Courting the World

When the Supreme Court of the United States ruled last summer that a Texas anti-sodomy law was unconstitutional, it was a surprise victory for civil rights advocates and the gay and lesbian community. That case, Lawrence v. Texas, was also one of the rare instances in which the court cited the decision of a foreign court in a majority opinion. The Supreme Court overruled a 1986 decision in which then Chief Justice Warren Burger had argued that nations sharing the United States’ cultural heritage had long condemned homosexuality. In Lawrence, Justice Anthony Kennedy pointed to a 1981 decision by the European Court of Human Rights that struck down an anti-sodomy law in Northern Ireland to show that many members of Western civilization had a more tolerant view than Burger had maintained.

That short citation was a victory for the internationalists on the court — led by Justices Stephen Breyer, Sandra Day O’Connor, and Ruth Bader Ginsburg — who have been arguing for a decade that U.S. judges must become less parochial. On the other side of the debate are attitudes like those expressed in 1999, when Justice Clarence Thomas concurred with Justice John Paul Stevens in denying a death penalty appeal. Speaking for the nationalist (some would say isolationist) wing of the court, Thomas rebuked colleagues who cited foreign precedents by noting, "were there any such support [for the defendant’s argument] in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council."

At stake in this legal tussle is whether the United States will participate in an accelerating process of judicial globalization, both at the level of ordinary private commercial law and of fundamental constitutional and human rights principles. The European Commission for Democracy through Law now operates a Web site called CODICES, which regularly collects and digests the decisions of constitutional courts and courts of equivalent jurisdiction around the world. And in Asia, Taiwan’s constitutional court has translated large portions of its caselaw into English and made them available on its Web site to ensure it is part of the global dialogue. By exchanging views, sharing expertise, and citing each other’s opinions, judges around the world are cobbling together a global legal structure — one the United States ignores at its peril.

This ad hoc system is far from the hierarchical world order many international law enthusiasts have imagined. For starters, it offers no world supreme court to resolve disputes or pronounce authoritatively on binding rules of international law. Instead, what is developing is messier and more complex. It is a system comprising networks of national and international judges, usually the product of shared jurisdiction over an area of the law — from bankruptcy to refugees — or a particular area of the world, such as the European Union (EU) or the Asia-Pacific region.

In the realm of commercial law, a globalizing economy has been crucial in driving judicial collaboration. In transnational bankruptcy disputes, for instance, national courts are concluding "cross-border insolvency cooperation protocols," which are essentially mini-treaties setting forth each side’s role in resolving disputes. In a 1983 breach of contract case, the noted English judge Lord Denning observed that he was faced with a situation in which "one [court] or another must give way. I wish that we could sit together to discuss it." Twenty years later, courts are sitting together to discuss conflicts, at least virtually.

The judges who participate in these networks are rarely motivated by a missionary zeal to build a global system. Rather, they are driven by more prosaic concerns, such as judicial politics, the demands of a heavy caseload, and the impact of new international rules on national litigants. In the eu legal system, for instance, a lower-court judge in a national court who is butting heads with colleagues on a point of law often has the option of referring a case to the Court of Justice of the European Communities to gain support. In areas such as trade, intellectual property, the environment, and human rights, national courts around the world compare each other’s interpretations of international treaties.

Some conservatives in the United States charge that judges who look beyond their country’s borders violate their sworn duty to defend and uphold the constitution. But this nationalist position ignores the tremendous opportunity cost that comes with denying U.S. courts a voice in this global dialogue. The United States has always preached the virtues of its legal system. After the Second World War, the United States helped establish new constitutional courts in Germany and Japan. In the 1990s, the U.S. government helped shape the path-breaking International Criminal Tribunal for the former Yugoslavia. Today, the United States pushes courts in fledgling democracies to learn from its example. But why must such learning flow only one way? Does the United States have nothing to learn from any other jurisdiction? Beyond hypocrisy, the U.S. aversion to drawing on foreign decisions invites charges of judicial imperialism. Why should U.S. judges be able to consult work by economists and political scientists around the world (as they often do) but not the decisions of judges in other countries? Ginsburg, for instance, argues that U.S. courts might be able to learn from India’s legal wrangling with its caste system as U.S. judges confront the thorny issue of affirmative action. "In the area of human rights," she observes," experience in one nation or region may inspire or inform other nations or regions."

Although global problems often require a global governing capacity, most governments and publics are unwilling to accept an international centralization of power. The emerging international legal dialogue offers a solution to that dilemma. A global legal system made of loose judicial networks in which national judges retain their autonomy but profit from one another’s wisdom, experience, and occasional cooperation is far more attractive to most U.S. citizens — and indeed to most Europeans, Africans, Latin Americans, and Asians — than an international legal hierarchy. It’s no world court, but it works.