Why do judges study legal sources that originated outside their own national legal system, and how do they use arguments from these sources in deciding domestic cases? Based on interviews with judges, this book presents the inside story of how judges engage with international and comparative law in the highest courts of the United Kingdom, Canada, the United States, France and the Netherlands. A comparative analysis of the views and experiences of the judges clarifies how the decision-making of these Western courts has developed in light of the internationalisation of law and the increased opportunities for transnational judicial communication. While the qualitative analysis reveals the motives that judges claim for using foreign law and the influence of 'globalist' and 'localist' approaches to judging, the author also finds suggestions of a convergence of practices between the courts that are the subject of this study. This empirical analysis is complemented by a constitutional-theoretical inquiry into the procedural and substantive factors of legal evolution, which enable or constrain the development and possible convergence of highest courts' practices. The two strands of the analysis are connected in a final contextual reflection on the future development of the role of Western highest courts.
Elaine Mak is Professor of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at the Erasmus University Rotterdam.
1. Introduction: Highest Courts in Flux I. The Trend of Judicial Internationalisation II. Why Do Judges Cite Foreign Law? III. Learning from the Views of Judges IV. Scope of the Research V. Outline of the Book 2. Understanding the Development of Highest Courts' Practices: A Constitutional-Theoretical Approach I. Constitutional Theory and Legal Evolution II. Procedural Aspects of Legal Evolution III. Substantive Aspects of Legal Evolution IV. Conclusion 3. Introducing the Comparative and Empirical Analysis I. Anglo-Saxon Model: A Single Highest Court (United Kingdom, Canada, United States) II. French Model: Multiple Highest Courts (France, the Netherlands) III. Comparing the Courts IV. An Empirical Analysis V. Conclusion 4. Incorporating the Transnational: Judicial Roles, Relations and Working Methods in a Globalised World I. Judicial Roles in a Globalised World II. International Relations of the Highest Courts III. Working Methods in a Globalised World IV. Conclusion 5. The Use of Foreign Law in Judicial Decision-Making I. Status of Foreign Law II. Use of Foreign Law: Examples from Case Law III. Justification of Developed Practices IV. Conclusion 6. Conclusion: Assessing the Development of Highest Courts' Practices I. Constitutional (In-)Flexibility in Action: Procedural and Substantive Explanations for the Development of Highest Courts' Practices II. Epilogue: The Future of Judicial Internationalisation