How judges think in a globalised world? : European and American perspectives.
Date: 2014-02-12
Institutions: European University Institute
Subjects: European Union, United States, globalisation, international law, judicial cooperation, legal profession

ISSN  2314-9698

Issue 2013/07   
December 
2013

How Judges Think in a 
Globalised World? European and 
American Perspectives
Authors: Marta Cartabia1 - Sabino Cassese2  

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Highlights
How is globalisation impacting the role of judges? How does it affect 
the nature of the litigation faced by courts? Is there an increased “del-
egation on courts” of social and economically controversial issues, and 
how should they deal with it? What is the proper and legitimate use 
of foreign and international legal sources? To what extent do judicial 
dialogues take place, and what is their form? Is there a global commu-
nity of judges and what is it? Is there a convergence on the models of 
judicial reasoning and deliberation? 

These were some of the questions addressed by members of European 
and American higher courts and leading academics at the High-Level 
How  �udges  Think  in  a  �lobalised  World?  Europe-
Policy  Seminar  “How  �udges  Think  in  a  �lobalised  World?  Europe-
an  and  American  Perspectives”  at  the  European  University  Institute 
on  14  December  2013.  The  seminar  aimed  to  address  the  issues  of 
“judicial communities” and “judicial dialogues” and the  forms these 
may take in the context of the increased transnational and interna-
tional character of litigation, as well as the issue of avoiding judicial 
conflicts  and  developing  a  transnational  consensus.  The  tradition-
al  dimension  of  the  role  of  judges  was  also  put  under  review,  high-
lighting  that  judges  do  not  only  decide  cases,  but  they  also  develop 
general principles and for this reason are better suited than other in-
stitutions to perform their functions on the global stage. Finally, the 
proper use of foreign and comparative law was taken into considera-
tion, and the costs and benefits of this practice were widely discussed. 
___________
1.   Marta Cartabia, Professor and Judge of the Italian Constitutional Court 

2.   Sabino Cassese, Professor and Judge of the Italian Constitutional Court

globalgovernanceprogramme.eui.eu

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Background

There  is  no  doubt  that  courts  are  to  be  included 
among the main actors of legal globalisation. Whereas 
parliaments, governments and in general democratic 
institutions  do  not  fit  in  with  large  systems,  courts 
seem to be suitable for the grand stage.

This fact is remarkable and almost ironic: it proves 
that  a  dramatic  change  is  taking  place  in  the  judi-
ciary.  After  all,  the  judicial  function  has  tradition-
ally  been  considered  intrinsically  “national”  or 
“domestic”. Why are courts now more affected than 
other  branches  of  government  by  the  globalising 
process? Is the judicial branch more entitled than the 
other branches of government to act as a transmis-
sion belt between national and foreign legal orders? 
Why are courts at the forefront of this discussion?

This  subject  goes  under  the  heading  “judicial 
dialogue”,  a  vague  and  ambiguous  expression  first 
used by sociologists: while judges are obliged to estab-
lish  a  “dialogue”  with  private  parties  before  them, 
they cannot legally exchange ideas with other courts 
on each individual case, but only in general terms.

Be that as it may, it is a fact that stringent intercon-
nections  among  courts  are  taking  place  all  around 
the  world.  They  do  not  necessarily  require  formal 
procedures;  they  may  occur  in  an  informal  and 
implicit manner.

In  order  to  appreciate  the  nature  of  these  judicial 
interconnections  that  are  developing  in  the  global 
context, two preliminary considerations are required: 
one has to do with the judicial method and the other 
with the contents dealt with by courts. 

From the methodological point of view, courts enjoy a 
number of qualities appropriate for a global context: 
they  are  re-active  and  not  pro-active,  and  they 
engage in peer-to-peer dialogues;  therefore, judicial 
interactions  can  be  bi-directional  and  adapt  recip-
rocally. Courts have great flexibility; they can solve, 

but  also  avoid  problems,  they  can  adapt  to  a  case 
and  experiment  with  new  solutions,  and  they  can 
proceed  incrementally,  on  the  basis  of  precedents 
and by successive adjustments, advancing and step-
ping  back.  Courts  can  also  recognise  and  establish 
general principles, standards of decisions, doctrines 
and tests, etc., that are broad enough to be adjusted 
according to different contexts. In short, the judicial 
method appears to meet the needs of globalisation, 
which requires harmonisation without overlooking 
diversity, 
standardisation  without  disregarding 
pluralism,  and  generality  without  ignoring  singu-
larity. Judge-made law constructs general principles 
from specific cases, so that it is naturally inclined to 
bridge  the  opposite  poles  universal-particular  (like 
the cosmopolitan citizen described).

From  the  contents’  point  of  view,  an  increasing 
number of issues brought to the bench have a “global 
side”. National courts are increasingly called to solve 
disputes in which global or foreign law is involved: 
disputes  relating  to  people’s  mobility,  immigration, 
and  the  like;    disputes  related  to  foreign  invest-
ments;  disputes  involving  global  and  supranational 
standards, such as trade, environment and sport etc.; 
disputes involving “individual rights”. 

As  to  this  last  point,  the  role  of  courts  as  “human 
rights  adjudicators”  is  rapidly  evolving,  along  with 
the  amplification  of  “rights  talks”.  Since  the  last 
decade  of  the  20th  Century,  an  increasing  number 
of  human  rights  and  individual  rights  have  been 
included in new international conventions (such as 
the  conventions  on  the  rights  of  children  and  that 
on the rights of disabled people), further enriched by 
optional  protocols.  Moreover,  new  instruments  for 
the protections of human rights have been enacted 
at  regional  (EU  Charter  of  fundamental  rights), 
national (new Constitutions) and local (Catalan and 
other  local  Statutes)  level.  Even  more  rights  have 
been  expounded  by  courts  and  other  administra-
tive  bodies.  The  “rights  language”  is  often  consid-

2 ■  Global Governance Programme ■ Issue 2013/07 ■ December 2013

ered as the most appropriate one when dealing with 
new challenging social and legal problems (i.e. non-
discrimination  issues  and  new  problems  relating 
to  the  development  of  new  technologies  and  the 
Internet).  Indeed,  this  evolution  greatly  affects  the 
role  of  judges,  first  and  foremost  because  it  asks 
the courts to become protagonists of social change, 
but  also  because  the  more  a  rights-based  culture 
thrives,  the  more  translational  judicial  interactions 
are fueled: individual rights have a natural vocation 
to “trespass” the borders of a single country, because 
they  move  around  with  the  individual.  One  might 
therefore say that controversies regarding individual 
rights are global – or universal – by nature. Human 
rights are one of the most fertile grounds for judicial 
globalisation. 

Moreover, one needs to consider the idea that globali-
sation per se also implies judicial globalisation: There 
are now approximately 120 supra-national and global 
courts,  and  an  equivalent  number  of  quasi-judicial 
bodies.  These  courts  belong  to  the  global  space, 
establishing links with national legal orders and with 
national courts. For example, the Strasbourg Court, 
through the margin of appreciation, the proportion-
ality control and the “consensus” doctrines, and the 
Luxemburg  Court,  through  comparison,  by  estab-
lishing which national law fits better the principles of 
the higher law and, indeed, by means of the prelimi-
nary ruling procedure.

In legal scholarship we can single out two different 
approaches:  refusal  (defensive  attitude  of  the 
domestic legal system) and acceptance (some judges 
are  strong  advocates  of  foreign  law).  The  debate 
about the use of foreign, comparative, global or trans-
national  law  in  judicial  decisions  law  has  become 
topical  in  American  contemporary  constitution-
alism. A symbol of this trend is the great debate at the 
time of the US Supreme Court decision on Lawrence 
v. Texas (2003). The same debate later took place in 

Europe  and  in  other  countries,  though  stripped  of 
its original ideological strength. The question could 
be  raised  as  to  why,  generally  speaking,  these  kind 
of  methodological  issues  are  more  divided  in  the 
US than in Europe? Originalism, the living constitu-
tion and also the use of foreign law are hot “political” 
matters  in  the  US,  whereas  they  appear  to  be  less 
controversial in Europe. If this is true, why so? 

Key issues 

How Do Courts React to �lobalisation?

Looking at the practice of national and supranational 
courts, one cannot help but note that transnational 
law affects judicial activities in many ways.

Courts decide cases on the basis of global law, because 
they  are  often  required  to  apply  global  standards 
and  global  law.  Regardless  of  the  monist  or  dualist 
approach to international law, national legal systems 
are  bound  to  conform  to  an  increasing  number  of 
global standards and therefore Courts are bound to 
decide cases on the basis of global rules.

At a different level, even when they are not subject 
to  global  law,  Courts  often  use  either  foreign  law 
without even quoting it, or cite foreign / global law as 
well as foreign / global judicial decisions for the sake 
of argumentation and as an ingredient that enriches 
the legal reasoning, or they use foreign case law as 
precedents (in this case, precedent is not an instru-
ment  to  ensure  consistency,  but  only  a  connecting 
device). 

The  explicit  use  of  foreign  decisions  concerns  a 
small  group  of  states  –  all  common  law  judges  and 
English  speaking  countries  (South  Africa,  Namibia, 
Canada,  Israel,  Australia  and  Ireland)  –  with  the 
notable exception of the US Supreme Court, which 
almost  never  quotes  other  courts,  but  is  the  most 
quoted  among  the  foreign  courts.  But  –  as  it  has 

3 ■ How Judges Think in a Globalised World? European and American Perspectives

been noticed – “Courts don’t do what they say and 
they don’t say what they do”. As a consequence, the 
practice of referring to foreign case-law is likely to be 
much more popular than that.

Moreover,  on  the  European  continent,  national 
courts are bound by the Strasbourg and Luxembourg 
courts.  Not  only  their  decisions  impose  European 
rules and principles on national courts, but they are 
also a vehicle for the circulation and the free move-
ment  of  judicial  decisions  and  foreign  law  all  over 
the continent. European courts collect and select the 
legal tradition of the member states, and circulate it.

This practice poses a major problem: how to avoid 
the  cherry-picking  danger?  How  to  avoid  an  arbi-
trary  use  and  abusive  mis-interpretation  of  foreign 
case law? Moreover, it raises a democratic difficulty: 
why should a judge apply rules and legislation that 
originated in a different country?

A relevant point of access of global law in courtrooms 
is  through  common  principles:  judges  do  not  only 
decide cases, they also develop concepts. Judges take 
part  in  the  legal  globalisation  process  of  developing 
and borrowing general principles and setting judicial 
standards. A good example of this is the proportion-
ality test, which from the Prussian courts was trans-
planted  into  European  law,  and  thence  into  French, 
Italian,  and  British  judge-made  law.  Nowadays,  the 
proportionality  test  is  a  pervasive  standard  used  in 
all  sorts  of  controversies  related  to  administrative, 
constitutional, international, European law, and even 
in criminal law (which is one of the domestic branches 
of law still carefully protected from global influences).

Another  spreading  idea  is  the  interpretation  “in 
conformity to” or “according to”: it requires judges 
to  construct  statutes  and  other  written  precepts  so 
that they are consistent with higher binding princi-
ples – be they constitutional, or European or supra-
national legal principles. This method of interpreta-
tion has had great success because it is able to avoid 

conflicts  among  legal  orders  and  among  courts.  It 
is now very common in many European countries, 
it is a mandatory principle in EU law and it is also 
familiar  to  the  US  judicial  practice  (“avoidance”  in 
the US language). 

In  order  to  develop  judicial  transnational  connec-
tions, interpersonal contacts matter, and this is the 
reason  why  judicial  networks  mushroom:  national 
courts  are  developing  the  practice  of  translating 
their  decisions  into  an  accessible  language,  they 
organise  bi-lateral  or  multi-lateral  meetings,  and 
they  negotiate  agreements  for  common  interpre-
tations  of  legal  concepts  and  set  up  associations  of 
courts, such as the “common interpretation” of the 
European  texts  approved  in  the  Skouris  –  Costa 
agreement.  Moreover,  one  should  not  overlook  the 
forming of integrated, epistemic legal communities, 
encompassing clerks and referendaires, lawyers and 
advocate generals, private practitioners, law profes-
sors  and  states’  advisors,  NGOs  and  amici  curiae, 
acting as influential bridge-builders.

Meeting  people  is  a  powerful  form  of  judicial 
dialogue; probably a more effective kind of dialogue 
than  simply  quoting  cases  or  using  procedural 
devices.  This  explains  the  blossoming  of  judicial 
networks: 

•	 in  Europe,  some  of  them  are  created  by  the 
European  legislature  (EJN  –  European  Judicial 
Network;  Eurojust;  European  Judicial  Network 
for  civil  and  commercial  matters,  Council  of 
Europe’s  Consultative  Council  European  Judges, 
for example); 

•	 others  are  created  by  the  judiciaries  themselves 
(the  conference  of  European  Constitutional 
Courts;  International  Association  of  Supreme 
Administrative  Jurisdictions;  Associations  of  the 
Councils  of  States  and  supreme  administrative 
Jurisdictions of the European Union); 

4 ■  Global Governance Programme ■ Issue 2013/07 ■ December 2013

•	 some are established by para-judicial bodies, such 
as  the  European  Network  of  Councils  for  the 
Judiciary, or by barristers, for example the Council 
of Bars and Law Societies of Europe;

•	 many  others  are  hosted  by  academic  institutions 
that  set  up  forums  where  judges  and  academics 
meet in order to create bridges between research 
and practice.

Developing transnational legal communities as epis-
temic communities implies recognition that the law 
is not only national or domestic; that there is another 
layer of law that is common to a majority of national 
legal orders; that there is a trans-nationalist canon, 
based  on  some  common,  shared    principles,  the 
rule  of  law  and  procedural  democracy  (notice  and 
comment, duty to give reasons judicial review); and 
that  the  line  between  national  and  transnational  is 
blurred, in spite of many differences in the degree of 
acceptance of this body of law at national level.

�lobalisation and �udicial Reasoning

Focusing more specifically on judicial reasoning: is 
this  unavoidable  impact  of  globalisation  affecting 
judicial reasoning and sentencing? 

To address this question, two elements are relevant: 
legal  education  and  legal  culture  of  judges  on  one 
hand, and judicial decisions addressees on the other.

It  is  a  fact  that,  generally  speaking,  the  most  senior 
judges,  who  are  at  the  top  of  the  supreme  courts, 
were  educated  neither  in  international,  European, 
comparative  nor  in  global  law.  Is  this  a  barrier  or  a 
brake  slowing  down  the  globalising  process?  Is  this 
fact compensated by the community of people (clerks, 
lawyers, academics) that works around the courts? 

Legal  education  follows  different  traditions.  As 
noticed,  one  can  find  more  transnational  judges 
in  common  law  in  English-speaking  countries: 
is  this  just  a  matter  of  language  or  does  it  reflect  a 

fundamental  divide  in  legal  education  traditions? 
Continental legal education is founded on codes and 
has  a  systematic,  rational  approach.  Anglo-Saxon 
legal education is instead based on cases and has a 
problematic  approach  as  regards  reasonableness. 
The  latter  appears  to  be  more  suitable  for  judicial 
globalisation.

As  for  judicial  decisions  addressees,  for  whom  do 
judges write their opinions? What is their audience? 
Is  it  other  judges,  political  actors  in  their  national 
system,  the  parties  affected  by  their  decision,  the 
academia,  the  media,  the  global  arena?  The  audi-
ence of a judicial decision accounts for the style of 
sentencing and affects the different models of judi-
cial opinions: separate opinions, French-style short 
sentencing as opposed to narrative and argumenta-
tive German and American styles, numbers of obiter 
dicta, decisions strictly connected to the petitum or 
enriched with general principles and the like, are all 
elements  that  are  under  discussion  along  with  the 
impact of globalisation on courts’ activities.

Policy Recommendations

Judicial  globalisation  is  an  inevitable  fact.  What 
should a national court, acting on the global stage, 
do? There are two possibilities: every judge can stick 
to  an  import/export  activity  of  rules  and  case-law 
from  and  towards  the  global  arena;  or    he/she  can 
contribute  to  developing  transnational  values  and 
principles.  In  the  first  case,  judges  act  as  passive 
recipients  of  transnational  law/global  standards.  In 
the second case, judges become actors and agents in 
the global judicial community. In fact, the globalising 
process  enhances  judicial  discretionary  powers, 
because it allows them to interact with other foreign 
colleagues or with global courts by means of formal 
and informal dialogues. Furthermore, it encourages 
the development of general principles, distilling the 
basic  rules  of  global  governance  from  the  specific 

5 ■ How Judges Think in a Globalised World? European and American Perspectives

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cases  brought  before  the  bench,  and  although  it 
develops common standards, it leaves room to adjust 
global law to the national context.

There are prices to pay, one of which is the following: 
As the global space is highly fragmented, there are 
many  self-contained  legal  orders  (the  law  of  trade, 
the law of the sea, the law of environment). It is there-
fore  necessary  to  establish  not  only  vertical  links, 
(between  domestic  and  global  legal  systems),  but 
also  horizontal  links  (between  global  legal  orders). 
The development of general principles can serve this 
purpose.

Are  the  American  concepts  of  exceptionalism  and 
imperialism a danger for judicial interaction? Recent 

Supreme  Court  nationalistic  jurisprudence  should 
not be considered as the rule, but as an exception, as 
the majority of American courts are as open to the 
reception of foreign law as courts of other countries. 
And  American  imperialism  may  in  the  long  run 
appear  less  threatening,  because  if  the  US  govern-
ment  and  legal  community  want  to  export  certain 
basic  principles,  they  are  obliged  to  submit  them-
selves  to  the  same  rules.  America  is  contributing 
too much to the education of the entire world legal 
community  to  simultaneously  refuse  to  follow  the 
basic principles that it are teaching (or attempting to 
teach) the world.

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