Ginsburg's Speech and the Non-Issue of Citing Foreign Law

While we're on the subject of Scalia, one of his favorite gripes has to do with U.S. Courts citing foreign laws and legal decisions.  This is an issue that has been popular with the far-right in this country for a while, and has bubbled up again recently following a speech Justice Ginsburg gave in South Africa in February.  

Far-right conspiracy theorists see the citing of foreign law as the U.S. "outsourcing American law".  The fact of the matter, though, is that this is really a non-issue.

From Ginsburg's speech:

While the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution reversed the Dred Scott judgment, U.S. jurists and political actors today divide sharply on the propriety of looking beyond our nation's borders, particularly on matters touching fundamental human rights. Some have expressed spirited opposition. Justice Scalia counsels: The Court "should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."

Another trenchant critic, Seventh Circuit U.S. Court of Appeals Judge Richard Posner, commented not long ago: "To cite foreign law as authority is to flirt with the discredited . . . idea of a universal natural law; or to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience." Judge Posner's view rests, in part, on the concern that U.S. judges do not comprehend the social, historical, political, and institutional background from which foreign opinions emerge. Nor do we even understand the language in which laws and judgments, outside the common law realm, are written.

Judge Posner is right, of course, to this extent: Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions. Yes, we should approach foreign legal materials with sensitivity to our differences, deficiencies, and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey.

Representative of the perspective I share with four of my current colleagues, Patricia M. Wald, once Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and former Judge on the International Criminal Tribunal for the former Yugoslavia, last year said with characteristic wisdom: "It's hard for me to see that the use of foreign decisional law is an up-or-down proposition. I see it rather as a pool of potential and useful information and thought that must be mined with caution and restraint."


To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of "common denominators of basic fairness governing relationships between the governors and the governed."


The U.S. Constitution, Justice Scalia has remarked, contains no instruction resembling South Africa's Section 39 prescription. So U.S. courts, he thinks, have no warrant from our fundamental instrument of government to consider foreign law. I would demur to that observation. Judges in the United States are free to consult all manner of commentary - Restatements, Treatises, what law professors or even law students write copiously in law reviews, for example. If we can consult those writings, why not the analysis of a question similar to the one we confront contained in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?

This hardly seems like a controversial position.  Looking to all relevant sources when trying to analyze difficult cases strikes me as being wise.  Why should U.S. courts limit the experience to which they can refer?  Judges are not applying foreign law to American citizens, they're looking at how other people approached similar issues.  Justice Ginsburg is, essentially, arguing that if we can see someone else touch a hot stove, we need not touch it ourselves to learn that it burns.

So, what is all the fuss about?  Really, it has little to do with objections to citing foreign law per se, and more to do with a legal view that freezes Constitutional interpretation in the 18th century.  Said Justice Ginsburg:

The notion that it is improper to look beyond the borders of the United States in grappling with hard questions, as my quotation from Chief Justice Taney suggested, is in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification. I am not a partisan of that view. U.S. jurists honor the Framers' intent "to create a more perfect Union," I believe, if they read the Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.

What seems to be most at issue here are standards of civilized conduct.  The far-right looks positively, almost gleefully, on acts such as the execution of minors and the mentally retarded, torture, and secret prisons; they relish in restrictions on the private conduct of citizens - from laws dictating with whom one can have sex, to laws specifying what books one can read; they delight in unchecked executive power and arbitrary detention.

More and more the "freedom" espoused by members of the far-right is more closely aligned with radical Islamism, not the positive liberty enshrined in the writings of the Founding Fathers and other enlightenment figures.  American judges are not "outsourcing American law" - this sort of rhetoric is simply meant to hoodwink and manipulate, they are following in the tradition of the Founding Fathers by looking to the greatest breadth of knowledge in trying to form a more perfect union.

The United States boasts the preeminent legal system in the world.  Though imperfect, as are all legal systems, the American courts are a constant beam of light, assuring people in darker corners of the world that liberty is possible.  Those that slander Justice Ginsburg and others who honestly and tirelessly work to ensure a place for justice serve only to dampen that light.  And that is truly an injustice.

Tags: Ginsburg, law, reason, scalia, SCOTUS (all tags)



Re: Ginsburg's Speech and the Non-Issue

Listened to Scalia talk about this on the radio at the American Enterprise Institute (home turf for him). Scalia's theme was that America is more influenced by Natural Law (our instinctive resistance to homosexuality, incest, bestiality, abortion etc), while the rest of the world varies from nation to nation. His premise is that the founding Fathers used Natural Law as their starting point, using these assumptions about Right and Wrong rather than any moral relativism. But then it struck me, the Founding fathers were not turning to Natural Law to create a strong legal system to protect them from wishy-washy liberal Europeans, the Founding fathers used Natural Law to define their individual "inaliable rights" and personal freedom to protect US citizens from kings and monarchies. The Natural Law he is so fond of was a direct challenge to the centralized authority of the King (or President), but Scalia managed to totally reverse this reasoning to make the point that what the founding fathers really wanted was an extremely powerful federal government and limited personal freedom.

Clearly these guys are "on message" and they are too academic to not have some formal philosophical system behind them, some semi-secret code that they are indoctorinated with.

I have only recently become aware that the Neocon method of attacking the constitution is a well established strategy of using philosophical (Hegelian) dialectics to completely REVERSE the meaning of Constitution and to put power in the hand of the "Great Leader." This is explained at great length in "The Open Society and Its Enemies," which was written in 1962 and lays out the philosophical basis of the rise of totalitarian states. This lays out the Neocon strategy out A through Z.

by bernardpliers 2006-03-16 03:52PM | 0 recs
Yeah, that foreign stuff...

Uh, Antonin, it's called "civilization".

Marbury v. Madison, 5 U.S. 137 (1803)

...Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al. states with much precision and explicitness the cases in which this writ may be used.

'Whenever,' says that very able judge, 'there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit), and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government.' In the same case he says, 'this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.'

In addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the practice has conformed to the general doctrines that have been just quoted...

Ex parte Milligan, 71 U.S. 2 (1866)

...What is ordinarily called martial law is no law at all. Wellington, in one of his despatches from Portugal, in 1810, in his speech on the Ceylon affair, so describes it.

Let us call the thing by its right name; it is not martial law, but martial rule. And when we speak of it, let us speak of it as abolishing all law, and substituting the will of the military commander, and we shall give a true idea of the thing, and be able to reason about it with a clear sense of what we are doing...

by Michael Bersin 2006-03-17 03:36AM | 0 recs


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