Law - Leadership in a Globalizaing World, Baxi.docx

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Western University
Political Science
Political Science 3201F/G
Dan Bousfield

PUBLIC AND INSURGENT REASON: ADJUDICATORY LEADERSHIP IN A HYER-GLOBALIZING WORLD  Adjudicatory leadership consists in the management and organization of the usual hierarchy of jurisdictions and court systems, and it also entails interpretive/hermeneutic leadership  They are integral to the general activity of the law, which is wider than purely the State and governmental activity  The proliferation of international courts, tribunals and related forums remains truly unprecedented  The ICC may finally now, besides having the jurisdiction to try war crimes and crimes against humanity also tackle crimes of aggression, and may even address in the remote future the conduct of non-state actors, especially multinational corporations and allied entities for flagrant violations of human rights, human abuse, environmental degradation and ecological destruction  In sum, the rights revolution provides almost everywhere a remarkable potential for adjudicatory leadership to operate  Questions concerning the legitimacy of adjudicatory leadership may not gainsay its existence nor may we reiterate old wisdoms distinguishing the tasks of the appellate/apex courts from those designated as trial or district courts  Increasingly, trial courts, otherwise tasked to find the facts and apply the law as it stands have gun to assume the custodianship of the rule of law and human rights values, norms and standards  Apex or supreme court justices remain divided concerning the best possible points of arrival and departure for deliberative and reflexive judicial action and intervention in matters in which agencies of state and of public opinion remain sharply divided  Moreover, many apex justices actually believe in and practice the virtue of judicial self-restraint, on the basis of notion of respect for other coordinate branches of governance  Restraintivism everywhere is associated with hands-off stances concerning excesses of domination – excesses co-produced by state and civil society, which then justify forms of human and social suffering and rightlessness  Activist justices everywhere do not merely elaborate political power as a form of social trust but also present high judicial power in fiduciary terms  In India, apex justices have explicitly subjected the power to amend the constitution to imply limitations based on the grounds of infringement of the basic structure and essential features of the constitution  This invention means that constitutional amendments duly passed by parliament may be held to be invalid  The globalization of fatwa cultures fostered by ongoing wars of and on terror encourages the view that the fatwa cultures valorize non-public (secret) decision making by decree which is inherently non-participative, unaccountable and ethically irresponsible  The principal theoretical contestation concerns contrasts between a historical materialist understanding of late capitalism and a cultural pluralist understanding of inter-state relations or global politics  The neoliberal penchant for the privatization of dispute settlement transfers the potential for adjudicatory leadership as a public good to the maximization of the welfare of cross-border trade and investment communities  Millions remain affected by the privatization of the form of modern law  In what follows i further outline aspects of the adjudicatory leadership concept as designating at least three sites of action or agency  1. In repairing and innovating systems of administration of justice  2. As administrative or managerial leadership  3. As hermeneutic leadership  Law reform also raises issues regarding the organization and management of the legal system  Presented as major breakthroughs in doing and achieving justice such measures deepen the divide between the constitutional haves and have-nots  Judicial globalization means many things to d
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