Guest Editor’s Introduction: ‘Global’ Landmark Judgments

Eleonora Bottini

University of Caen Normandy

What makes an apex court’s judgment a ‘landmark’? For the past few years, I have been examining this concept together with a collective of amazing female scholars. Since the first symposium on landmark judgments in Commonwealth jurisdictions was hosted on the IACL-AIDC Blog in 2019, 21 constitutional landmark judgments from jurisdictions all around the world have been analyzed (here - Asia, here – Central and South America, and here – MENA region), contributing to a deductive approach to defining the concept of ‘landmark judgments’. In these symposia, the contributing scholars have chosen one landmark judgment from their jurisdiction to examine, analyzing the context and significance of the judgment as well as the judicial and scholarly debate provoked by it.  Because of the issues in question, the timing of the decision or because of the influential character of a given court, some landmark judgments can initiate a “ripple effect” (see Sahgal in this symposium) into the domestic legal system and contribute to global changes in the interpretation of significant constitutional questions. That is why, for the purpose of the upcoming symposium, the definition of landmark judgments that we have progressively established over the course of the last two years has been completed with a new element: the influence of the judgments outside their legal system. That element defines what we could call “global landmark judgments”, that can be used by foreign courts and scholarship as sources of inspiration – both to follow them as precedents and to reject them. Six scholars have accepted this challenge and joined the project for this new symposium: over the coming weeks Sanya Samtani, Rivka Weill, Sarah Katharina Stein, Nathalie des Rosiers, Rishika Sahgal and Simona Grossi will comment respectively on cases from South Africa, Israel, Germany, Canada, India and the United States. 

Why Global Landmark Judgments? 

The choice of this new angle for the ‘Constitutional Landmark Judgments project’ was motivated by the realization that not all courts are equal in terms of global influence and that some landmark judgments are influential far beyond their national borders. Supreme courts with a long existence, an established judicial tradition and extensive case law have had more occasions to influence the jurisprudence of other courts, outside their legal system. Courts in countries which are usually looked at in comparative constitutional law, that are frequently commented and cited, have also more reasons to be influential than others (and for this reason are called the “usual suspects”). If the initial choice of courts has followed an intuition of what those influential courts might be, the symposium shows that the substantive content of a judgment has a major role in the global influence exerted by courts: when dealing with common constitutional problems, shared by other systems, a court is more likely to be used as a source of inspiration elsewhere. For example, courts dealing with the normative interaction between national and supranational legal orders might be particularly influential. 

Interpretation of fundamental rights is indeed a global question: scholars and courts have been struggling, and continue to struggle, with different ‘generations’ of rights and especially the possibility of distinguishing civil and political rights from socio-economic rights, not only from a theoretical point of view but also in terms of implementation. That is why landmark cases that deal with this issue and suggest a new possible interpretation can influence other jurisdictions. As Rishika Sahgal will explain about the “constitutional revolution” of the Indian Supreme Court in the Olga Tellis judgment, the Court contributed to the identification of the interconnectedness of rights by explaining that the right to life cannot be separated from access to a shelter and livelihood, and in general to the right of a dignified life. 

In South Africa, the standards for a reasonable social demand for access to housing are set by the Constitutional Court in the Grootboom case of 2000, “one of the first socio-economic cases” brought before it. The “reasonableness review” introduced by this judgment influenced the method of interpreting socio-economic rights, especially in the UN Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OPICESCR), as Sanya Samtani will demonstrate.  

The implementation of rights also poses the question of their scope: are fundamental rights only applicable to the relationship between the State and citizens? Or can they be implemented in relations between private citizens? The famous answer to this question about horizontal effect of rights was given by the German Constitutional Court in the global landmark Lüth, for which the Elfes case posed the foundation, as Katharina Stein will explain. 

Global landmark judgments can also represent a different model from the more traditional form of constitutionalism: as in the case of Israel, where Rivka Weill will argue that the Mizrahi decision is “the missing case study” in the “Commonwealth model” that attempts to strike a balance between legislative sovereignty and constitutional supremacy. 

Other cases can constitute landmark judgments because of their political implications, exerting their influence on the political debate both on the national and international level. Abortion is, as Larry Tribe put it, a “clash of absolutes”. As Simona Grossi will show in her post, the Roe v. Wade judgment of the US Supreme Court constitutes such a divisive case that the consequences on the politics of the entire country last until today. Influential not only in the United States, Roe (as well as the other landmark US judgment on abortion rights, Planned Parenthood v. Casey) has been marked as a reference in other more recent judgments decriminalizing abortion in South American countries, such as the cases of Mexico in 2021 and Colombia in 2022. A global landmark can also be used as an object of rejection, in order to protect one legal order from following the same path: in Ireland, in the aftermath of the US Supreme Court judgment, an anti-abortion organization lobbied for the insertion of the prohibition of abortion into the Constitution (which eventually became the Eighth Amendment) to avoid an Irish Roe v. Wade. 

Another common, if not entirely global, phenomenon are the claims of autonomy of regions and communities with specific historical and political characteristics that can spark a will of independence to the point that they contemplate secession from the state. Québec is, of course, one of those cases and the legal solution found by the Supreme Court of Canada has had a “major impact throughout the world”, as Nathalie Des Rosiers will explain. 

An Instrument for Global Comparative Law

This does not mean, as Mark Tushnet points out, that all systems of constitutional review are inspired by US-style judicial review, just because the US Supreme Court is possibly the oldest one in the world. But it does mean that more established supreme and constitutional courts are watched and followed from afar. When coming from those courts, landmark judgments are quoted, referred to and studied as milestones for certain legal interpretations, and this is what the authors in this symposium were asked to reflect on. Of course, the list of courts that have a leading role in comparative constitutional law is not exhaustive and is bound to grow with time and the development of judicial review globally. Language is also a factor that must be taken into account, and the multiplication of courts translating their most significant judgments into other languages, and especially into English, suggests the potential for even more global landmark judgments to emerge (France and Italy, for example, have started this practice quite recently; the Supreme Federal Tribunal of Brazil initiated a case law compilation of cases about COVID-19 abridged and translated into English, and the Association of Asian Constitutional Courts and Equivalent Institutions - AACC SRD - based at the Constitutional Court in South Korea, brings together the jurisprudence, in English, of Asian Constitutional Courts in annual research reports). 

Those influential courts contribute to what can be defined as global constitutional law, but not in the sense most commonly used in legal doctrine, as “strands of thought most of which read (or reconstruct) some features of the status quo of global law and governance as ‘constitutional’ and even ‘constitutionalist’” (Anne Peters, 2015). If international law specialists discuss ‘global constitutionalism’, comparatists insist more on ‘world constitutionalism’ to underline the phenomenon of globalization applied to constitutional law (and for some deemed to be “inevitable”). The very idea of landmark judgments influencing the reasoning of judges, legislators and scholars outside the national legal space is based on the existence of an emerging global discourse of constitutional law. As Ponthoreau explains, this discourse is far from homogeneous and has different implications depending on the descriptive or prescriptive goal that is pursued. The global constitutional law discourse can serve as a form of legitimation for legal solutions when comparative law is used as an instrument for exporting national law. Conversely, comparative law can become a critical instrument to distance oneself from the myth of convergence (of rights, of constitutions). As such, comparative law nourishes a more skeptical approach to globalization by understanding and emphasizing the complexity of constitutional judgments, and the fact that they must be understood in their political and historical context. The case-notes published in the various symposia of the Constitutional Landmark judgments project on the IACL-AIDC blog all insist on paying attention to the political aspects of the judgments being commented on, not only the normative aspects. That shows that a purely technical and positivist approach is not sufficient for this project and would lead to an artificial perception of integration and convergence. Without adhering to a common and specific theory of global constitutional law, the posts in the forthcoming symposium will show the importance of taking into account the circumstances of landmark cases (facts, context, politics, history, culture) in order to maintain the critical approach that is needed to avoid oversimplification. 

While I invite you to enjoy the symposium in the weeks to come, I would like to thank the IACL-AIDC Blog editors for their formidable work and support in bringing it together, as well as the six scholars who accepted to participate for their precious insights in the complex notion of landmark judgments. 

Eleonora Bottini is Professor of Public Law at the University of Caen Normandy

Suggested Citation: Eleonora Bottini, ‘Guest Editor’s Introduction: “Global” Landmark Judgments’ IACL-AIDC Blog (2 June 2022) https://blog-iacl-aidc.org/globallandmarkjudgments/2022/6/2/guest-editors-introduction-global-landmark-judgments.