Lunch seminar with Ming-Sung Kuo – University of Copenhagen

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Lunch seminar with Ming-Sung Kuo

Beyond Normative Convergence: Reorienting the Role of Judicial Dialogue towards Transnational Nomos-Building

Abstract:

The legal space has extended way beyond national jurisdictions.  With the world order undergoing great transformation, the rule of law has been conceived of in global or transnational terms.  Comparative law, especially comparison of judicial doctrines, sees a renaissance in the pursuit of global rule of law.  Through their legal training and professional experience, judges are regarded as equipped with practical reasoning and the philosopher-lawyer’s mind and thus as specializing in judging underpinned by.  Their decisions and opinions provide the point of access to the normative worlds of individual jurisdictions.  Moreover, with their shared experience and background, judges are expected to gain a deeper sense of the meaning of decisions made by their counterparts in other jurisdictions.  Studying each other’s decisions not only nurtures judicial reasoning but also helps to develop normative convergence on contemporary rule of law issues.  Variously branded as ‘judicial dialogue’, ‘judicial conversation’, ‘judicial synergy’, to name just three, the mutual reference to judicial decisions across jurisdictional boundaries in practice is considered one of the principal mechanisms whereby transnational legal norms are being created.  Normative convergence of doctrines and rules becomes the central concern to this transnational process of judicial lawmaking.

Yet, whether and if so, to what extent judicial dialogue contributes to the cultivation of transnational norms is not unambiguous.  For some scholars, judicial dialogue suggests the way ahead for judges in different jurisdictions to engage in a joint global elaboration on legal principles; for others, it is nothing but an exercise of cross-citation among legal elites, having little bearing on the construction of transnational normative principles and values.   Engaging in this debate, I aim to rethink the role of transnational judicial dialogue as the underpinning of a robust global rule of law in this paper.  Drawing upon Robert Cover’s inspirational discussion of nomos, narrative, and jurisgenesis, I shall argue that the cross-fertilization of legal principles and the convergence of doctrines in judicial dialogue are ‘jurispathic’ and fall short of robust transnational lawmaking as they only generate ‘thin’ transnational values with little power of persuasion.  Transnational law built in this way are susceptible to the criticism of elites’ law, suggesting a top-down approach of lawmaking.  Rather, to appeal to and persuade audiences beyond professionals and experts, transnational legal norms need to rest on what Cover called a nomos, ie, a community of normative meanings underpinned by narratives.  My thesis is that to contribute to the making of robust transnational law, judicial dialogue should redirect the focus of attention away from the mutual learning of doctrines to the articulation of norm-making narratives -- the way in which a specific doctrine or a legal principle is understood and gains its meaning in its legal culture -- thereby laying the foundations for a robust global rule of law enriched with meanings.

All interested are welcome to attend. Registration is not necessary.