scholarly journals Judicial Globalization in the Service of Self-Government

2006 ◽  
Vol 20 (4) ◽  
pp. 477-503 ◽  
Author(s):  
Martin S. Flaherty
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
Elected Officials ◽  
The Past ◽  
General Utility ◽  
The Supreme Court ◽  
The World ◽  
Domestic Law ◽  
The U.S

For at least the past several decades, judges around the world have been looking beyond their own states' jurisprudence to international law and the decisions of foreign courts in order to apply domestic law. This widespread practice is part of a phenomenon that Anne-Marie Slaughter calls “judicial globalization.” The American judiciary, however, has exhibited a distinct diffidence toward the use of comparative and international law to decide domestic cases, a diffidence that extends to many elected officials as well… .Various defenses of the Supreme Court's reliance on international and comparative sources have been made, not least by some of the Supreme Court justices themselves. None of the defenses, however, have met the democratic objections head-on. Instead, justifications have mainly defended the general utility of referencing additional sources rather than the specific legitimacy of referencing sources from outside the U.S. legal system. The defenses to date fall short for at least two sets of reasons. They fail to grapple with legitimate concerns about the practice. In consequence, they offer no reasons for those opposed to this practice to reconsider their resistance.

Under the Law

2018 ◽  
Vol 99 (5) ◽  
pp. 76-77
Author(s):  
Julie Underwood
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Universal Declaration ◽  
Educational Rights ◽  
The Supreme Court ◽  
The World ◽  
The Law ◽  
The Right ◽  
The U.S

The right to an education is guaranteed by international law in the Universal Declaration of Human Rights. Similarly, UNESCO’s Constitution sets out the right to an education as necessary to “prepare the children of the world for the responsibilities of freedom.” No such right is mentioned in the U.S. Constitution, though. Perhaps Congress or the Supreme Court would be sympathetic, however, to an argument for educational rights based on the 14th Amendment’s guarantee of the rights of citizenship.

scholarly journals Immunizing the Flock: How the Pandemic Court Rewrote Religious Freedom

Laws ◽  
2021 ◽  
Vol 10 (1) ◽  
pp. 12
Author(s):  
Paul Baumgardner
Keyword(s):  
United States ◽  
Supreme Court ◽  
Legal System ◽  
Religious Freedom ◽  
The United States ◽  
Religious Practices ◽  
The Past ◽  
The U.S

When coronavirus began to descend upon the United States, religious freedom advocates across the country sounded the alarm that citizens’ religious practices and institutions were under threat. Although some of the most extreme arguments championed by these advocates were not validated by our legal system, many were. This article explores the underappreciated gains made by religious freedom advocates before the U.S. Supreme Court over the past year. As a result of the “Pandemic Court”, religious freedom in the United States has been rewritten. This promises to radically change the educational, employment, and health prospects of millions of Americans for the rest of the pandemic and long afterwards.

Independent Development of Israeli Law

1975 ◽  
Vol 10 (4) ◽  
pp. 515-568 ◽  
Author(s):  
Daniel Friedmann
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Private International Law ◽  
Privy Council ◽  
The Past ◽  
Foreign Law ◽  
Local Law ◽  
English Law

It is not always easy to decide when we must turn to English law. And once it has been determined that reference to English law is appropriate, there is the further question of the substance and application of principles drawn from English law. In such case, English law forms part of the local law, and need not be ascertained as required by the rules of private international law in respect of foreign law.This makes the local law directly dependent upon English case-law, which itself is constantly being renewed and developed. Such dependence may seem to impair the independence of the Israeli legal system. The question could not, of course, be raised during the Mandatory period at a time when there existed a possibility of appeal from the Mandatory Supreme Court to the Privy Council in Westminster. But after the establishment of the State Cheshin J. said:It is unthinkable that a sovereign nation with its own laws and its own legal system would continue to be subject to the authority of a foreign nation's legal system and to changes in rulings which are likely to be introduced in her courts, only because in the past, when there was a strong tie between the two nations, the former drew from the legal system of the latter.

The Treatment of International Crimes in Chilean Jurisprudence: A Janus Face

2010 ◽  
Vol 10 (4) ◽  
pp. 535-547
Author(s):  
José Luis Guzmán Dalbora
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Military Regime ◽  
International Crimes ◽  
The Supreme Court ◽  
The Military ◽  
Principle Of Legality ◽  
Domestic Law

AbstractThis article discusses how Chilean jurisprudence has reviewed the crimes perpetrated by the military regime that ruled Chile from 1973 to 1990. Because the Chilean legislation did not have a catalogue of international crimes until 2009, the jurisprudence had to prosecute the military regime's crimes as common offences—mainly as abductions and murders. After years of resistance to accept international principles, the attitude of higher courts, especially the Supreme Court, started to change in the nineties, consistent with the consolidation of the restored democracy. This change is especially reflected in the question of the validity of the prosecution of these crimes, which were hindered by an amnesty law issued in the period of the military regime and by the statute of limitations. As the Amnesty Law is no longer applicable, today the debate focuses on the non-applicability of the statute of limitations. All this has led to rulings with hybrid content: half domestic law, half international law, a Janus face — as the author mentions — that may be dangerous for the principle of legality.

Looking Backward and Moving Forward

2020 ◽  
Vol 32 (3) ◽  
pp. 125-127
Author(s):  
Steven L. Chanenson
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Supreme Court ◽  
Good Thing ◽  
Quarter Century ◽  
Federal Sentencing ◽  
The Past ◽  
The Supreme Court ◽  
The World ◽  
Learning From History

We are at a notable moment to contemplate federal sentencing. Fifteen years ago, the Supreme Court issued its landmark decision in United States v. Booker. Just over 25 years ago, Congress passed and the President signed the 1994 Crime Bill. By looking backward and learning from history, we may be able to move forward more productively. One remarkable aspect of Booker is that it still controls federal sentencing a decade and a half later. Congress has chosen to largely leave the system as the Court refashioned it. The world is different today than it was in 2005. Yet the Booker framework – established by two essentially dueling 5-4 majorities of the Supreme Court – endures. In some ways, the most remarkable aspect of Booker at 15 is how unremarkable it appears to contemporary eyes. It is the dog that doesn’t bark – at least not much. In order to truly benefit from the lessons of our criminal justice history, we must go beyond guidelines. Just over 25 years ago, Congress spoke forcefully in the 1994 Crime Bill. It was addressing the concerns of that era with tactics that garnered wide support at the time but are not always viewed favorably today. By stopping to explore the context and consequences of two of the most significant judicial and legislative criminal justice events of the last quarter-century, lessons may emerge. That is a good thing. If we are to make mistakes again (and we will), they should be new ones. Only by understanding the past can we effectively illuminate the path forward.

Domesticating Treaties in the Legal System of South Sudan – A Monist or Dualist Approach?

2020 ◽  
Vol 28 (3) ◽  
pp. 378-400
Author(s):  
Ruben S. P. Valfredo
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
South Sudan ◽  
Status Quo ◽  
Treaty Ratification ◽  
The Supreme Court ◽  
The Status ◽  
Mixed Approach ◽  
International Conventions

This article examines the approach for the domestication of treaties in South Sudan. Such examination is undergone in light of the theories for the domestication of international law norms into the domestic legal systems of state members of the international community. The article establishes that the approach in South Sudan is not clearly indicated, and seems to be inconsistent with regard to the practice of various institutions linked to the domestication of treaties process in South Sudan. However, the article expands on two foundations: the status quo and the ‘ought to be’ approach. The article argues that the approach as it exists seems to be a monist rather than a dualist approach. This is evident from the indicators of South Sudan's constitutional, legislative and judicial settings such as the text of the Transitional Constitution of South Sudan 2011, the treaty ratification process, the practices of the National Legislative Assembly in respect of international conventions and a judicial circular issued by the Supreme Court of South Sudan. Furthermore, the article advances that the ‘as ought to exist’ approach needs to be a clearly mixed approach, partly monist and partly dualist. Such approach combines the advantages associated with each approach in one place. The article recommends that there is a need to have a well informed, well established and clear status in respect of the domestication approach guided by the various arrangements and settings highlighted above. It may also take account of the various states’ attitudes towards international law and the legal school of thought which forms the basis of South Sudan legal system. Such recommendation could be materialised via an act of parliament, a regulation or a practice manual.

The Expanding Role of the Supreme Court of Canada in International Law Issues

1997 ◽  
Vol 34 ◽  
pp. 89-102 ◽  
Author(s):  
Gérard V. La Forest
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal Issues ◽  
Supreme Court Of Canada ◽  
Private International Law ◽  
Public And Private ◽  
National Courts ◽  
The Supreme Court ◽  
The World

SummaryThe rapid globalization that marks our era has resulted in increasing demands for the legal resolution of disputes arising out of interstate activities. National courts throughout the world have been significantly affected by this development. This article describes the recent expansion of the work of the Supreme Court of Canada in relation to transnational legal issues, including issues of public and private international law, human rights, admiralty law, and issues of private law having international ramifications. It traces the Court's evolving approach to international law issues and its willingness to reformulate its principles to meet modern conditions and to foster compliance with its norms. The more cosmopolitan attitude thereby generated has worked in concert with the Court's increasing willingness to rely on comparative law techniques in assuting in the resolution of issues of a localized character.

8. The Court and the world

2020 ◽  
pp. 92-98
Author(s):  
Linda Greenhouse
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Specific Knowledge ◽  
The Public ◽  
The Supreme Court ◽  
The World ◽  
Public Imagination ◽  
The U.S

When the Framers set the Supreme Court in motion, they had no template for what they were about to create. “The court and the world” demonstrates that other countries were able to use the Supreme Court for inspiration, and many have done so. What they have chosen to take and leave from the Court’s example is instructive. Lifetime tenure is less common outside the United States, with most European courts preferring nine- or ten-year appointments and aiming for unanimity rather than majority. While specific knowledge about the Court is limited, the U.S. Supreme Court still holds a place in the public imagination.

Sources of International Law in Domestic Law

2018 ◽  
Author(s):  
Ingrid B. Wuerth
Keyword(s):  
International Law ◽  
Soft Law ◽  
Past Century ◽  
Global Changes ◽  
Administrative State ◽  
New Approach ◽  
The Past ◽  
The World ◽  
The Relationship ◽  
Domestic Law

This chapter takes a new approach to the much-analysed relationship between domestic and international law. It considers how global changes in domestic constitutional structures have changed the sources of international law. It argues that domestic constitutional structures have changed in similar ways in many countries around the world over the past century. Treaties, custom, and ‘soft law’ as sources of international law have each been shaped by these changes, particularly the rise in legislative power for treaties, the rise in legislative and judicial power for custom and general principles, and the rise of the administrative state for soft law. This chapter also considers how the content of each source of international law is influenced by domestic constitutional structures. It concludes with some normative perspectives on the relationship between each source of international law and changes in domestic constitutional structures.

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