Domestic legitimacy transcends borders.

National Supreme Courts are amongst the actors that feel the exigencies of globalisation most keenly and urgently, for several reasons. First, these institutions are faced with the intellectual task of taking legal notions that have traditionally found their sole application within the domestic sphere and successfully transposing them to an internationalised environment. These notions (e.g. legal unity, judicial legitimacy and, more generally, the political ideals of democracy and accountability) are in need of a critical re-examination in light of globalisation if they are to retain their foothold in the modern world. Second, and more importantly, Supreme Courts are charged with responsibility for dispensing justice at the national level within a world in which problems frequently transcend borders. Ultimately, the task incumbent upon Supreme Courts is simply ‘to deliver the goods’, despite the changing contexts precipitated by globalisation. The expectations that these domestic institutions must meet therefore include certain standards of what might be called ‘output legitimacy’. In other words, national Supreme Courts are required continually to ensure an adequate measure of domestic justice, despite the increasing interconnectedness of legal orders.

This area of inquiry is one which, in recent years, has attained some degree of prominence in various scholarly circles, although not always with the same degree of urgency. A particularly salient focus for contemporary scholars is the emergence of large quantities of cross-cutting formal and informal legal relations between domestic jurisdictions that are largely unprecedented in terms of frequency and visibility and, most importantly, defy classification according to the traditional taxonomies of domestic and international law falling somewhere in between.1 Significantly, the fluidity of boundaries between domestic and international legal orders is primarily the product of domestic judicial agency. Judges and other legal actors cite each other’s decisions, engage in transnational dialogue, attend conferences, exchange best practices and generally become increasingly aware of and attentive to both transnational and international legal developments. And again, it must be reiterated that these phenomena occupy a middle ground between the domestic and the international legal order, being neither wholly domestic nor wholly international. In general, in the remainder of this article, these processes will be referred to as judicial internationalisation.