General Principles of Law and Transnational Judicial Communication

Abstract

In the globalised legal context, the national courts in Western legal systems increasingly interact with each other as well as with courts at the regional and international levels. Judges exchange views and experiences in networks and through visits and conferences and they consult international, European and foreign legal materials when deciding domestic cases. Which role do general principles of law play in this developing transnational judicial communication? This chapter investigates this question on the basis of a comparative and socio-legal analysis of five legal systems (Canada, United States, United Kingdom, France, Netherlands), drawing information from constitutional theory and from interviews with judges in the highest courts of the selected systems. The analysis reveals that the use of foreign legal sources by the examined courts has become a common practice in the daily business of judging cases. The examples given by the interviewed judges provide illustrations of the specific practices of each court, highlighting a relatively high number of cases in which general principles of law played a role. The legal-theoretical analysis clarifies that the added value of the developed practices of the courts is nuanced by the legal factors of authority of legal sources, legal tradition and the particularities of national legal systems. Moreover, contextual factors related to individual judicial approaches and concerns of effective and efficient judicial decision-making influence the reference that is made to comparative law, including foreign general principles of law.