Some Key Jurisprudential Issues of the Twenty-First Century

Abstract

How cases are decided by courts depends not only on judges’ views of the merits of the controversy but also on what they conceive their proper function to be and even on their views on the appropriate style and form of judicial decisionmaking. Because common-law judges use different techniques to interpret written instruments, such as treaties, than do civil-law judges, the same treaty provision may be interpreted differently in a common-law jurisdiction than it would in a civil-law jurisdiction. Similarly, because common-law appellate judges have traditionally taken a different view of the scope of discretion to be left to trial court judges than have civil-law judges, attempts to subject decisions rendered by judges trained in one of these traditions to review by supranational courts largely staffed by judges trained in the other tradition have presented some unexpected problems. Professor Christie discusses some recent situations in which both these sorts of situations have already arisen and can be expected to arise more frequently in the future with the increasing globalization of the world’s economy. On the one hand, globalization would seem to require harmonization of legal outcomes; on the other the democratic urge encapsulated in the notion of subsidiarity seems to require deference by supranational courts to the judgments of national courts even if it means toleration of results that would not have been reached by a supranational court if it were to have decided the case on the basis of its own decisionmaking traditions. The conflict between these two imperatives is not easily resolved.