Judges in Contemporary Democracy: An International Conversation.

AuthorKrotoszynski, Jr., Ronald J.
PositionBook review

JUDGES IN CONTEMPORARY DEMOCRACY: AN INTERNATIONAL CONVERSATION. Edited by Robert Badinter & Stephen Breyer. New York and London: New York University Press. 2004. Pp. ix, 317. $55.

TABLE OF CONTENTS I. THE MUSE MELPOMENE: THE POTENTIAL FOR TRAGEDY IN THE QUEST FOR INTERNATIONAL JUDICIAL DIALOGUE A. A Brief Review of IJD, Its Proponents, and Its Critics B. Operationalizing IJD: Getting Beyond Mere Abstract Advocacy to Real World Implementation C. The Serious Difficulties Associated with the Strong Form of IJD II. THE MUSE POLYHYMNIA: THE JUDGE AS MORAL ARBITER AND THE PROBLEM OF CREEPING JUDICIALIZATION OF EVERYDAY POLITICS A. Reconsidering the Judicial Role and the Scope of Judicial Power 1. The Ever-Expanding Judicial Universe 2. The Problem of Judicial Legitimacy: The Judge as Moral Agent B. The Judge and the Political Process 1. Judges as Referees in Partisan Elections 2. The Challenge to Judicial Legitimacy When Politicians Superintend Courts C. The Judge and the Media D. But Who Will Judge the Judges? III. THE MUSE CALLIOPE: INTERNATIONAL JUDICIAL DIALOGUE AS A SOURCE OF INSPIRATION AND A MEANS OF ENHANCING JUDICIAL UNDERSTANDING OF FUNDAMENTAL HUMAN RIGHTS CONCLUSION: THE MUSES' LOVE AND THE JUDICIAL PROJECT I'd like to buy the world a home and furnish it with love, Grow apple trees and honey bees, and snow white turtle doves. I'd like to teach the world to sing in perfect harmony, I'd like to buy the world a Coke and keep it company. It's the real thing, Coke is what the world wants today. (1) The essential terms of the debate about the legitimacy of judicial power may be synthesized in two fundamental questions: First, what is the source of the judge's legitimacy? Second, what are its connections with other powers that a direct democracy may legitimately exercise? (p. 281) Proponents of international judicial dialogue would do well to read, and reflect upon, the conversations chronicled in Judges in Contemporary Democracy. In a lucid and candid series of interlocutions, five preeminent constitutional jurists and one highly regarded constitutional theorist ponder some of the most difficult questions about the role of a judge on a constitutional court. In particular, the participants--including Stephen Breyer (Associate Justice of the Supreme Court of the United States), Robert Badinter (former President of the Constitutional Council of France), Antonio Cassese (former President of the International Criminal Tribunal for the Former Yugoslavia), Dieter Grimm (former Justice of the Federal Constitutional Court of Germany), Gil Carlos Rodriguez Iglesias (President, Court of Justice of the European Communities), and Ronald Dworkin (Professor of Law at New York University, Professor of Jurisprudence at University College London, and formerly Professor of Jurisprudence at Oxford University)--consider the countermajoritarian problem identified by Alexander Bickel. (2) In a democratic society, why should judges have the final say when judges lack the democratic mandate enjoyed by executive and legislative branch officials? (3) Why do the other branches of government--to say nothing of average citizens--accept judicial decisions that invalidate legislative or executive actions? (4) The participants posit a creeping "judicialization" (pp. 3-6) of democratic government, in which the political branches call upon judges to undertake broader and broader responsibilities.

With astonishing candor, the participants reflect upon their experiences within their own domestic legal systems, consider the advent of truly transnational judicial entities, and offer observations on and critiques of how foreign legal systems have attempted to solve common problems. The style is entirely dialectic; indeed, Judges in Contemporary Democracy reads very much like a Socratic dialogue. (5)

Obviously, a transnational conversation of this sort provides many useful insights into the role of judges and the nature of judging. In this respect, Judges in Contemporary Democracy is an important contribution to our understanding of how judges themselves view the legitimacy of their labors. In addition, however, the book also offers timely and important insight into the problem presented by transnational, or international, judicial dialogue.

Increasingly, legal academics have advocated more frequent and meaningful interactions between and among judges serving on various national courts. A common turn of phrase for this kind of transnational judicial interaction is "International Judicial Dialogue" ("IJD"). (6) For example, Professor Anne-Marie Slaughter has called on judges to engage each other in an effort to create a global system of law. (7) These efforts would help create "a world in which courts perceived themselves independent of, although linked to, their fellow political institutions, open to persuasive authority, and engaged in a common enterprise of interpreting and applying national and international law, protecting individual rights, and ensuring that power is corralled by law." (8)

Objective evidence strongly suggests that the justices of the Supreme Court of the United States have been listening. The Supreme Court has made a conscious turn toward international judicial dialogue. (9) In cases like Roper, (10) Lawrence, (11) and Atkins, (12) the justices have invoked foreign legal precedents in support of the Court's interpretation of the domestic Constitution. Moreover, several of the incumbent justices have publicly advocated the incorporation of foreign legal precedents into domestic constitutional law. (13) This "borrowing" of foreign legal precedents represents one aspect of international judicial dialogue. Proponents of this form of IJD assert that the consideration and incorporation of foreign legal precedents will enhance the quality and persuasiveness of domestic judgments. (14) One could term this "strong form" IJD.

At the same time, however, advocates of IJD also have promoted greater interaction and discussion among jurists from different courts. (15) This conversation could be extended over time and carried out in a relatively formal fashion, such as in a series of law review writings. Alternatively, IJD could be advanced by discussions in real time among judges from different nations, serving on different national, or international, courts. (16) One could style this approach to IJD as "weak form" IJD. Even persons skeptical of strong form IJD have expressed openness to weak form IJD. (17)

In my view, Judges in Contemporary Democracy provides strong support for advocates of the weak form of IJD. The participants--even from neighboring countries--knew relatively little about the membership, selection, and operation of each other's courts. The conversations plainly enhanced mutual understanding of how foreign constitutional courts function, the role that the courts play in domestic government, and the problems that the various courts confront in going about their job of safeguarding constitutional values. At the same time, however, this lack of knowledge has rather serious implications for advocates of the strong form of IJD: how can one reliably "borrow" a precedent when one lacks even the most rudimentary understanding of the institution that issued the opinion and the legal, social, and cultural constraints that provided the context for the decision? A precedent is more than bare words on a page. A precedent is the product of a socio-legal culture: reading a text as nothing more than a text risks grave misunderstandings that could prove embarrassing to the borrowing court. (18)

Although the problems associated with the strong form of IJD begin with the problems of understanding the context and meaning of foreign legal precedents, they do not end there. Even if one could "teach the world to sing in perfect harmony" by overcoming the practical difficulties of understanding a foreign legal precedent in its proper doctrinal, institutional, and cultural context, one would still have to deal with another problem. Contrary to the song's suggestion, Coke is not necessarily what "the world wants today," if by "Coke" one means a fundamental rights jurisprudence that more or less mirrors the substance of contemporary U.S. human rights law.

Consider just two examples of this phenomenon. Under the German Basic Law (which serves as Germany's constitution), abortion rights are significantly more circumscribed than at present in the United States. The Federal Constitutional Court has held that the Basic Law's protection of human dignity and the right to free development of one's personality apply to gestating fetuses. (19) Roe v. Wade (20) does not necessarily provide the yardstick by which one would measure the reproductive rights of women if the Supreme Court were to consider the question from a truly global perspective. Similarly, the primacy of free speech over other human rights--such as personal dignity, reputation, and equality--is not a universally shared view; not only Germany but most of Western Europe and Canada view regulations of racist or sexist hate speech as fully compatible with a meaningful commitment to the freedom of expression and democratic pluralism. (21)

Thus, even if one could divine some means of operationalizing the strong form of IJD, it is not entirely clear that the resulting human rights regime would necessarily favor the balances presently struck by the current Supreme Court. Advocates of the strong form of IJD would do well to consider whether they would support IJD as enthusiastically if, at the end of the day, what the world really wants is not Coke but rather a warm beer or a nice Chianti.

Part I of this Review Essay takes up the theory of IJD and its principal features and makes some preliminary assessments of the potential costs and benefits of IJD, in both its "strong" and "weak" forms. Part II then surveys and critiques the principal arguments that Judges in Contemporary Democracy...

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