International Law, Comparative Law, and the U.S. Courts

The distinction between international law and comparative law is not just conceptual, but is also of practical importance. Thus, the Constitution determines the “law of nations” which – as Justice Ginsburg puts it – “is the core of what we today call international law” to be binding for U.S. courts while foreign law is not. [1]

This does, however, not necessarily mean that U.S. judges should be blind or ignorant to foreign laws and court decisions. In fact, there are many examples where U.S. Courts have drawn inspiration from a comparative perspective on an issue they had to decide. [2]

Yet, the question of whether a U.S. Court should look at foreign legal sources or should not has always been (and still is) highly controversial. Opponents basically are concerned (1) that consideration of foreign law might be arbitrary (i.e. only decisions/laws that are in accordance with the own mind set are cited) [3] and (2) that U.S. judges may not fully get the full picture behind a foreign decision or law due to a lack of (social, historical etc.) background knowledge. [4]

While the above concerns are definitely valid and should prevent judges from just blindly treating foreign law as binding, I do not see why – especially in today’s interconnected world – foreign legal sources should not get the same level of consideration as other secondary legal sources like law review articles or even legal blogs. [5] After all, other judges (or legislators) may have already found a good solution, so we do not always have to re-invent the wheel!


Sources

[1] Ruth Bader Ginsburg, My Own Words, 2016.

[2] Calabresi&Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 Wm. & Mary L. Rev. 743 (2005).

[3] see [1] on page 254 referring to Justice Scalia.

[4] see [1] on page 254 referring to Judge Richard Posner.

[5] see [1] on page 255.

[6] for an older post on the Supreme Court and Foreign Law, see here.

Comparative Law in Late 19th Century German Jurisprudence

Towards the end of the 19th century, the comparative method found its way into German jurisprudence through the work of Joseph Kohler. Legal anthropologist,ethnologist and historian, Kohler was one of the most prominent representatives of neo-hegelianism viewing law as the expression of social culture. In particular, Kohler suggested that law was based on past culture that was consciously adapted to the present. Law (though inherently stable) became thus still susceptible to continuous improvement.

Kohler was especially intrigued by other cultures. Based on his mindset as neo-hegelianist, he thought that all ethnic groups have norms that can be seen as laws. He was particularly interested in the legal customs among the tribes of the German colonies. In order to shed a light on these customs, Kohler developed Fragebogen (questionnaires) that were distributed to administrators and missionaries in the German colonies. Unfortunately, although the questionnaires were dutifully answered and collected, the answers merely shed partial light on the legal customs of the indigenous tribes. The underlying reason was that the questions were drafted by German jurists that were unable to strip themselves of their own dogmatic. As a result, individual cases and real life situations were neglected in this search for general rules that did not exist.

Regardless of the eventual failure of the project, Kohler’s work can be seen as the beginning of the new era of comparative law in Germany. His activity overlapped with that of Ernst Rabel who lastingly shaped modern comparative law research. In addition, Kohler’s research focus as well as his methodology have recently experienced a renaissance. Thus, a modified and improved questionnaire method is used in the Common Core project. At the same time, legal ethnology and the interest in legal culture are very popular and relevant in current comparative law research.

Bibliography

  • Edwin Borchart, Jurisprudence in Germany, 12 Columbia L Rev. 301-320 (1912).
  • Grossfeld et al., Rechtsvergleicher – verkannt, vergessen, verdraengt (2000).
  • E. Adamson Hoebel, The Law of Primitive Man (2006).
  • Roscoe Pound, The Ideal Element in Law (1958).

The Common Core of the Holiday Spirit

Before spending some time with my family, I would like to reflect on the holiday season and look at what people around the world are celebrating.

In India, Diwali is the biggest holiday of the year. It is marked by family gatherings and lights (notably clay lamps from which the holiday gets its name). The idea is to be thankful and to get the blessing of Lakshmi, the goddess of wealth.

The African community in the United States and beyond celebrates Kwanzaa, a week-long holiday to honor African heritage, unity, and culture. Families gather and decorate their households with the symbols of Kwanzaa, one of them being a candle holder (kinara) with seven candles.

Hanukkah is the Jewish Festival of Lights. It is observed for eight nights with the kindling of one additional light on each night of the holiday. Families gather on these nights to play dreidel and eat oil-based foods.

Christmas is central to the Christian liturgical year and marks the celebration the birth of Jesus Christ. Families usually gather on Christmas Eve or Christmas day to give presents. Households are decorated with lights and Christmas trees (and much more).

This brief synopsis illustrates that the major holidays of various traditions share a common core: the celebration of lights, family and giving.

Seasons greetings from CompareLex!