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Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts

American Journal of International Law, Vol. 102, 2008

34 Pages Posted: 22 Aug 2007 Last revised: 13 Jul 2009

Eyal Benvenisti

University of Cambridge Faculty of Law

Date Written: 2008

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.

Keywords: international law, comparative law, constitutional law, globalization, judicial review, human rights, courts, democracy

JEL Classification: K10, K32, K33

Suggested Citation

Benvenisti, Eyal, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts (2008). American Journal of International Law, Vol. 102, 2008. Available at SSRN: https://ssrn.com/abstract=1007453

Eyal Benvenisti (Contact Author)

University of Cambridge Faculty of Law ( email )

Lauterpacht Centre for International Law
5 Cranmer Centre
Cambridge, CB3 9BL
United Kingdom

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