Contemplating a New Judgment Model in International Human Rights
Judges all over the world are engaged in a globalized discussion of human rights where they increasingly borrow from multiple sources outside their jurisdictions. But how does this exchange affect the character and practice of legal judgment? Dr. Julen Etxabe, Canadian Research Chair in Jurisprudence and Human Rights, is identifying a new dialogical (discussion-based) model of judgment that could profoundly transform our inherited notions of law, authority and rights.
Rather than being subject to the control of a single author, dialogical judgments arise out of the interaction of multiple voices, each expressing its own perspective and worldview. Rather than asking, “Is this judgment consistent with itself?,” the question becomes, “How do the different voices interact with each other?” Shifting the normative expectations in this way offers a completely new idea of what it means to judge well in the contemporary age.
Etxabe and his research team are analyzing this transformation as a response to the contemporary condition of pluralism, where no single unifying system of norms can claim uncontested authority. In a plural society, there is a greater need for forms of justification that can draw on and respond to diverse legal communities—including minorities, marginal or excluded groups, non-state actors, and Indigenous communities.
By comparing court practices in Canada, Europe, South Africa, the United States and Latin America, this research will determine the extent to which the dialogical model is at work in different jurisdictional contexts. Ultimately, it will examine whether the dialogical approach leads to a more “democratic” protection of human rights.