Abstract
It wasn’t so long ago that the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. These courts conformed to a policy of avoiding any application of foreign sources of law that would clash with the position of their domestic governments. But as this Article demonstrates, in recent years courts in several democracies have begun to show a change of heart, often engaging quite seriously in the interpretation and application of international law and heeding the constitutional jurisprudence of other national courts. The Article explains this emerging jurisprudence as part of a reaction to the forces of globalization that are placing increasing pressure on governments, legislatures and courts to conform to global standards. The courts seek to expand the space for domestic deliberation and to strengthen the ability of national governments to withstand the pressure brought to bear by interest groups and powerful foreign governments. For this strategy to succeed, courts need to forge a united judicial front. This entails coordinating their policies with equally positioned courts in other countries, through the common language of international law and comparative constitutional law. The analysis also explains why the U.S. Supreme Court, which so far was not required to protect domestic political process from external pressures, is still not a part of this collective effort. Finally, and based on this insight into the driving force behind reliance on foreign law, the Article asserts that recourse to these sources is perfectly legitimate from a democratic theory perspective, as it aims to reclaim democracy from the debilitating grip of globalization.
Disciplines
Administrative Law | Civil Rights and Discrimination | Comparative and Foreign Law | Constitutional Law | Courts | Dispute Resolution and Arbitration | Environmental Law | Human Rights Law | Immigration Law | International Law | International Trade | Judges | Law and Economics | Public Law and Legal Theory
Date of this Version
January 2008
Recommended Citation
Eyal Benvenisti, "Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts" (January 2008). Tel Aviv University Law Faculty Papers. Working Paper 59.
http://law.bepress.com/taulwps/art59
Included in
Administrative Law Commons, Civil Rights and Discrimination Commons, Comparative and Foreign Law Commons, Constitutional Law Commons, Courts Commons, Dispute Resolution and Arbitration Commons, Environmental Law Commons, Human Rights Law Commons, Immigration Law Commons, International Law Commons, International Trade Commons, Judges Commons, Law and Economics Commons, Public Law and Legal Theory Commons
Comments
Forthcoming in 102 American Journal of International Law (2008)