ABSTRACT
The judicialization of the global polity has attracted much criticism. But global courts and quasi-judicial bodies are pale imitations of national courts: therefore, one cannot simply transplant national paradigms into the global space. Global courts exercise public authority through judicial law-making, but their power can be justified neither by the traditional basis of State consent, nor by functionalist narrative. In democratic contexts, judicial lawmaking is embedded in a political system in which a democratic legislature holds the central role in creating norms: there is no such equivalent in the global space. Proportionality requires comparison between two distinct legal orders and public interests. Comparison is an essential aspect of this use of proportionality. Proportionality is an important instrument for globalization, as it allows global regulators to find their way in the global space, and to establish their primacy, while at the same time respecting pre-existing national legal orders.
