This article examines how global constitutional norms are received and reconfigured by South Asian judiciaries. It makes two central claims. First, it argues that India, as the largest state in the region, acts as a filter through which Bangladesh and Sri Lanka receive both structural and rights-based global norms. Second, it contends that Bangladeshi and Sri Lankan courts adopt distinct approaches to the Indian case law. While Bangladesh mostly converges with the Indian jurisprudence, Sri Lanka engages with it but does not wholly adopt its conclusions. The article puts forward a preliminary explanation for these distinct approaches based on differences in the constitutional structures and political histories of Bangladesh and Sri Lanka vis-à-vis India.

Studies of global constitutionalism have focused on the transnational movement of constitutional law through the citation of foreign judgments. However, little attention has been paid to the movement of constitutional judges themselves. This article considers how the foreign judges who sit on courts of constitutional jurisdiction in Pacific island states can be understood as part of the phenomenon of global constitutionalism. It identifies three ways in which foreign judges can be agents of global constitutionalism: as mechanisms for the diffusion of constitutional ideas, as expressions of global constitutional values and as objects of transnational legal transfer. An empirical analysis comparing the citation practices of local and foreign judges in constitutional cases in nine Pacific states suggests that the use of foreign judges on constitutional courts does contribute to the international movement of constitutional ideas. However, a critical analysis of foreign judges as expressions and objects of global constitutionalism sheds light on a range of tensions in the role of constitutional judges and understandings of global constitutionalism.

Critics challenge international courts for their interference with domestic democratic processes and alleged violations of rule of law standards: they claim that these guardians of the rule of law are not well guarded themselves. These concerns should not be dismissed too quickly as mere disgruntled venting by populist politicians. This article focuses on regional human rights courts and argues that the same interests and values that justify rule of law standards of impartiality, independence and accountability domestically also justify similar standards for international courts. Focusing on the European Court of Human Rights and its doctrine of the margin of appreciation, the article demonstrates how this doctrine may contribute to fulfilling the rule of law but at the same time may also endanger it. This requires changes to the doctrine to ensure that the core rule of law standards of predictability and protection against arbitrary discretion are respected.

Can citizens’ interest in non-domination be satisfied by the principle of legality and the guarantee of non-arbitrariness? This comment argues that the rule of law requires an internal organization of law that entails an additional positive law, through conventions, common law, judicial precedents or constitutions, which the sovereign cannot legally override. In the supranational context, the rule of law requires an equilibrium of consideration and respect between different legalities by avoiding a legal monopoly of a supreme authority and fostering the interaction among orders based on content-dependent reasons. The same applies to the relations between the ECtHR and member states. The margin of appreciation, taken as a reminder of the complexities of international institutional relationships, embodies a non-domination caveat to consider (the reasons from) the ‘normativities’ of different orders. Nonetheless, as an argumentative tool of the Court, it allows for an often-disputed discretion. Accordingly, better refined guidelines and justifications are required.

This article argues that this special section reveals a practical global constitutionalism, or one that integrates a liberal constitutional set of ideas with the histories and practices of Asian states.

The European Court of Human Rights (ECtHR) is an international court operating in the international legal order. Its judgments are not given direct effect in national law. In this sense we have a system of legal pluralism between international and national law. But the ECtHR has constitutional effects in national law through the weight placed on the Court’s practice by national courts. Therefore, constitutional principles are applicable in the interaction between the ECtHR and national courts. This article discusses the transnational constitutional aspects of the Court, and how this should guide the roles of, respectively, the ECtHR and national courts.

This short comment offers two additional arguments, missing from Geir Ulfstein’s account, which may bolster the case for constitutionalisation of the ECtHR. The first is about the ‘pilot judgments’ through which the Court addresses systemic deficits in national legal systems and thus ensures a minimal synchronisation of human rights protection throughout the CoE system. The second manifestation of constitutionalisation of the ECHR system is the increasing role of the ECtHR in the implementation of its own judgments. Ultimately, the legitimacy for the constitutional ambitions of Strasbourg Court should be located primarily in the argumentative resources of the court and in its pursuit of ‘public reason’.

This article sheds a critical light on judicial dialogue when its purpose and meaning are taken beyond cross-fertilization and comparative reasoning. It cautions against a conceptualization of judicial dialogue as a means to foster commonalities between courts and to legitimize judicial governance. The argument develops from an idealized notion of a ‘transnational judicial public sphere’. In this sphere, domestic, regional and international courts ideally form common opinions through dialogue and pursue common purposes. The danger of this understanding is to construct a new paradigm that not only overlooks important differences in the interest, influence and opinion of courts, but also overstates the socio-normative significance of exchanges between courts and of judicial governance in general. The critical potential of judicial dialogues lies less in the formation of commonalities or in the legitimization of judicial authority than in bringing alternatives and a plurality of opinions to the fore.

The comment expands the logic of the critique of the ‘judicialisation’ in the global era and suggests that arguments in support of this development often engage in confirmatory research which weighs the ‘evidence’ in light of our wishes and political projects. The talk about ‘learning’ and ‘dialogue’ cannot sustain this form of judicial paternalism (at best) as an instantiation of emancipation or celebrate it as a victory for law by dispensing with politics. It is just a politics by other means. But in this politics some traditional remedies for insuring the accountability of the ‘rulers’ (or rule-handlers) have been weakened. The comment adds several critical observations about the practices of discourse, law, politics and judging which cannot camouflage the problem of power and its legitimisation. Thus we had better consider also a political alternative which relies on a variety of different institutional solutions where courts have to compete with other institutions without fixed hierarchies and where different sources of legitimacy stand in tension with each other.