The Globalization of Towering Judges
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Iddo Porat
The College of Law and Business, Israel
The purpose of my post is to situate the phenomenon of towering judges, discussed in the preceding posts, in a specific historical and global context. The context is the height of what I will call the liberal-cosmopolitan wave in global politics around the 1990s.[1] Towering judges, I will argue, flourished during that period, and this ideological setting provided a background that was conducive to the formation of towering judges. This context is not relevant to all judges in this symposium, and to some more than others, but it relevant to many of them. It is important also because we may be seeing now a global counter-wave or backlash, which raises the question whether the towering judges phenomenon will similarly face a backlash, and how this counter-wave would affect it.[2]
Almost all of the towering judges discussed in this symposium operated in a relatively concentrated period of time – between the mid-late 1980s – and late 2000s.[3] This period is also the height of a global political trend that can be called the liberal-cosmopolitan wave that started after WWII and as a reaction to it. After WWII Europe, and Germany in particular, tried to reformulate themselves as an antithesis to the populism and nationalism of the fascist and Nazi regimes by a new ideological and political order based on the liberal ideals of human rights and human dignity. As a reaction to populism, these ideals are to be promoted not by the masses that were swept by totalitarian demagogues during WWII, but by elite institutions – not least among them the courts, and constitutional courts in particular. Furthermore, nationalism, which proved to be an extremely destructive force during WWII, is pushed away in favor of a universal, transnational, and cosmopolitan view of the polity. And, again, local constitutional courts aided by international judicial and legal bodies – such as the ECtHR and the ICC – are the vehicles of this new political ethos. The wave is intensified and vindicated after the fall of the Soviet bloc, and also the fall of Apartheid, in the early 1990s, in which all newly formed régimes adopt constitutions with bills of rights, specialized constitutional courts, and a strong form of judicial review.
Why is this historical and global background fostering the phenomenon of towering judges and how does it help our understanding of this phenomenon? First, generally, the mere importance of the judiciary in this context may breed more towering judges. As the description above shows, this liberal-cosmopolitan wave has brought judiciaries to a social and political prominence that was never seen before: constitutional courts are in many respects the heroes and torch bearers of this age, and its purest institutional manifestation. This in itself can foster the elevation of particular judicial personalities over others, as the judicial role is enlarged, and as social leadership empowers personal agency.
More specifically, there are two particular manifestations of the liberal cosmopolitan wave that I would like to highlight as affecting and explaining the phenomenon of towering judges.
The first is what I called elsewhere the ‘Platonic conception of constitutional rights’.[4] As part of the liberal-cosmopolitan wave, there arises a conception of constitutional rights as based not on popular will and consent, but, rather, on the objective and universal validity and truth of an ideal set of human rights that is behind them. Similar to the Platonic metaphysics of Ideas and Objects, the texts of the different constitutions are viewed as mere shadows or reflections of the true ideal set of human rights. This shadow is inherently incomplete and flawed, as, unlike the ideal set of human rights, it is the product of human political will in a particular time and place, and judges therefore draw their legitimacy from the ideal universal set of rights and attempt to bridge the gap between the local text and the universal ideal through creative interpretation.
Two judges in particular fall clearly under such model of rights, and it can explain partly why they were towering judges and how: – Barak in Israel and Sólyom in Hungary. Both saw themselves as fulfilling a historical task of bridging the gap between their flawed and partial constitutions and a constitutional ideal, and of bringing their societies to meet a liberal constitutional global standard. This even if the task requires acting not only as judicial interpreters of a constitution but as judicial writers of a constitution – as Gábor Attila Tóth put it in his post – a judicial constituent power. Such a judicial model requires design and individual effort – and hence a towering judge – and cannot be easily achieved by a collegial body moving forward incrementally as an unconscious by-product of deciding cases.
Other towering judges in this symposium do not go as far as Barak and Sólyom, but also share a very expansive and non-literalist approach to rights interpretation, and a similar willingness to acknowledge new rights that are in the Platonic global template but not in their own constitutions. This includes Bhagwatti in India, who created social rights out of the right to human dignity, the Canadian Supreme Court under McLachlin that was very expansive it its rights jurisprudence, and even Mason in Australia, who found the right to political expression to be implied in a purely institutional constitution, self-consciously promoting his country towards the global standard of having a bill of rights.
The second aspect that follows from the context of the liberal-cosmopolitan global wave is what was called by Anne Marie Slaughter, Transjudicial communications,[5] and the creation of a global community of constitutional judges, also culminating around the mid-1990s. The Yale Global Constitutional Seminar, which was founded in 1996, is a good example of such a judicial international club that fosters the interactions and exchanges of ideas between judges of different countries, and in which several of the towering judges in our symposium participated – including Barak, Sólyom, and Manuel Cepeda from Columbia.
Several things are to be noted about this global judicial club. First, and following from the previous point, such community can be seen as a global manifestation of the Platonic conception of constitutional rights – each judge looks beyond the particularities of his or her own constitution to see the shared universal global template, and in that sense all these judges are indeed a community engaged in the same endeavor and sharing ideas about the best understanding of a shared ideal template. The use of foreign law in constitutional decisions, another attribute of many of the towering judges, can also be understood in this context.
The second important aspect to note is that this kind of global community creates particular incentives, which may be conducive to the creation of towering judges. One does not get included into this community, and into the Yale Seminar, by being what Mark Tushnet termed a "merely competent" judge. One needs to excel and indeed tower over other judges in order to be included in this club. In addition, the type of excellence is usually directed in a particular liberal and human rights protecting direction, which creates an incentive to a race to the top in rights expansion, and rights protection. A judge that towers in being conservative – an Australian Dixon or an American Scalia – will probably not fit so well in this circle, since his claim to fame rests locally, in protecting a local understanding of his constitution, and thus he has less to share with other judges in other places.
These are just some of the aspects in which the global-historical context affected towering judges. Time will tell, whether the current global backlash against liberal-cosmopolitanism will also affect the phenomenon of towering judges and how.
[1] There could be other titles for this period, including the age of “global constitutionalism”, “democratic constitutionalism” or “human rights”. For a concise description of the height of this age, and also its possible demise, see Owen Fiss’s, Remarks on the 20th Anniversary of the Yale Global Constitutional Seminar.
[2] The literature on the current backlash is by now extensive. See e.g. Mark Graber, Sanford Levinson and Mark Tushent (eds.), Constitutional Democracy in Crisis? (2018). Tom Ginsburg and Aziz Huq How to Save a Constitutional Democracy (2018).
[3] This includes judges Mason, McLaughlin, Chan, Barak, Cepeda, Bhagwati, Shrestha, Chaskalson Sólyom and Valenzuela, all of which operated partly or entirely within that period. For the full list of towering judges included in the symposium, see the Introduction to the symposium.
[4] Iddo Porat, The Platonic Conception of the Israeli Constitution in Rosalind Dixon and Adrienne Stone (eds.) The Invisible Constitution in Comparative Perspective 268 (2018).
[5] Anne Marie Slaughter, A Typology of Transjudical Communications, 26 U. Rich. L. Rev. 99 (1994).
Iddo Porat is an Associate Professor of Law at the College of Law and Business, Israel
Suggested citation: Iddo Porat, ‘The Globalization of Towering Judges’ IACL-AIDC Blog (5 April 2019) https://blog-iacl-aidc.org/2019-posts/2019/4/5/the-globalization-of-towering-judges
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