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)

Interdisciplinarity – Lessons from Applied Comparative Law

In my previous post, I pointed out that comparative law could benefit from other disciplines. Such incorporation of external research needs to be done in a way that makes it acceptable from a legal standpoint. And principles of (applied) comparative law may just be the key – admittedly a somewhat circular reasoning, but nevertheless something worth looking into.

Applied comparative law considers the question of legal transplants, i.e. which legal provisions could be transferred from country A to country B. In order to determine which law should be transferred, lawyers have to figure out the overall best solution by taking into account what is reasonable and just. Here, the issue of cultural and ideological discrepancies arises: because what works well in country A does not necessarily be acceptable in country B. So in the end, lawyers have to decide on a case-by-case basis whether the prima facie better law is in fact ideal in the country it should be adopted.

So what does this previous paragraph tell us about interdisciplinary comparative law? Adopting an idea or reasoning from another discipline might just be similar to transferring legal provisions from country A to country B. Thus, any effort in incorporating interdisciplinary research has to determine on a case-by-case basis whether a particular idea from another discipline is reasonable and just in the particular comparative law research at hand. In this regard, Giesen proposes a (non-exhaustive) set of questions that any lawyer who considers empirical research should ask himself before incorporating this research into his work: 

– whether the empirical work is in fact relevant for the question of law that arises,
– whether the work is up to the current state of the art in the field methodologically, as well as regards its research design, etc., and its implications,
– whether (more generally) the research is valid and reliable,
– whether there is conflicting empirical work on the same issue,
– whether the study has been replicated and confirmed or not,
– whether the study is but one building block of a larger set of studies needed for policy implications,
– whether the researcher is both an expert and objective and independent, and so on.

The advantage of this approach is that it may help prevent premature adoption of empirical ideas into comparative law research. 

Bibliography

  • Ivo Giesen, The Use and Incorporation of Extralegal Insights in Legal Reasoning, 11 Utrecht L R 1-18 (2015).
  • Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law 33-47 (1998).

Harmonization through Principles

When I wrote about the Common Core project, I mentioned that it was strictly descriptive without any intention to aid harmonizing the laws of Europe. There are, however, also some comparative legal efforts that strive to foster cross-border uniformity of laws in order to aid transnational commerce. These efforts, again, are of an academical nature, i.e. detached from any political body or parties. Their goal, however, is to provide such political bodies with a working basis that will eventually lead to harmonization of laws. On the European level, two recent (and subsequent) groups are worth to be mentioned: the Commission on European Contract Law (Lando Commission) and the Study Group on a European Civil Code (SGEC).

The Lando Commission set out to draft uniform principles of contract law. The first commission under the chairmanship of Ole Lando started its work in 1982 and published the first set of principles on performance, non-performance and remedies for non-performance in 1995. A second commission (established in 1992) focused on contract formation, interpretation and validity as well as on agency. It published its conclusions in 1999.

The Study Group on a European Civil Code, established in 1997, emanated from the Lando Commission. It had a broader scope than the Lando Commission focusing on patrimonial law which includes contracts, non-contractual obligations and movable property. Contentious areas such as family law have been left untouched. The SEGC published its Draft Common Frame of Reference (DCFR) in 2009.

Both the Lando Commission and the SEGC were comparative legal research efforts striving to create a body of principles of private (contract) law that is most suitable for Europe-wide application. While the SEGC does not have any legislative intent and only sees its work as a starting point for possible future EU law-making, the Lando Commission, at least initially, had intended a more direct political impact of its work.

A part from this more political focus, the main difference between the Lando Comission/SEGC and the Common Core Project are that the latter solely strives to carve out the common core of the existing European private laws, i.e. it constitutes a description of the status quo. The Lando Commission/SECG, in turn, do not stop there but aim to formulate the ideal provisions that a European private law regulation would contain (which does not necessarily have to be the most common type of provision within European national laws).

From a more philosophical perspective, the Lando Commission/SECG are the brain child of a comparative law analysis on how unification can work in a complex network of different legal entities. In particular, the European efforts have been inspired and aim to imitate the work of the American Law Institute (ALI). The ALI is an independent body of legal scholars in the United States that, by publishing Restatements, purports to facilitate a unification of the laws of the U.S. states. While these Restatements are by no means binding on any state, legislators and courts have often drawn inspiration from them resulting in a less diverse legal landscape within the United States. It remains to be seen whether a harmonization through principles also works on the long run in the European context.

Bibliography

  • Ole Lando, Salient Features of the Principles of Contract Law: A Comparison with the UCC, 13 Pace Int’l L.R. 339-369 (2001).
  • Von Bar et al., Principles, Definitions, And Model Rules of Private Law, Draft Common Frame of Reference (2009), available here.