracy. Therefore, “transitional justice processes” may not be necessary. Transitions may be possible without a complete absence of “conflict or oppression”. And finally, past abuses may have occurred on such a large-scale that measuring the effectiveness of any attempt at justice or reconciliation may be nearly impossible to quantify (Villalba 2011, 3).
That is not to say that the UN has not worked to improve their approaches to conflict resolution. The UN has progressively worked to expand certain other rights not always targeted (namely, economic, social, and cultural rights) (Villalba 2011, 3).
Jackson, Donald W., Michael Carlton Tolley, and Mary L. Volcansek. 2010. Globalizing Justice: Critical Perspectives on Transnational Law and the Cross-border Migration of Legal Norms. Albany, NY: State University of New York Press, 2010. eBook Collection (EBSCOhost), EBSCOhost (accessed December 3, 2014).
Slaughter, Ann-Marie. “A Global Community of Courts.” Harvard International Law Journal 44, no. 1 (2003). (accessed December 4, 2014).
Villalba, Clara. Transitional Justice: Key Concepts, Processes and Challenges. Briefing Paper, Institute for Democracy and Conflict Resolution, 2011.