International ‘Dialogue’ among Courts in Light of Democracy

In our globalized world, courts have come to adopt roles that differ significantly from those typically held in the past. Some have pointed out that courts also create a kind of ‘network’ on the international level. The word ‘network’ here refers to the interaction among courts inter alia mutual in reference to their precedents. Some call this international ‘dialogue’. However, it remains unclear what the role of this network of courts or international dialogue among courts is in our globalized legal system. Furthermore, we cannot overlook the fact that in the United States strong criticism has been levied against reference to foreign or international law and precedents in light of democracy. This teaches us we must take democratic legitimacy into account. For that reason, in this essay we examine the functions and limits of international dialogue among courts mainly in light of democracy. In addition, we discuss the dialogue between not only domestic courts but also international courts. Prof. von Bogdandy insists international courts exercise a kind of public authority and this requires a certain democratic legitimization. We submit the importance of transparency, public participants and systematic interpretation of international law. Here we also try to justify the reference to foreign or international judgments by domestic courts. To that end, we introduce several ways/methods of justification, but find in Condorcet’s Jury Theorem the greatest potential. This theorem offers the possibility of both justifying and limiting the transnational references to judgments by not only domestic courts but also international ones.