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VOL. 119 · November 2005 · NO. 1
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FOREIGN LAW AND THE MODERN IUS GENTIUM
by Jeremy Waldron [ Full Text ] |
119 Harv. L. Rev. 129 (2005) |
| Is it ever appropriate for American courts to cite or defer to foreign law? The question arose last Term in a bitter dispute among the Justices of the U.S. Supreme Court in Roper v. Simmons, the juvenile death penalty case. One of the frustrating things about Roper, however, is that no one on the Court bothered to articulate a general theory of the citation and authority of foreign law. Writing for the Court, Justice Kennedy said that it was “proper” to take foreign law into account and that referring to the laws of other countries could be “instructive” for the Court’s interpretation of the Eighth Amendment. But he did not explain the jurisprudence behind this view. Nor did the Roper dissenters articulate a theory of citation to foreign law that they could squarely refute; they simply denounced the practice.
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| The theory that is called for is not necessarily a complete jurisprudence. But it has to be complicated enough to answer a host of questions raised by the practice: about the authority accorded foreign law (persuasive versus conclusive), about the areas in which foreign law should and should not be cited (private law, for example, compared to constitutional law), and about which foreign legal systems should be cited (only democracies, for example, or tyrannies as well). The theory has to be broad enough to explain the use of foreign law in all appropriate cases: too many scholars call for a theory that will explain the citation of foreign law only in constitutional cases. The theory has to be persuasive enough to dispel the serious misgivings that many Americans have about this practice: why should American courts cite anything other than American law? Above all, it has to be a theory of law. The argument cannot just be that good diplomacy requires us to ingratiate ourselves with the Europeans. It must explain why American courts are legally permitted (or obliged) to cite to non-American sources and how that practice connects with the status of courts as legal institutions.
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| An example may help get at the sort of theory I have in mind. When courts cite their own precedents, they do so on the basis of the theory of stare decisis, which provides a platform on which judges can articulate and defend their deference to precedent. It explains why deference is appropriate even for cases in which justice or policy seems to require a different result. It explains why precedent is more important in some cases than in others. And it explains its relation to various sources of law (the difference between stare decisis in common law and in constitutional interpretation, for instance). No doubt the details of stare decisis are controversial. But even if one disagrees with a judge’s conception, it is surely better that he should articulate such a theory than that he simply give the impression that he thinks deferring to precedent is a good idea. We should require nothing less for the citation of foreign law.
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| In his dissent in Roper, Justice Scalia said that the Court’s citation of foreign law was unprincipled and opportunistic. Even this observation, however, does not mean that there cannot be a good theory to support the practice. Using my analogy again, Justice Scalia has sometimes argued that the Court’s following and departing from precedent in cases involving individual rights is unprincipled and
opportunistic. But it does not follow that he rejects stare decisis or that he thinks it is not worth developing a theory of precedent. Similarly, we should not reject the idea of a theory of the citation of foreign law simply because we see foreign law being cited opportunistically; we should reject it only if we think inconsistent and unprincipled citation is inevitable under the auspices of such a theory.
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| Though it appears from his dissent in Roper that Justice Scalia’s denunciation of the citation of foreign law proceeds without any appreciation that such citation should be based on a theory, dicta from his recent concurrence in Sosa v. Alvarez-Machain indicate that he does have in mind a theory of the authority of foreign law (albeit one he wishes to refute). Though the Roper Court did not engage with this theory, it merits closer consideration. |
| Sosa concerned a claim under the Alien Tort Statute (ATS). A physician, kidnapped from Mexico by persons working for the U.S. Drug Enforcement Agency, sued under the ATS for damages arising from his unlawful arrest. The ATS, first enacted as part of the Judiciary Act of 1789, provides that federal district courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations”; Alvarez-Machain argued that his kidnapping was just such a violation. The Supreme Court rejected his claim for damages, holding that the Court’s 1938 decision in Erie Railroad Co. v. Tompkins seriously curtailed the ability of litigants in American courts to generate new causes of action under “the law of nations.” The Court in Sosa said that the federal courts now have only very limited discretion to recognize new causes of action in this regard, discretion that the Court declined to exercise in the plaintiff’s favor. |
Justice Scalia, concurring, took a somewhat different approach. He argued that the ATS must be read in the narrow sense that its framers understood it — to refer exclusively to “the accepted practices of nations in their dealings with one another (treatment of ambassadors, immunity of foreign sovereigns from suit, etc.) and with actors on the high seas hostile to all nations and beyond all their territorial jurisdictions (pirates).” Justice Scalia denied that the federal courts had even limited discretion to recognize new grounds of action under the rubric of the law of nations. Then he added this:
The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human rights advocates. The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples’ democratic adoption of the death
penalty could be judicially nullified because of the disapproving views of
foreigners. That last comment looks forward to cases, like Roper, that do not involve the ATS, but do involve reference to the sort of global legal consensus underlying the idea of the law of nations. I think Justice Scalia is right in thinking that this is the implicit theory behind the Court’s citation of foreign law in cases like Roper.
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| Developing an argument that the citation of foreign law can rest on the idea of the law of nations requires a number of steps. In Part II, I define the law of nations and distinguish it from natural law. Part III contrasts the approaches these two theories take toward the solution of modern legal problems. Part IV examines how the law of nations approach might bear on the juvenile death penalty. In Part V, I show that American jurisprudence is still capable of recognizing the law of nations for the purposes of a case like Roper, despite the inhibiting positivism of Erie. In this regard, we need to go beyond the stodgy Latin apparatus of ius gentium and start thinking directly about legal problems in a way that makes this account of the citation of foreign law appealing. I set out an account of this kind in Part VI. I end, in Part VII, with some brief comments on the relation between this theory and the rather casual invocation of foreign law in cases like Roper. |
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