The United States Supreme Court has come under fire in recent years for its occasional references to foreign and international law. Critics suggest that the practice is undemocratic, displacing democratically developed norms for those of the international community. This Article challenges this critique via reference to the comparative citation practice of successful judiciaries in new democracies around the world. When institutional failures and international pressures threaten the democratic accountability of elected institutions, as they do in most countries in political transition, jurists may strategically use foreign and international law as a tool of "diagonal accountability" to mediate between domestic and international actors in ways that build the legitimacy of national political institutions and create space for democratic deliberations to occur. Thus, contrary to the dominant critique, this Article suggests that when democratic legitimacy is challenged, comparative citation can be part of the solution, rather than part of the problem. Moreover, given the important work that comparative citation can do in transitional regimes, labeling it as undemocratic can itself undermine institutional legitimacy, particularly in new or weak democracies.
The Judicial Role in New Democracies: A Strategic Account of Comparative Citation,
Yale J. Int'l L.
Available at: http://digitalcommons.law.yale.edu/yjil/vol38/iss2/4