A fab speech from former chief justice of India – Mr. K.G. Balakrishnan.A very different and important perspective on impact of globalisation. Realted to area of law and economics..
He says globalisation impacts legal systems in two ways – One is the legal challenge thrown to globalisation because of rise in international trade etc. Two, the impact of globalisation on legal sytems:
All of us associate globalisation with the free movement of capital, labour, goods and services across national borders. However, these parameters of economic globalisation cannot be viewed in isolation from other aspects such as the free exchange of ideas and practices. Especially from the viewpoint of developing nations, the benefits of increasing foreign investment in any particular sector should be assessed not only in terms of capital-flows and wealth creation but also in terms of technology-transfer and the infusion of know-how and best practices. From this perspective the legal systems in various countries have a lot to learn from each other – both in terms of institutional design and the evolution of substantive laws. However, there have also been some arguments made against the free exchange of ideas and practices between legal systems of different countries.
In this note I would like to briefly comment on the linkages between increasing globalisation and the law. One approach for examining these linkages is to survey the legal challenges thrown up by the changing socio-economic conditions. With increasing trade and investment across borders, it is important for all nations to be sufficiently invested in the multilateral processes of rule-making and dispute-resolution while at the same time offering a balanced response to the resulting complexities through our domestic legal systems.
The reverse linkage is of course the impact of globalisation on our respective legal systems. In the age of the internet and frequent international travel – judges, lawyers, academics and even law students from different countries have a lot of opportunities to interact, collaborate and learn from each other’s experiences. In particular, I would like to comment on the growing importance of fields such as comparative constitutional law.
I found this portion really increasing. Just as UN Charter was being written many countries were decolonised. They also adopted the UN charter in writing their constitutions:
All of us will readily agree that constitutional systems in several countries, especially those belonging to the common-law tradition have been routinely relying on doctrines and judicial precedents from each other. The early years of the United Nations system coincided with a period that saw decolonisation in most parts of Asia and Africa. During this period, many new Constitutions incorporated mutually similar provisions by drawing from ideas embedded in international instruments such as the United Nations Charter and the Universal Declaration of uman Rights (UDHR). The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) which was adopted in 1953 also became a source for doctrinal borrowing by the emerging constitutional systems. In later years the provisions of the International Covenant on Civil Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) have also emerged as reference-points for such constitutional borrowing.
Much of this constitutional transplantation that has taken place through the means of international instruments has also exported certain distinct features of the United States Constitution – such as a bill of rights, ‘judicial review’ over legislation and limits placed on governmental power through ideas such as ‘equal protection before the law’ and the guarantee of substantive due process’. It is only natural that the newly created constitutional systems have sought to learn from long-established ones.
He then goes on to explain how globalisation has led to what is called as “transjudicial communication”..