Judicial Decision-Making in a Globalised World ― A Comparative Analysis of the Changing Practices of Western Highest Courts

Why do judges study legal sources which originated outside their own national legal system, and how do they use arguments from these sources in deciding domestic cases? Based on interviews with judges, this book presents the inside story of how judges engage with international and comparative law in the highest courts of the US, Canada, the UK, France, and the Netherlands. A comparative analysis of the views and experiences of the judges clarifies how the decision-making of these Western courts has developed in light of the internationalization of law and the increased opportunities for transnational judicial communication. While the qualitative analysis reveals the motives which judges claim for using foreign law and the influence of 'globalist' and 'localist' approaches on judging, the book also discovers a convergence of practices between the courts. This empirical analysis is complemented by a constitutional-theoretical inquiry into the procedural and substantive factors of legal evolution, which enable or constrain the development and possible convergence of highest courts' practices. The two strands of analysis are connected in a final contextual reflection on the future development of the role of Western high courts. This unique study will be of interest to all those interested in the process of judicial decision-making and the effects of globalization on the legal system. (Series: Hart Studies in Comparative Public Law)

Elaine Mak is an Associate Professor of Jurisprudence at the Erasmus University Rotterdam.