Translating Justice: The International Organization of Constitutional Courts

• Author: Udi Sommer,Olga Frishman
• DOI: http://doi.org/10.1111/lapo.12054
• Date: 01 April 2016
• Published date: 01 April 2016

Translating Justice: The International Organization

of Constitutional Courts

UDI SOMMER and OLGA FRISHMAN

What is the international organization of national constitutional courts? This article develops a

theoretical framework to analyze this question and tests it empirically with original data of

translated opinions. Justices of different nations form an emerging epistemic community, which

is congealed due to common practices as well as to competition and selectiveness throughout

the judicial career. Opinions translated into English as the lingua franca are pivotal for

communication within this epistemic community. Through engaging in a transnational judicial

dialogue, and particularly as far as this dialogue concerns legal citations, this community uses

international law as a key guide to finding equilibrium solutions at national and international

levels. Five sources of international law overwhelmingly dominate. In addition, we find evidence

in the collegial game within the different courts for the existence of a transnational epistemic

community of Supreme Court justices.

Over the first decade of the twenty-first century, the Israeli Supreme Court was repeatedly

asked to address the issue of the Separation Barrier Israel was building in the West Bank

approximately along the Green Line. The questions presented to the Court in those cases

concerned the balance between Palestinians’ civil and human rights, on the one hand, and

the right of Israelis to security, on the other. In two landmark cases (Bethlehem Municipal-

ity v State of Israel [2005] and Beit Sourik v The Government of Israel [2004]), the Israeli

Court allowed the state to move forward with the barrier project with minor changes. In

September 2005, Chief Justice Barak delivered a unanimous opinion for a nine-justice

panel in Mara’abe v The Prime Minister of Israel (2005), another case addressing the bar-

rier issue. However, in this case, a new player beyond the state, the military, and the Pales-

tinians was involved—the International Court of Justice (ICJ). In July 2004, the ICJ

handed down an advisory opinion stating that the entire barrier project was territorial

annexation under the guise of security. In Mara’abe, the latter case, Barak went into great

detail to explain the substantially different factual bases that had led the ICJ to rule differ-

ently from the Israeli Court. Barak not only perceived the ICJ decision as relevant but

also felt compelled to engage in a conversation with the ICJ, which he did at length in the

opinion he delivered for the Court in Mara’abe.

Barak’s preoccupation with international legal matters and with foreign legal commun-

ities neither began nor ended with Mara’abe and was not limited to legal references.

Indeed, he was intermittently a visitor at top American law schools as well as a member of

Professor Sommer would like to acknowledge his research team: Maayan Ravid, Adi Grady, Oren Regev,

Elliot Talbert-Goldstein, David Bimbat, and Tom Gur. Their work in data collection, compilation, and visual-

ization was vital.

Address correspondence to: Udi Sommer, Tel Aviv University—Political Science, Ramat Aviv Ramat Aviv,

Tel Aviv, Israel, 62486. Telephone: 1972-54-7137053; E-mail: udi.sommer@gmail.com.

LAW & POLICY, Vol. 38, No. 2, April 2016 ISSN 0265–8240

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doi: 10.1111/lapo.12054

the American Academy of Arts and Sciences. Since retiring from the Court, Barak has

continued to be deeply involved in the international community of jurists, teaching at

Yale Law School and giving talks around the world. Participation in a transnational

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judicial community is not unique to Chief Justice Barak, however. Indeed, many jurists

worldwide take part in a community that uses each other’s work, references each other’s

rulings, and sometimes even serves together on the same institution, alternating between

national and international tribunals (e.g., Hans Kutscher (Germany); Ronald Mackay

(Scotland); Fidelma MacKen and John L. Murray (Ireland)). This article sets out to argue

that this group of leading jurists and the institutions on which they serve do not interact

with each other haphazardly. Rather, constitutional courts are organized as an interna-

tional epistemic community.

Today, people, organizations, and institutions around the world communicate with each

other more smoothly and easily than ever in the past. This is true not only for private indi-

viduals and corporations but also for national governments and their institutions. Transna-

tional networks between the executive, legislative, and judicial branches of different

countries are developing around the world (Anderson 2005; Slaughter 2003b, 2004). This

article focuses on one of those networks—the one between national judicial branches, and

more specifically between national courts that are preoccupied with constitutional ques-

tions (i.e., constitutional courts are used interchangeably here with Supreme Courts)—and

argues that in fact the transnational network of judges forms an epistemic community.

In recent decades, political institutions and organizations from different nations have

been interacting via intergovernmental institutions, nongovernmental institutions,

exchange programs, international conferences, and in a variety of other ways. A few

examples include Slaughter’s transnational networks of regulators, judges, and legisla-

tors, as well as transnational advocacy networks and other communities of practice

(Adler and Pouliot 2011; Keck and Sikkink 1999). While there is considerable scholarship

about each national Supreme Court discretely, and whereas their consequentiality for

both domestic and international politics is widely recognized, we know scarcely little

about how Supreme Courts of different nations relate to each other and about their inter-

national organization. Of interest to us, hence, is the transnational judicial community

that has become more vigorous in recent years and, accordingly, has been attracting

increased scholarly attention (Baudenbacher 2003).

This project aims to move forward the epistemic communities literature, which has

recently been slow to progress empirically and theoretically. We marry two bodies of litera-

ture—the epistemic communities literature in the study of international relations and the lit-

erature of transnational judicial dialogue and engagement—to argue that international law

provides a common set of solutions to problems faced by courts and national governments.

We find a heretofore unidentified community that acts not merely as a network of pro-

fessionals but more accurately, as an epistemic community. International law is a key nor-

mative and analytical source for this community and thus it figures prominently in the

form of references to this body of law. Based (at least partly) on that common legal, norma-

tive, and analytic basis, members of the epistemic community—that is, Supreme Court jus-

tices in different countries—influence policy making in their respective domestic spheres.

At the empirical level, we go beyond interviews and other methodologies that attempt

to track discrete aspects of epistemic communities, and instead we examine systematic

trends by studying the macrolevel of legal references. Assuming that a prerequisite for

engagement between courts is a common language, we examine Supreme Court rulings

that are translated into English and made available on the Courts’ Internet websites. Fit-

tingly, we focus on constitutional courts in countries where the native language is not Eng-

lish and examine the practices they have for translating their own opinions into English

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