united states

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)

In the first half of the 19th century, comparative law was very much en vogue in the United States. Two names are worth mentioning here: First (and foremost), Joseph Story, a Supreme Court judge and author of the Commentaries on the Constitution of the United States. Second, James Kent, Chancellor of New York and author of the Commentaries on American Law. Both gentlemen are known for their interest in continental European Law, French law in particular, which shaped their reasoning as well as their decisions and made them strong partisans in the American post bellum codification movement – the quest for an American code!

Other than in England, the consideration of comparative law in the United States was more comprehensive. The recourse to foreign laws was not just for practical (i.e. political) purposes, but represented the ideology of an illustrious group of lawyers with ties to the judiciary as well as legal academia. In fact, at that time, the curriculum of Harvard law school (where Joseph Story was faculty) included references to Roman and French law.

Such fascination for civil law by common law jurists is remarkable. It has to be seen in the context of the recent independence from England and the resulting urge to distinguish American law from British common law. Over time, however, these emancipation efforts ebbed away and the interest in comparative law ran dry.

Bibliography

G Blaine Baker, Story’d Paradims for the Nineteenth-Century Display of Anglo-American Legal Doctrine (Angela Fernandez and Markus D. Dubber, eds. 2012) 82, 106.
Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985).
Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (1998), p. 57.

The United States Supreme Court and Foreign Law

Early Comparative Law in the United States – Emancipation through Comparative Law