The Substance of the Constitution -- Engaging with Foreign Judgments in India, Sri Lanka and South Africa
The last two decades have seen an expansion of judicial power in developing and newly democratizing countries across the globe. The enhanced role for the judiciary, which some scholars have categorized as a “juristocracy,” has accompanied a dialogue or at least a tendency for judges to look beyond their national borders at other courts for assistance in resolving difficult national, legal, and political disputes. The Supreme Court of Pakistan has drawn on the rationale of India’s apex court to support public interest litigation, while India’s courts have referred to judgments from South Africa, the United States, Canada and the European Convention on Human Rights (ECHR) to argue for a right to life with dignity. Such engagement with foreign laws has provoked criticism from influential judges like Justice Antonin Scalia of the U.S. Supreme Court for eroding national sovereignty and even imposing foreign interpretations on culturally contextual national issues.