DONAHUE LECTURE AND PANEL DISCUSSION
A particular feature of the past fifty years has been the introduction of the post-war independence constitutions of many nations. The introduction of such constitutions in India, Pakistan, Ireland, Ceylon, and then many parts of Africa, Asia and the Caribbean, has resulted in the adoption of human rights provisions that sometimes reflect an international template. Quite often, such provisions, in repeated language, can be traced to earlier progenitors, including the English Bill of Rights of 1688, the Bill of Rights of the American Constitution after 1791, and the Universal Declaration of Human Rights of 1948.
To many judges in national courts, faced with cases for decision involving the meaning of their own constitutional charters of rights, it has often seemed appropriate and useful, over recent years, to reach for the exposition of analogous problems written by judges and decision-makers in the courts of other countries, in international or regional courts and other bodies, grappling with similar problems. Doing so has not generally been viewed as evidencing any illegitimate loyalty, or deference, to nonbinding texts. Still less has it been seen as exhibiting obedience to the legal norms of other countries or the international community, or to the opinions of judges and others outside the legitimacy of the municipal court hierarchy. Instead, reference to such elaborations has occurred because such expositions have been found helpful and informative and therefore useful in the development of the municipal decision-maker’s own opinions concerning apparently similar problems presented by the municipal constitution or other laws.
For more information about Justice Kirby’s Donahue Lecture (which served as the basis for this article) please click here.