Empowering or Disempowering? A Comparative Study on Judicial Use of Transnational Norm.

Global legal community has been increasingly concerned with whether globalization has altered the ways that national courts interpret local norms. What is more important is perhaps its consequence. Has the local use of transnational norms served the interests of local citizens? Would a growing use of transnational norms broaden our concept of citizenship? If transnational norms are rejected, would it entail "less" citizenship or would it in effect construct a stronger "national" citizenship? And there exists a question of legitimacy. The debates between Justices of the U.S. Supreme Court become all too familiar. Similarly, when the Taiwanese Constitutional Court first cited foreign decisions, a dissenting opinion issued strong warnings of the danger in judicial borrowing that might hinder local progress of rule of law and undermine national sovereignty. This paper seeks to analyze local use of transnational norms by a comparative study on three courts: U.S. Supreme Court, Supreme Court of Canada, and the Taiwanese Constitutional Court. They are chosen to represent various attitudes: conservative (U.S.), progressive (Canada), post-democratic progressive (Taiwan). It compares the ways three courts articulate and adopt transnational norms and inquire whether their differences in legal system, constitutional progress, concept of citizenship and national community, or even global political economic position have relationships with their difference in embracing transnational norms. A particular focus would be placed upon a question of whether and to what extent the recent local use of transnational norms departs from an earlier colonial image of legal transplantation. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]