Highest national courts in an international world

Highest Courts Need to Change

Highest national courts are increasingly influenced by rules and precedents beyond their countries borders. This has consequences for the way they work.

The challenge

Highest national courts stand at the pinnacle of national court systems; through their decisions they have an important role in developing the law. They increasingly have to deal with international agreements and with precedent that is invoked from other legal systems. Moreover, increasingly judges interact across borders. This raises two big questions.

  1. What does this mean for the role of highest national courts to maintain a coherent, unified legal system? What should they do when non-domestic legal sources are invoked? When clear and useful precedents from other legal systems present themselves? When they must decide on international agreements as they apply nationally? Does legal unity also mean something in relation to international law?
  2. What does this mean for the legitimacy of courts? Traditionally the separation of powers was the main anchor of legitimacy: they apply the law that comes from the legislator. What happens to this if they apply non-domestic legal rules or if they go to a conference to meet their foreign peers? Does this require additional explanation or justification?
  3. What do we know empirically about how national courts and judges interact across borders?

The answer to these questions is important for the courts themselves (what type of coherence must they strive for? what are the sources of legitimacy?). It is also relevant for those that negotiate international treaties (how can they best ‘anchor’ treaties in national legal systems, what role can national courts play to apply those treaties?) And it is important for the ‘clients’ of courts (can I invoke foreign precedent and how will the court deal with it?).

The response

National legal systems are increasingly systems related to other systems, with a citizenry that is increasingly transnational – either as individuals or organized in organisations. This means that legal unity can no longer be seen only as a national unity. If a provision of an international treaty would be applied in three totally different ways in three different countries that would raise an issue for the unity of the legal regime that treaty seeks to establish. If a judge is prohibited from writing a better judgement in a case after he has learned how a similar issue was dealt elsewhere, that would be problematic as well. This then also means that legitimacy only based on the formal separation of powers is no longer enough for highest courts. Other sources of legitimacy must also be found, like the use of amicus curiae briefs, ways of motivating, appointment procedures of judges, and a more precedent-setting role of highest national courts.

We have also studied the phenomenon more empirically, so that we now more about what is actually happening (how much, which way, which areas of law, which countries, implicit or explicit).

Project Details

Project Leaders: Prof. Ton Hol, Prof. John Bell & Prof. Andre Lollini 
Duration: 2009 - 2012 
Contact: Sam Muller

Publications

Utrecht Law Review: Volume 8, Issue 2, May 2012
Special Issue on Highest Courts and Transnational Interaction

All articles can be downloaded from here

Table of Contents

Antoine Hol,  Highest Courts and Transnational Interaction: Introductory and Concluding Remarks, 1-7

John Bell, The Argumentative Status of Foreign Legal Arguments, 8-19

Elaine Mak, Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands: Explaining the Development of Judicial Practices, 20-34

Ivo Giesen,  The Use and Influence of Comparative Law in ‘Wrongful Life’ Cases, 35-54

Andrea Lollini, The South African Constitutional Court Experience: Reasoning Patterns Based on Foreign Law, 55-87

Martin Gelter, Mathias Siems, Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations Between Ten of Europe’s Highest Courts, 88-99

Monica Claes, Maartje de Visser, Are You Networked Yet? On Dialogues in European Judicial Networks, 100-114

Emmanuel Lazega,  Mapping Judicial Dialogue across National Borders: An Exploratory Network Study of Learning from Lobbying among European Intellectual Property Judges, 115-128

Nick Huls, The Ebb and Flow of Judicial Leadership in the Netherlands, 129-138

Daniela Piana, Carlo Guarnieri,  Bringing the Outside inside: Macro and Micro Factors to Put the Dialogue among Highest Courts into its Right Context, 139-157

Eyal Benvenisti, George W. Downs, The Democratizing Effects of Transjudicial Coordination, 158-171