Tuesday, January 2, 2007
Posted by Mary L. Dudziak
Daniel Farber, U.C. Berkeley, has an interesting new paper likely to spark attention: The Supreme Court, the Law of Nations, and Citations of Foreign Law: The Lessons of History. Here's the abstract: The Supreme Court's citation of foreign tribunals has been highly controversial. My purpose in this essay is to examine this controversy in light of historic American attitudes toward the “law of nations” and other forms of foreign authority. My thesis is that foreign law has deeply permeated our legal system from the very beginning. Citation of foreign law did not merely reflect the paucity of relevant domestic precedent. Rather, it reflected a deeply held understanding of law, in which background legal principles were not tied to any particular jurisdiction. Such background principles permeated specific legal systems, filling gaps and providing context for positive enactments such as statutes and written constitutions. Given this understanding of law, implementation of transnational legal principles was bound to be reflected in frequent citation of foreign legal authority. The fact that a practice is deeply embedded historically does not prove its validity. It does, however, make it difficult to attack the practice as a suspect modern innovation or to make a plausible claim that disastrous results will surely follow. It is also difficult to argue that references to foreign sources violates the mandate of the framing generation, when members of that generation assumed that such reference would be made and indeed referred to transnational legal principles in the Constitution itself.