A growing body of scholarship suggests that judges all over the world – from Canada to South Africa, from India to Israel, from Western Europe to Australia – increasingly consult, and borrow from, the decisions of other courts as persuasive authority. The scholarship on 'judicial dialogues' and its cognates (ie. transjudicial communications, cross-fertilisations, uses of foreign and comparative law, etc) tells us who engages with whom and how often, suggesting underlying reasons and patterns for this relatively new phenomenon. Whether or not such dialogue of judges amounts to a new 'global community of courts' (Slaughter) that underscores the cosmopolitan and universalist ambitions of human rights discourse, the fact is that the traditional hierarchy of sources, as well as conventional forms of legal reasoning and legal authority, are being profoundly challenged.
While some welcome these developments as part of the new global order, others see them as endangering the autonomy and certainty of law. However, neither side of the debate tends to consider that the very act of 'travelling' has an effect on the language of human rights, and 'troubles' its universalist aspirations. This is because, as literary scholar and philosopher of language Mikhail Bakhtin suggested, 'the speech of another, once enclosed in a context, is—no matter how accurately transmitted—always subject to certain semantic changes' ('Discourse in the Novel,' 340).
In order to lay out the implications of his argument, Julen will pursue one fertile example of borrowing, which will serve further to connect the jurisprudence of the European Court of Human Rights, the Supreme Court of Canada, the South African Constitutional Court, and the High Court of Australia.