Converging Courts: Reconceptualizing the Notion of Judicial Cosmopolitanism
LUCREZIA PALANDRI – CDCT Working Paper 38-2015/ELC 22
Abstract: Over the last decade, comparative constitutional literature worldwide has debated the increased tendency of supreme and constitutional national judges to cite foreign precedents. This tendency is captured by the metaphor of the ‘dialogue among courts’, a rhetorical metaphor referring to One of the recurring arguments of both critics and upholders of the judicial use of the comparative method is that such a practice is contributing to a growing judicial cosmopolitanism. The paper aims at deepening and reconceptualizing the classic notion of cosmopolitanism, focusing on the concepts of convergence and pluralism rather than of unity and uniformity. I intend to adopt a different perspective to support the judicial practice of looking outside national borders, and to answer criticism related to the universality/cosmopolitanism traditional argument.
First, I analyze the historical evolution of the concept of cosmopolitanism, from the original Kantian theory of the Weltbürgerrecht, through the rigorous monistic interpretation by Kelsen, to the cosmopolitical state approach formulated by Bobbio and Habermas. Second, I will address the major critical arguments regarding the concept of judicial cosmopolitanism: the risk of cultural imperialism and the related controversy concerning the universality of human rights; the question of legitimacy of judges; the threat to state sovereignty. Lastly, I draw conclusions on whether the recourse by judges to foreign case law is legitimate and, if so, how courts should meet the challenges of the contemporary globalised era, contributing to the building of a new global legal order.