DEFERENCE AND NATIONAL COURTS IN THE AGE OF GLOBALIZATION: LEARNING, APPLYING, AND DEFERRING TO FOREIGN LAW

Abstract

“Deference” is among the most under-analyzed concepts in legal theory. The term “deference” can describe many different phenomena, ranging from full adherence to another’s decision to non-trivial weighting of a prior determination; and it can result from many different legal (and non-legal) sources, ranging from constitutional command to voluntary abstention. We plan to explore the entire scope of the concept of deference in a forthcoming book, but in this paper we focus solely on deference as the discretionary decision by one fully competent agency of government to shift the power to make a decision to another interpretative agent. All government institutions can act deferentially, but we specifically address the practice of deference by the judiciary. Judicial deference is an interesting subject given the constitutional role of judges, the independence that they enjoy, and the critique of deference as an illegitimate delegation of powers. We examine a specific example of this practice, which we believe is of concern to jurists in all jurisdictions: national judges’ discretionary decisions to apply foreign legal materials, especially that of fellow judges from other jurisdictions. Our analysis focuses on the delicate differences between a court being “inspired” or “persuaded” by or “deferential” to foreign legal materials. We conclude that much of what sometimes goes by the label “deference” does not meet the definition that we employ, and we further examine the implications of actual instances of deference for national sovereignty. As we emphasize in the paper, as common law jurists, we look forward to comments and corrections from jurists familiar with civil law and other legal systems