The Travelling and the Troubled Language of Human Rights - Dr Julen Etxabe
A growing body of scholarship suggests that judges all over the world – from Canada to South Africa, from India to Israel, from Western Europe to Australia – increasingly consult, and borrow from, the decisions of other courts as persuasive authority. The scholarship on “judicial dialogues” and its cognates (i.e. transjudicial communications, cross-fertilizations, uses of foreign and comparative law, etc.) tells us who engages with whom and how often, suggesting underlying reasons and patterns for this relatively new phenomenon. Whether or not such dialogue of judges amounts to a new “global community of courts” (Slaughter) that underscores the cosmopolitan and universalist ambitions of human rights discourse, the fact is that the traditional hierarchy of sources, as well as conventional forms of legal reasoning and legal authority, are being profoundly challenged.
While some welcome these developments as part of the new global order, others see them as endangering the autonomy and certainty of law. However, neither side of the debate tends to consider that the very act of “travelling” has an effect on the language of human rights, and “troubles” its universalist aspirations. In order to lay out the implications of my argument, I will pursue one fertile example of borrowing, which will serve further to connect the jurisprudence of the European Court of Human Rights, the Supreme Court of Canada, the South African Constitutional Court, and the High Court of Australia.
Julen Etxabe is docent in legal theory from the University of Helsinki and writes in the areas of legal and political theory, law and humanities, and human rights. As a Fulbright scholar, he completed his SJD at the University of Michigan Law School with James Boyd White. He has taught at the University of Michigan (2008-10) and at the Faculty of Law of the University of Helsinki since 2010. He was a research fellow at the Helsinki Collegium for Advanced Studies (2014-2017) and co-editor in chief of No-Foundations: An Interdisciplinary Journal of Law and Justice from 2012 to 2017.
He is the author of The Experience of Tragic Judgment (Routledge 2013) and the editor of three other books, most recently Rancière and Law (Routledge 2018) and Cultural History of Law in Antiquity (Bloomsbury, forthcoming). His current book project entitled Judicial Dialogues and the Conversation of Democracy seeks to unearth a distinct “dialogical” form of judgment that is emerging in the context of International Human Rights and transforming inherited notions of legal reasoning, legal authority, human rights, and the rule of law more generally.
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