Benvenisti: Reclaiming Democracy: Why National Courts (Sometimes) Take Foreign and International Law Seriously

Eyal Benvenisti (Tel Aviv Univ. - Law) has posted Reclaiming Democracy: Why National Courts (Sometimes) Take Foreign and International Law Seriously. Here's the abstract:

Is it appropriate for courts to cite foreign law and international law in domestic constitutional cases? The starting point of the passionate debate around this question is the thus-unexplored assumption that reference to foreign law is inevitably in tension with the value of national sovereignty. This Essay questions this assumption of tension. It argues that for courts in most democratic countries - even if not for U.S. courts at present - referring to foreign and international law has become an effective instrument for empowering the domestic political processes by shielding them from external economic and political pressures. This Essay demonstrates that in recent years, courts in several democracies have begun to engage quite seriously in the interpretation and application of international law and to heed to the constitutional jurisprudence of other national courts. This Essay argues that this emerging jurisprudence is part of a reaction to the forces of globalization that are placing increasing pressure on governments and legislatures 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 Essay 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.