Journal Article

From judicial comity to legal comity: A judicial solution to global disorder?

Elisa D’Alterio

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 9, issue 2, pages 394-424
Published in print April 2011 | ISSN: 1474-2640
Published online April 2011 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mor036
From judicial comity to legal comity: A judicial solution to global disorder?

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Multifarious definitions and different practices are associated with the notion of “judicial comity.” Nevertheless, this paper seeks to demonstrate the existence of a key feature of the phenomenon. The analysis of cases illustrates that the implementation of certain judicial techniques expresses a court's “regulating function,” which is aimed at governing the relations between different legal systems within the global legal space, specifically when the codified criteria regulating those relations are lacking or insufficient. It is an original approach, which allows us to identify the new boundaries of the phenomenon—distinguishing between the techniques that are effectively an expression of judicial comity and those which are not—and, consequently, to depart from the definitions elaborated by a certain jurisprudence and the pertinent literature. From this standpoint, judicial comity produces the interesting effect of “legal comity,” which can lead to a mitigation of the disorder characterizing the global legal space. At the same time, this perspective gives rise to some questions, for example, related to the real value of the phenomenon and the existence of extrajudicial interests behind the application of the techniques.

Journal Article.  16202 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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