Abstract
How do judges decide cases in a globalised legal context, characterised by the increased interconnections between legal systems and between actors in these legal systems? In this article, firstly, four types of variables (constitutional, institutional, organisational, and personal) which influence judicial practices are described, and it is shown how these variables shape the judicial decision-making of the highest courts in liberal-democratic legal systems. Secondly, the specific development of the use of foreign law in the Supreme Courts of the UK and the Netherlands is analysed in light of the identified variables. In this way, some general insights are provided into the development of judicial decision-making under the effects of globalisation, and it is made clear what the national highest courts can and may do in the specific context in which they are functioning.
Highlights
How do judges decide cases in a globalised legal context, i.e. a world which is characterised by the increased interconnections between legal systems and between actors, including courts, in these legal systems?1 This question is significant for the highest courts in national legal systems
Existing scholarly work does not explain how this internationalisation of judicial decision-making has affected deliberations and the reasoning of the highest courts. Attention to this matter is important, as it relates to fundamental questions regarding legal argumentation as well as the conception of the judicial role
These differences can be related to differences between legal cultures, in particular concerning the authority granted to treaty law in the national legal system.[65]
Summary
How do judges decide cases in a globalised legal context, i.e. a world which is characterised by the increased interconnections between legal systems and between actors, including courts, in these legal systems?1 This question is significant for the highest courts in national legal systems These courts, charged with judging questions of law at the national level, have been obliged to redefine their role in light of the ongoing ‘internationalisation’ of the law.[2] It has been noticed that the h ighest courts in recent years have adapted their practices, in particular through the increased reference to foreign law.[3] Certain authors have made comments about this development and they have given reasons why judges cite foreign law.[4] existing scholarly work does not explain how this internationalisation of judicial decision-making has affected deliberations and the reasoning of the highest courts. The conclusion of the article summarises the results of the analysis and gives a suggestion for further research
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