18 September 2008

Provost on 'Judging in Splendid Isolation'

Rene Provost (McGill Law) has posted 'Judging in Splendid Isolation' on SSRN (Am J Comp L 2008, no. 1). This is the abstract:

The article, taking the reception of international law in Canadian law as a case study, argues that the paradigmatic picture of the judicial function has been evolving as a result of the increased reliance on international legal norms by domestic judges. The place given to customary international law and the constitutional process for consenting to the ratification of treaties signal a dual layer of perceived lack of legitimacy on the part of judges. The first relates to the issue of bindingness of international norms on the state, and the concern of judges that they are not in a position to introduce into domestic law legal standards which have not received acceptance by a more representative branch of Government. The second touches on bindingness of international norms in the state, and the desire of judges to protect the integrity of the constitutional balance of power among the executive, legislative and judiciary. Both perceived shortcomings of judicial legitimacy are evolving, however, as reflected in doctrinal and judicial discussions of a 'constitutional dialogue' among the three branches of Government (internal dialogue) as well as a 'transjudicial dialogue' involving judges and other actors belonging to different states (external dialogue). A look at the presumption of conformity of domestic law with international law, the doctrine of legitimate expectations as flowing from treaty ratification, and the usefulness of declarations of incompatibility of national law with binding international obligations highlights a shifting paradigm: judges are moving from a self-conception grounded in splendid isolation to one which projects the judicial function as more proactive and necessarily collaborative.

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