“Globalization is thought of more in terms of corporations than courts; more in terms of global markets than global justice.”- Anne-Marie Slaughter A New World Order (2004)
Dear Reader:
Around the world, there is a recognition that globalization is changing the contours of law and creating new legal institutions and norms. The need for global taxonomy is more important especially in light of legal globalization in which knowledge transfer is needed not only in different areas of laws but across different legal systems. In this regard, there is increasing dialogue between judges; cooperation between national judicial authorities and other foreign courts; and international and regional courts, resulting in a globalized jurisprudence. However, judicial globalization has attracted much political, judicial, and academic attention and controversy. There are still on-going debates about the uses and abuses of comparative foreign case law. Part of reflecting on how we are using existing legal mechanisms to effectively protect human rights in The Gambia lies in the exploration of the intermingled nature of human rights systems within a global world.
Key Themes
The series will broadly focus on one of the most effective mechanisms of judicial globalization: constitutional cross-fertilization in which Courts cite each other’s precedent on constitutional issues. I explore The Gambia’s attitude in the usage of transnational materials. Drawing from the unique case study of South Africa, I ask the following questions:
- What is the proper and legitimate use of foreign and international legal sources?
- In the wake of the departure from traditional transplant, how has the South African Constitutional Court evolved from being a “borrower” to one of the most influential “lender” courts on constitutional matters?
In recent times the South African and the Canadian constitutional courts have both been highly influential, apparently more so in recent decades than the U.S. Supreme Court and other older and more established constitutional courts. In the present conditions of globalization, there is much utility in a discussion on The Gambia’s Supreme Court’s attitude and practice of transnational legal argument, having particular regard to human rights in The Gambia.
To respond to these questions, I will explore the nexus between judicial globalization and human rights and the relationship between the two. Second, I will provide a theoretical background on transformative constitutionalism, guided by the work of American Scholar Karl Klare, who first propounded the concept in 1998 urging South African judges to interpret and apply the Constitution in such a way as to bring about social justice, and to create an egalitarian society. This is a bottom-up process of globalization conducted by the world community of judges. Third, I will look at the role and impact of international and foreign law on adjudication in South African Courts- mainly at the Constitutional Court. This part deals with the constitutional developments in the application of international and foreign law. I will then l explore the ability of the Supreme Court of The Gambia in capturing and crystallizing the work of their fellow constitutional judges around the world.
Over the course of the next few weeks through a blog series or symposium, I hope to answer these questions. This series on judicial globalization is premised on the belief that innovative provisions in constitutions coupled with the willingness of judges in citing foreign case law serves as one of the most suitable tools that foster the migration of human rights around the globe and from one nation to another, through a bottom-up process of globalization conducted by the world community of judges.
The goal of this series is to contribute to bringing scholarly attention to this issue given the dearth of scholarship in The Gambia in this regard. I hope that this series is thought-provoking and invite you to engage in this discourse, as I leave you with further questions to explore.
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