JUDICIAL DECISION-MAKING AND TRANSNATIONAL LAW: A SURVEY OF COMMON LAW SUPREME COURT JUDGES

Abstract

Abstract This is a survey study of 43 judges from the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States on the use of foreign law in constitutional rights cases. We find that the conception of apex judges citing foreign law as a source of persuasive authority (associated with Anne-Marie Slaughter, Vicki Jackson and Chris McCrudden) is of limited application. Citational opportunism and the aspiration to membership of an emerging international ‘guild’ appear to be equally important strands in judicial attitudes towards foreign law. We argue that their presence is at odds with Ronald Dworkin's theory of legal objectivity, and is revealed in a manner meeting his own methodological standard for attitudinal research. Wordsworth's words, written about the French Revolution, will, I hope, still ring true: Bliss was it in that dawn to be alive. But to be young was very heaven. – Justice Stephen Breyer's assessment of ‘the global legal enterprise now upon us’ before the American Society of International Law (2003)

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