The Court and the World

[Agent327]

Food for thought:

In all the fanfare surrounding the Supreme Courts's end-of-term rulings this past June, a little-noticed passage in an opinion by Justice Stepehn Breyer quietly revised a debate that has roiled american law for nearly two decades. Dissenting on the final day of the term from a decision to uphold Oklahoma's new lethal injection protocol, Breyer (joined by Justice Ruth Bader Ginsburg) observed that 137 countries - a full 70 percent of member states in the United Nations - have abolished the death penalty either formally or in practice. Breyer noted further that in 2014 the United States was one of only 22 countries in the world to carry out any executions at all.

To the untutored eye, such observations may seem inoffensive enough, albeit on a grave subject. But by citing the experience of the rest of the world, Breyer raised a question that is not about the death penalty at all but is at the heart of a fierce controversy over the future of American democracy. Does foreign law have a place in interpreting the American Constitution?

Continued here: http://www.nytimes.com/2015/09/20/b...0918&nl=books&nlid=61820453&ref=headline&_r=0

The Court and the World American Law and the New Global Realities, by Stephen Breyer, reviewed by professor of law and history John Fabian Witt.

Breyer reports that in his nearly 20 years on the court, he has seen a greater and greater number of cases involving foreign questions. (...)

A longer view would reveal that engagement with the world has been an institutional reality at the court for nearly all of its existence. (...)

Breyer is right, however, that 21st-century global engagements pose important new challenges.

That would seem obvious - as well as being cause for controversy.

 

[Zkribbler]

Does foreign law have a place in interpreting the American Constitution?

Absolutely. For example, in determining whether the death penalty is "cruel and unusual," the Court should examine how usual or unusual it is.

 

[Flying Pig]

That's a dangerous line of reasoning - if, for example, a sudden wave of fascist sympathy swept a large number of murderous dictators to power in foreign countries, by that logic it would become more justifiable for the US government to act murderously. Morality, as every schoolchild is taught, is not democratic - to do wrong because it is popular to do so is still wrong, and to do right when it is unpopular to do so is still right.

I'm not entirely comfortable with the above, because I acknowledge that (here) appealing to other countries would bring the US onto what I think is a 'better' path. However, I don't think you can fairly use a bad argument, even if you're trying to argue for good things.

 

[Borachio]

Maybe.

On the other hand, not to take into account what other people think about an issue is a dangerous thing for an individual (who would otherwise be living in an isolated world entirely of their own making).

It's perhaps similar for a country.

We use other people, and countries, as sounding boards for what's right. If we propose something publicly and get met with a torrent of abuse, there's a very good chance that we're wrong. It's not an infallible strategy, of course. But more reliable than relying on one's own judgement entirely.

 

[Flying Pig]

Perhaps, but I'd be more comfortable doing that with questions of fact than questions of morals - though the latter, I suppose, have to be built on the former.

 

[cybrxkhan]

Historically some Supreme Court decisions have relied on interpretations based on foreign and historical law (mainly English/British law so far as I vaguely remember) so I don't feel like it's as surprising as it seems.

 

[JollyRoger]

Ancient Jewish law has also played a part.

 

[gay_Aleks]

Which is really Jewish iguana laws, when you think about it.

 

[Camikaze]

It's strange seeing a common law country being so insular. It would be a rare High Court case in Australia which doesn't cite some foreign case, usually from the UK, but often from Canada or NZ, and sometimes from the US - until about the 1970s it wasn't even recognised that Australia even had its own distinct common law. Probably helps that until the 70s there were still appeals to the Privy Council (and still there could be, in the most technical sense). More recently, there's even been continental European influences becoming more prominent.

Now that there has been a recognition that Australia has its own common law, foreign cases are used as part of the direct line of precedent, but also to reflect on whether Australian law can be improved. Other common law systems base their decisions on similar or identical principles, so their decisions are relevant to look at in determining that question. You could apply this more broadly - if parts of the US Constitution are based on the same principles as various human rights regimes around the world, why wouldn't decisions within those regimes be relevant?

 

[Agent327]

Ancient Jewish law has also played a part.

No such thing exists. If you are referring to the Law, that is a religious concept, not a legal one.