Judicial cosmopolitanism

AuthorJohn L. Murray
PositionChief Justice of Ireland
2008] Judicial Cosmopolitanism 1
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That national courts increasingly refer to the case law of
foreign and international courts is a phenomenon indicative of the
era in which we live. That is to say, the era of globalisation.1
Globalisation has by no means left the law and the administration
of justice untouched. Just as in other fields of endeavour, there is
an incremental growth in the globalisation of ideas and concepts
of justice.2
The transmission of ideas and concepts through time and
space is not a new phenomenon. To quote from another era: “Our
constitution is called a democracy because power is in the hands
not of a minority but of the whole people”.3 This sentiment is as
valid today as it was when expressed by Pericles in his funeral
oration honouring the dead soldiers of the Peloponnesian War in
430 B.C.4 It was evident in the post-Homeric age when the first
hazy conceptual embryos of formal law emerged.5
Chief Justice of Ireland. This is an amended version of a commencement
address which the Chief Justice made to the New England School of Law,
Boston, USA, in 2006, published as “New England School of Law
Commencement Address”, (2006-2007) 41 New England Law Review 247.
The author wishes to acknowledge that the New England Law Review holds
copyright in this address, and the use of material from the address in this article
is with the Review’s permission.
1 The term “globalisation” characterises a worldwide change that started in the
1960s. Globalisation refers to “processes whereby many social relations
become relatively delinked from territorial geography, so that human lives are
increasingly played out in the world as a single place”. See Baylis and Smith,
The Globalization of World Politics (2nd ed., 2001), pp. 14-15.
2 Glenn, Legal Traditions of the World: Sustainable Diversity in Law (2nd ed.,
2004), pp. 51-52.
3 Thucydides, History of the Peloponnesian War (Rex Warner, trans.)
(Penguin, 1972).
4 History of the Peloponnesian War (previous note), at pp. 144-45.
5 See Bury, A History of Greece to the Death of Alexander the Great (3rd ed.,
1959), p. 53 (describing how Homeric poems gave the earliest glimpse of the
collaboration between King, Council and Assembly – three elements creating a
Judicial Studies Institute Journal [2008:2
The democratic sentiment was present in the ensuing era of the
Hellenic world, when the first efforts were made to inscribe in
permanent and public form rules which formerly had the more
insubstantial status of custom.6 That is the spring from which the
idea of the rule of law in organised society emerged; spread to the
Roman world, from where it flowed inexorably over the centuries
across Europe; and eventually to the New World, so that the idea
of law, although in a constant state of evolution, is today the
lifeblood of the modern democratic state.7
While the fertilisation of society by concepts and ideas from
afar is not a novel experience, it is the immediacy and
pervasiveness of the forces of globalisation across the world,
which marks out this modern phenomenon from anything that has
happened in previous eras. At the click of a mouse, a Sri Lankan
student can instantly access the databanks of American and
European universities, or a US professor can compare ideas with
his colleagues in Europe and Australia. Judges may trawl the
websites of supreme or constitutional courts throughout the
Courts, particularly supreme or constitutional courts, are
more than ever looking at how complex jurisprudential problems
are resolved in judicial decisions of foreign countries, and being
inspired by the rationales that underlie such resolutions, and the
academic writings surrounding them. Comparative law – the
study of similarities and differences between various legal
systems – is an increasingly rich source of inspiration for judges
throughout the world.
The terrain on which this phenomenon naturally develops is
that of fundamental rights – or rather on the fundamental aspects
of fundamental rights – such as the death penalty, the rights of
minorities, the issue of positive discrimination, the limitation of
rights for reasons of national security, issues concerning the right
to life and right to die and other sensitive aspects of the human
democratic principle that serves as a basis for later European constitutions).
6 See Kelly, A Short History of Western Legal Theory (1992).
7 See Beatty, “The Forms and Limits of Constitutional Interpretation” (2001)
49 American Journal of Comparative Law 79, 79: “[T]he rule of law
established itself as one of the defining ideas in the political organization of
modern democratic states”.

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