In Search of an Identity: Voluntary Foreign Citations in Discordant Constitutional Settings

Abstract

Accounts of voluntary judicial reference to foreign sources in noncanonical settings are rare. The general literature on the subject stresses the importance of factors such as global convergence and inevitability of engagement with foreign jurisprudence; judicial prestigeor legitimacy-enhancing factors; and structural features (e.g. constitutional provisions that call for foreign citations, linguistic permeability, a legal tradition or trajectory of legal education that affects a given apex court's ability and willingness to cite foreign jurisprudence). Whereas these accounts provide illuminating explanations for the rise and variance in the practice of global judicial dialogue, they leave out a crucial factor: the socio-political context within which constitutional courts and judges operate, and how this affects whether and where the judicial mind travels in its search for pertinent foreign sources to reference. In the realm of voluntary reference to foreign law in transitional or discordant constitutional settings, judicial choices as to what to cite and what not to cite cannot be understood in isolation from the views of constitutional courts and judges with respect to the “identity” dimension—the attempt to define who “we” are as a political community, and to articulate in a public way what “our image” or “place” in the world are or should be. Instances of strategic, ad-hoc judicial recourse to foreign law are obviously inseparable from the concrete political settings within which they take place. In post-authoritarian or newly created constitutional settings, such choices can signal a judicial commitment to breaking with a nation's less-than-dazzling past or to belong to a certain group of polities. Such choices may likewise help courts and their backers advance certain worldviews and policy preferences that may be otherwise contested in majoritarian decision-making arenas. Importantly, the foreign references that peak courts in discordant constitutional settings (e.g. Israel, Pakistan, Malaysia, India) select, reject or ignore reflect the judicial position vis-a-vis the nation's contested collective identity quandaries. These judicial picks may thus be a channel for and an indicator of constitutional and political identity formation.