Courts and Globalization

There is inevitably a problem of terminology. A professor of government once said that federalism “is what political scientists talk about when they talk about federalism,” and one could add that globalization is what political scientists (and lawyers) talk about when they talk about globalization. Moreover, the more one reads about globalization the more uncertain one is about the underlying assumptions behind the use of the term; and it is particularly difficult to assess the changing role and responses of the national courts of law in the face of globalization. One looks in vain for globalization as an item in the index of leading works—certainly in the United Kingdom—on constitutional and administrative law; but there is at the same time a growing recognition of the global implications of many areas of law hitherto regarded as part of national legal systems, as well as an acceptance of the enhanced role of international bodies and tribunals.

Before one is submerged, however, in the welter of considerations touching on international trade, criminal law, privatization, deregulation, international arbitration, the settlement of disputes, the impact of public international law, the protection of the environment, the Internet and the revolution in technology, international cooperation, regional cooperation, terrorism, antitrust laws, and so much else, it is perhaps desirable to look at some recent cases—in the United States, in South Africa, in the United Kingdom, and in Canada—where values or techniques have been adopted and used in national courts in a way not anticipated only a short time ago. This is not to trespass into a discussion at this stage of adjudication by external institutions. The immediate concern is with the possible internationalization of national laws.