The United States Supreme Court and Foreign Law

With this post, we quickly set aside the issue of interdisciplinarity in comparative law and focus on applied comparative law in a broader sense. Specifically, I would like to look at the question whether the United States Supreme Court (and courts in general) should consider foreign law and practices.

In this regard, Justice Breyer of the United States Supreme Court just published his book The Court and the World: American Law and the New Global Realities. The book essentially is a commented synopsis of recent Supreme Court decisions that mention foreign law. Most of these decisions concerned the interpretation of international treaties or statutes where consideration of foreign law is fairly accepted. Sometimes, however, foreign law was consulted on questions relating to the United States constitution and its interpretation. In particular, issues relating to national security and antitrust triggered a look across borders, but also questions about gay rights and the death penalty.

According to Justice Breyer, foreign law – while by no means binding – could be quite “instructive” in cases involving questions of constitutional interpretation in general and more specifically questions relating to the Eighth Amendment and the death penalty.

“It [the Eighth Amendment] uses the word ‘unusual,’ and the founders didn’t say unusual in what context.”

Generally, judges – and lawyers – across borders could learn from each other. Unfortunately, drawing inspiration from abroad is still very limited – not just for ideological reasons, but also because of lack of understanding foreign law and its terminology.

Bibliography

• Adam Liptak, Justice Breyer Sees Value in a Global View of Law, The New York Times, September 12, 2015 (available here)