Covering the Front and Back Pages of the Newspaper
August 7, 2003
LAW: Foreign Law
Eugene Volokh had some useful thoughts on the issue noted by The Mad Hibernian below: the use of foreign precedents in American courts. I agree with Volokh that there's nothing wrong in theory with using foreign precedents from similar cases as persuasive authority regarding genuinely unsettled questions, the way the courts of one state will do with decisions from another state. The key issues, though, are whether the cases are similar and whether the issues are truly unique:
1. European opinions (let's not pretend that "international" law means anything but Europe) may be persuasive in construing similar constitutional or statutory provisions, moreso if they are rendered by courts with a similar common law tradition such as Britain. They are not, however, persuasive merely because they reach a particular result. Thus, for example, decisions about the death penalty would not be persuasive if rendered by a jurisdiction whose governing rule is something distinct from "cruel and unusual punishment," and decisions about homosexuality (the latest hot button discussed in many of these debates) would not be persuasive if rendered by a jurisdiction whose governing rule is something distinct from "equal protection of the law."
2. Likewise, European decisions should have no weight in cases, such as Lawrence v. Texas or Atkins v. Virginia, where there is already binding precedent from our own Supreme Court. This is the real objection of conservatives: not to considering European cases as persuasive of the meaning of unsettled interpretive questions, but to the use of European opinion to declare our own precedents to be "out of step with world opinion" or some such nonsense.
Democracy, civil liberties, the rule of law and separation of powers have been out of step with European opinion for most of our history. The Justices would do well to remember that.