Liste, Philip and Antje Wiener

Lost Without Translation?: Cross-Referencing and a New Global Community of Courts

Anne-Marie Slaughter has described the “new world order” as characterized by some “conceptual shifts,” including an increasing cooperation of domestic courts across nation-state boundaries. The cross-jurisdictional referencing of legal norms and decisions, as Slaughter holds, would lead into a “global community of courts.” This article takes issue with that observation. We argue that for such a community to emerge, cross-referencing would need to be followed by an effective transmission of meaning from one (legal) context to another. Following recent insights in the field of International Relations norm research, however, we can expect such meanings to be contested-in particular, when different cultural repertoires operate on either side of the interactive processes. Therefore, a need for translation ensues (i.e., a translation of constitutional norms or concepts from one legal order into another).

The conditions of a “global community of courts” are thus not easily met. In this respect, the aim of the article is to put Slaughter’s thesis to an empirical test. To extrapolate the “normative structures of meaning-in-use” the article builds on the analysis of semi-structured interviews with legal practitioners who were involved in the jurisprudence on anti-terrorism measures in two countries, Canada and Germany. During this empirical work, we found a “global community of courts” not yet emerged. Although the concept of community does matter as an explanatory reference for research on legal cross-referencing across national borders, our research suggests that practice of cross-referencing is still more “culturally” fragmented than unified, and normative references are more regionally diverse than globally shared. Moreover, the normative context within which referencing takes place remains strong, so that the meaning of "foreign" concepts is often constructed by means of contestation rather than transferred from one contest into another.

Read the article here.

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