"Partly Laws Common to All Mankind": Foreign Law in American Courts' 9780300148664

Table of contents :
Contents
Acknowledgments
Cases
Abbreviations
1. Simply the Law
2. The Law of Nations, Ius Gentium
3. A Body of Legal Principles
4. Learning from Other Courts
5. Treating Like Cases Alike (in the World)
6. Democratic and Textualist Objections
7. Practical Difficulties
8. Legal Civilizations
Notes
Bibliography
Index

Citation preview

“Partly Laws Common to All Mankind”

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“Partly Laws Common to All Mankind” Foreign Law in American Courts

Jeremy Waldron

New Haven & London

Copyright © 2012 by Yale University. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers.

Yale University Press books may be purchased in quantity for educational, business, or promotional use. For information, please e-mail [email protected] (U.S. office) or [email protected] (U.K. office).

Set in Photina Roman type by IDS Infotech Ltd., Chandigarh, India. Printed in the United States of America.

Library of Congress Cataloging-in-Publication Data Waldron, Jeremy. “Partly laws common to all mankind” : foreign law in American courts / Jeremy Waldron. p. cm. Includes bibliographical references and index. ISBN 978-0-300-14865-7 (cloth : alk. paper) 1. Law–United States–Foreign influences. I. Title. KF358.W35 2012 349.73—dc23 2011037234

A catalogue record for this book is available from the British Library.

This paper meets the requirements of ANSI/NISO Z39.48–1992 (Permanence of Paper).

10 9 8 7 6 5 4 3 2 1

For Ronald Dworkin

Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum jure utuntur [All peoples who are ruled by laws and customs use partly their own laws and partly laws common to all mankind to govern themselves]. — J U S T I N I A N , Institutes, bk. 1, chap. 2.

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Contents

Acknowledgments ix List of Cases xii List of Abbreviations xv 1. Simply the Law 1 2. The Law of Nations, Ius Gentium 24 3. A Body of Legal Principles 48 4. Learning from Other Courts 76 5. Treating Like Cases Alike (in the World) 109 6. Democratic and Textualist Objections 142 7. Practical Difficulties 171 8. Legal Civilizations 187 Notes 225 Bibliography 259 Index 281

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Acknowledgments

This book is a much-expanded version of the Storrs Lectures I delivered at Yale Law School in October 2007. The original lectures can be viewed on video at http: //www.law.yale.edu/news/5408.htm. I am most grateful to Harold Koh, who was then Dean at Yale, for the invitation to present these lectures and for his hospitality. I am grateful also to Marianne Dietz for making all the arrangements in connection with the lectures. And for the three days of discussion in New Haven, I want pass on my thanks to Bruce Ackerman, Seyla Benhabib, Jules Coleman, Owen Fiss, Dieter Grimm, Paul Kahn, Dan Markovits, Matthew Palmer, Robert Post, Judith Resnik, Nicole Roughan, Jed Rubenfeld, Reva Siegel, and Matthew Smith. I began thinking about the issues I discuss in this book in 2005, when controversy erupted over the Supreme Court’s reference to foreign law in Roper v. Simmons. The editors of the Harvard Law Review invited me, along with Vicki Jackson and Ernest Young, to contribute comments on this issue to a review of the Court’s term of 2004. When I received that invitation I happened to be engaged in a two-person reading group with my friend Victor Austin, theologian-in-residence at Saint Thomas Episcopal Church in New York. Victor and I were reading Richard Tuck’s book Natural Rights Theories: Their Origin and Development (1980), and we had reached the part where Tuck was discussing the reluctance of Renaissance humanists to engage in pure natural law theory, preferring instead the more grounded discourse of the law of nations, ius gentium. Ius gentium was not identified at the time with what we today would call international law but was regarded as the experiential wisdom of the world on the main topics that humans in society needed law to address. I said to the Harvard editors, “I think this business of citing foreign law is really all about the idea of ius gentium.” They said, “No kidding. Why don’t you write about that for the Law Review?” I did. The result, an essay called ix

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“Foreign Law and the Modern Ius Gentium,” was published in the Harvard Law Review in November 2005. I knew then that there was much more to be said on this issue, so I welcomed the opportunity to devote the Storrs Lectures to this topic a year or so later. But even three lectures were not enough. There is much more to say—and the many objections arising from the essay and the lectures needed to be carefully answered. Alex Larson and Michael O’Malley at Yale University Press persuaded me to expand the book that was supposed to be devoted to the lectures and to take the space I needed to deal with these issues. I think it has expanded far beyond what they envisaged. It has certainly taken much longer to write than it should have, and I am grateful to Michael and Alex and the Press for their patience. I presented additional material on the citation of foreign law (specifically related to the argument in chapter 5 of this book) at the inaugural lecture for my University Professorship—“Treating Like Cases Alike in the World”—at New York University in 2008. Some of that material I also presented at a conference in 2008 entitled “The Changing Role of Highest Courts,” organized by the Hague Institute of International Law. Another paper, entitled “Rights and the Citation of Foreign Law,” was presented at a workshop called “Rescuing Human Rights” at King’s College, London, in March 2009. It represents the first half of chapter 6 of this book, and it appears also in its own right in the collection Rescuing Human Rights (2011), edited by Tom Campbell. The second half of chapter 6, on textualism and foreign law, is a revision of a paper I presented at a Summer Faculty Workshop at NYU in 2008. On all of these occasions I was the lucky recipient of useful comments and criticisms from various people, and I am grateful to them all. I am grateful especially to those with whom I have discussed these themes during the five years it has taken me to arrive where I am today, in this book. They include Laurie Ackermann, Jim Allan, Alex Aleinikoff, Roger Alford, Philip Alston, José Alvarez, Victor Austin, Aharon Barak, Rachel Barcow, Dan Beller, Tom Campbell, Arthur Chaskalson, Sarah Cleveland, Dennis Davis, Norman Dorsen, Sian Elias, John Ferejohn, Andrew Geddes, David Golove, Moshe Halbertal, Rick Hills, Kirstin Howard, Robert Howse, Grant Huscroft, Sam Issacharoff, Kenneth Keith, Benedict Kingsbury, Mattias Kumm, Robin Lovin, Campbell McLachlan, Liam Murphy, Gerald Neuman, Rick Pildes, Ricky Revesz, Antonin Scalia, Clarence Thomas, Andrew Tipping, Neil Walker, and Joseph Weiler. I want to acknowledge my research assistant, Lindsey Weinstock, for her help with this project in 2007 and my faculty assistant at NYU, Lavinia

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Barbu, who helped with the bibliography. I also wish to acknowledge the Filomen D’Agostino and Max E. Greenberg Research Fund for summer research support at NYU for this project in 2010. Finally, I want to mention two special people: Carol Sanger, whose presence and companionship mean the world to me and whose encouragement was indispensable to the completion of this book in the late summer of 2010; and Ronald Dworkin, my mentor at Oxford in the late 1970s and early 1980s and now my colleague at NYU. I have discussed the themes presented in this book with Dworkin on a number of occasions. But, more important than any discussion, his jurisprudence pervades this book: it has dispelled some of the cobwebs of old-fashioned positivism, it has made room for color and complexity in legal philosophy, and it has opened up many of the paths I have taken. For all that, I am most grateful, and I dedicate this book to him, with affection and respect.

Cases

In this book I refer to cases mostly by the names of the parties involved (for example, Roper v. Simmons) and sometimes by the first party’s name alone (Roper). Full citations are given in the endnotes in each chapter only on the first occasion on which a case is mentioned.

Australia Jones v. Dunkel (1959) 101 CLR 298. Wright v. Wright [1948] CLR 191

Canada Reference re s. 94(2) of Motor Vehicle Act (British Columbia) [1985] 2 S.C.R. 486 R. v. Rahey [1987] 1 S.C.R. 588. R. v. Smith [1987] 1 S.C.R. 1045

European Court of Human Rights Ocalan v. Turkey (2005) 41 E.H.R.R 45 Soering v. United Kingdom, 11 Eur. Ct. H.R. (ser. A), 439 (1989)

Hong Kong HKSAR v. Ng Kung-Siu, 8 BHRC 244 (1999)

New Zealand Commissioner of Inland Revenue v. Duncan [2007] 2 NZLR 369 Hopkinson v. Police [2004] 3 NZLR 704 Jaggar v. QBE Insurance International [2007] 2 NZLR 336 R. v. Bain [2010] 1 NZLR 1 R. v. Williams [2009] 2 NZLR 750 Secretary for Justice (N.Z. Central Authority) v. HJ [2007] 2 NZLR 289 Taunoa v. Attorney-General [2008] 1 NZLR 429 Young v. Police [2007] 2 NZLR 382

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Privy Council (Commonwealth) Pratt v. Attorney General of Jamaica [1994] 2 A.C. 1

South Africa President of the Republic of South Africa v. Hugo, 1997 (6) BCLR 708 (CC) S v. Makwanyane and Another, 1995 (6) BCLR 665 S v. Williams and Others, 1995 (7) BCLR 861 (CC)

United Kingdom Barker v. Corus UK Ltd [2006] 2 A.C. 572 Cannon v. Cannon [2005] 1 WLR 32 Donoghue v. Stevenson [1932] AC 562 EB (Ethiopia) v. Home Secretary [2009] Q.B. 1 Fairchild v. Glenhaven [2002] 1 A.C. 32 Hadley v. Baxendale (1854) 9 Exch 341 Hunter v. Chief Constable of the West Midlands Police [1982] AC 529 K v. Home Secretary [2007] 1 A.C. 412 Luke v. Lyde, 2 Burr 882; 97 Eng. Rep. 614 (K.B. 1759) Mogadara v. Holt, 1 Show. K. B. 317; 89 Eng. Rep. 597 (K.B. 1691) R. (on the application of Purdy) v. DPP [2010] 1 A.C. 345 R (on the application of Smith) v. Secretary of State for Defence [2010] UKSC 29 R. v. Davis [2008] 1 A.C. 1128 Somerset v. Stewart, Lofft 1, 18–19; 98 Eng. Rep. 499 (K.B. 1772) Winter v. Inland Revenue Commissioners [1963] AC 235 Wise (Underwriting Agency) Ltd. v. Grupo Provincial SA [2004] 2 Lloyds Law Rep. 483.

United States: Federal Cases Adamson v. California, 332 U.S. 46 (1947) Aldana v. Del Monte Fresh Produce, 416 F3d. 1242 C.A. 11 (Fla., 2005) Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 192 (1995) Atkins v. Virginia, 536 U.S. 304 (2002) Barker v. Wingo, 407 U.S. 514 (1972) Beers v. Arkansas, 61 U.S. 527 (1857) Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518 (1928) Bowers v. Hardwick, 478 U.S. 186 (1986) Coker v. Georgia, 433 U.S. 584 (1977) Dred Scott v. Sandford, 60 U.S. 393 (1856) Enmund v. Florida, 458 U.S. 782 (1982) Exxon Mobil Corp. v. Allapattah Services, 545 U.S. 546 (2005) Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) Filártiga v. Peña-Irala, 630 F.2d 876 C.A. 2 (1980) Foster v. Florida, 537 U.S. 990 (2002) Furnes v. Reeves, 362 F3d 702 (2004) Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99 (1945) IIT v. Vencap, Ltd., 519 F. 2d 1001, 1015 C.A. 2 (1975) Kadic v. Karadzic, 70 F.3d 232 C.A. 2 (N.Y., 1995)

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Knight v. Florida, 528 US 990 (1999) Lawrence v. Texas, 539 U.S. 558 (2002) Lochner v. New York, 198 U.S. 45 (1905) Mapp v. Ohio, 367 U.S. 643 (1961) McCulloch v. Maryland, 17 U.S. 316 (1819) Mehinovic v. Vuckovic, 198 F.Supp.2d 1322 (N.D. Ga., 2002) Mutual Life Insurance Company v. Armstrong, 117 U.S. 591 (1886) New States Ice Co. v. Liebmann, 285 U.S. 262 (1932) Olympic Airways v. Husain, 540 U.S. 644 (2004) Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833 (1992) Poe v. Ullman, 367 U.S. 497 (1961) Price v. Time Inc., 416 F.3d 1327 C.A. 11 (Ala., 2005) Printz v. United States, 521 U.S. 898 (1997) Rochin v. California, 342 U.S. 165 (1952) Roe v. Wade, 410 U.S. 113 (1973) Roper v. Simmons, 543 U.S. 551 (2004) Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) Stanford v. Kentucky, 492 U.S. 361 (1989) Strunk v. United States, 412 U.S. 434 (1973) Swift v. Tyson, 16 Pet., 41 U.S. 1 (1842) The Antelope, 23 U.S. (10 Wheat.) The Paquete Habana, 175 U.S. 677 (1900) Thompson v. Oklahoma, 487 U.S. 815 (1988) Trop v. Dulles, 356 U.S. 86 (1958) United States v. Eichman, 496 U.S. 310 (1990) United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) United States v. Perkins, 163 U.S. 625 (1896) Washington v. Glucksberg, 521 U.S. 702 (1997) Wilkerson v. Utah, 99 U.S. 130 (1879) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

United States: State Cases MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) People v. Daley, 818 N.Y.S.2d 300 (2006) Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889) Sargent v. Sargent, 114 A. 428, N.J.Ch., (1920) State v. Schleuter, 127 NJL 496, 23 A. 2d 249 (1941) State v. Simmons, 944 S.W.2d 165 Mo., 1997

Zimbabwe Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General [1993] 1 Zimb. L.R. 239 (1999).

Abbreviations

ECHR ECtHR EU ICCPR NZBORA

European Convention on Human Rights European Court of Human Rights European Union International Covenant on Civil and Political Rights New Zealand Bill of Rights Act

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CHAPTER ONE

Simply the Law

1. Roper v. Simmons It seems to be the law that adults cannot be executed for crimes they committed when they were children. The law where? Certainly it is now the law in the United States, assuming that Roper v. Simmons, decided in 2005, holds as a precedent.1 In that case the Supreme Court overturned the death sentence a jury had imposed on a young man, Christopher Simmons, for the brutal murder of a woman whose house he had broken into, a murder committed a few months before his eighteenth birthday.2 And, as far as we know, it is the law in every other country in the world as well. These days most countries do not have the death penalty at all, for any class of offender. But in those that do, like Japan and Jamaica, adults cannot be executed for crimes they committed when they were children. In 2000 there were a small number of countries in which that wasn’t the law: in Yemen and Pakistan, for example, adults could be executed for crimes they committed as children. But that has ceased to be the case, and in those countries too it is now unlawful to execute adults for crimes they committed before they were eighteen. When the Supreme Court was deciding Roper v. Simmons a number of justices made reference to the facts I have just mentioned, including Justice Anthony Kennedy, who wrote for the Court. They thought these facts were relevant to the decision they had to make—a decision about which the justices disagreed among themselves, in a familiar split of 5–4. Here is what Justice Kennedy said: Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. . . . [I]t is fair to say that the 1

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United States now stands alone in a world that has turned its face against the juvenile death penalty. . . . It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime.3

But how could what the law happened to be in Japan or in Saudi Arabia or in any other country that retains the death penalty, but not for crimes committed in childhood, be relevant to an American decision about what the Eighth Amendment (forbidding cruel and unusual punishment) permits a state, Missouri in this case, to do? Those countries decided this difficult issue one way; but it remained an open question in the United States when Roper came before the Supreme Court in 2004. No doubt an international consensus on this issue should give American legislators pause when the question of the juvenile death penalty comes before them. When legislators decide what the law ought to be, which is what legislators do, it makes perfect sense for them to consider what the law is in other jurisdictions, other countries, and what their experience with those legal arrangements has been. Not that our legislators ever do that, but never mind. Yet the Supreme Court was supposed to be deciding the case on the basis of what the law was, not on the basis of what it ought to be. Justice Kennedy made a big show of saying that the foreign law on these matters was not determinative for American judges. The consensus on the juvenile death penalty among other nations in the world “does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility.”4 Yet, he said, the position of the majority of justices on what the law requires on this matter “finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. . . . The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”5 So the same question arises: how can a consensus among non-American lawmakers offer “confirmation” for a controversial position—one held by five justices of the U.S. Supreme Court and denied by four—on what American law requires? Again, it is not a matter of a foreign consensus supporting a normative conclusion as to what American law ought to be, or foreign advocacy adding to the weight of American advocacy concerning law reform in the United States. The claim seems to be about positive law on both sides of the equation. Justice Kennedy seems to be saying that factual or positive-law propositions about what the law is elsewhere—the “stark reality” of law elsewhere in the world—is capable of supporting, of

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providing “respected and significant confirmation” for, factual propositions about the law that the U.S. Supreme Court is bound to apply to determine the fate of young Christopher Simmons in Missouri. To many Americans it seems obvious that such a position is wrong. To them it seems clear that American courts should use American law and only American law when they decide constitutional cases in the United States. This is not just a matter of pride, though many people who take this view are rightly proud of their constitutional heritage. But whether the U.S. Constitution is good, bad, or indifferent, it stands to reason, they think, that each country should use its own laws to decide its own cases. Sen. Jon Kyl said something to this effect in the confirmation hearings for Judge John Roberts, held a few months after the decision in Roper, when Roberts was nominated to be Chief Justice of the United States: “Our Constitution was drafted by the Nation’s Founders, ratified by the States, and amended repeatedly through our constitutional processes that involve both Federal and State legislators. It is an America[n] Constitution, not a European or an African or an Asian one, and its meaning, it seems to me, by definition, cannot be determined by reference to foreign law.”6 And Roberts seemed to agree with him.

2. “Laws Common to All Mankind” My purpose in this book is to dispute that position. I shall argue that sometimes it is appropriate for our courts to make use of foreign legal materials. To support that argument I want to set out an understanding of law that is not so tightly bound to particular societies as the “obvious” position seems to presuppose. Actually it is not hard to make the case that citation to foreign law is sometimes sensible, often helpful, and in rare cases indispensable to rational judicial decision making. (I will argue this in chapters 4 and 5.) But I want to go further. I want to argue that convergent currents of foreign statutes, foreign constitutional provisions, and foreign precedents sometimes add up to a body of law that has its own claim on us: the law of nations, or ius gentium, which applies to us simply as law, not as the law of any particular jurisdiction. Fifteen hundred years ago Roman jurists had the idea that each country complemented the law it made for itself with its observance of norms it shared with all or most other civilized countries. That idea is conveyed in the motto I use for this book: Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum jure utuntur (All peoples who

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are ruled by laws and customs use partly their own laws and partly laws common to all mankind to govern themselves). It is a quotation from Gaius, writing in the second century C.E., and it was embodied in the opening chapters of Justinian’s Institutes when they were published three and a half centuries later.7 Gaius identified these “laws common to all mankind” with what he called the ius gentium. As we shall see in chapter 2, this meaning of ius gentium, or the law of nations, has survived down the ages to the present, even though the phrase is also sometimes used to refer to international law. Gaius’s idea helps us see governance by law as in part a shared or common enterprise in human civilization, not just the idiosyncratic traditions of particular nations. Countries learn from each other and copy each others’ laws, grafting legal conceptions from one system on to another. And it is important that countries be of one mind on many issues, not just for pragmatic reasons of comity in law enforcement, but also for reasons of integrity and fairness. I shall argue that these reasons are sometimes so powerful in specific areas of law that they are best presented in the form of the relevant legal propositions’ having a claim on us as law—not the law of any particular country, but law in the world. The best sense I can make of what happened in Roper v. Simmons is that the principle that was recognized and applied in that case—namely, the principle that adults are not to be executed for crimes they committed when they were children—was treated as part of this body of law common to all mankind. The same can be said about several other principles connected with the death penalty. It is law in the world that children are not to be executed, a principle much less controversial than the execution of adults for crimes they committed when they were children; neither are mentally ill convicts who are incapable of understanding what is happening at the time of their execution. It is the law also that pregnant women are not to be executed, at least not until they have given birth.8 These principles seem to be well established in the world, though in some instances the United States came late to their recognition.9 There is a similar consensus about methods of execution: they should be orderly, dignified, and, as far as possible, painless. The almost universal revulsion that greeted the recent prospect of a woman being stoned to death in Iran for adultery is evidence of this.10 Jurists in Europe tell me that we are heading toward a situation in which the death penalty in any shape or form is rejected by the legal systems of the world. I don’t think we are there yet, but in certain parts of the world—certainly in Europe itself, for example—something like that position is established. Ius gentium is not just about the death penalty, though principles regulating that practice have been prominent in the American debate because it

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is one of the areas where American legal exceptionalism gives rise to the most critical—and the most defensive—reactions. These laws common to all mankind pop up in all sorts of places. We notice them, for example, in a shared sense of what is sometimes called natural justice (the rudiments of procedural due process), in many of the fundamental principles of contract and commercial law, in the idea of proportionality in criminal and constitutional law, in the basic elements of what we call the rule of law, in the law of self-defense, and in a broad global consensus about what a country’s constitution ought to be like. The issue is not about global uniformity. The position propounded in that quotation from the Institutes is that although countries are governed partly by laws they share with the rest of humankind, they are still also partly governed by laws that are strictly their own. But one mustn’t assume that the most important legal principles are the idiosyncratic ones. I believe jurisprudence has left behind the doctrine, which flourished briefly in the nineteenth century, that legal ideas were the outgrowth of the national character of particular peoples and, like their culture and their language, were distinctive, unique, and valuable in their peculiarity.11 To a large extent, we treat law more like science—as a global enterprise of which we partake— than like a national costume or some aspect of the culture we would put on show to establish our distinctiveness. There are all sorts of areas where a stranger, coming to the laws of a foreign land, will come with a reasonable expectation that the main principles of law will be the same the world over even though there may be differences in detail. The stranger will expect that there will be no punishment without trial; that anyone accused of a crime or delict will have the right to explain himself to an impartial tribunal and call witnesses if necessary; that contracts are enforceable, though the detailed conditions of enforceability may vary; that, harm for harm, conduct which is intentional will be penalized more heavily than conduct which is merely careless, though certain forms of carelessness will attract legal sanction; that children are treated differently at law than adults; that there will be provision for the conveyancing of property; and so on. These are all very broad legal ideas, and some of them I have described with a degree of abstraction that makes them seem anodyne and unlikely to be helpful in the settlement of any specific legal dispute. But as the book goes on, I will cite other examples—besides the principle in Roper v. Simmons—in which elements of ius gentium play an important role in the resolution of difficult cases. For the purposes of introduction I am trying to make this discussion seem obvious. But of course it is not obvious. What I defend here is a difficult

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and challenging position, which is why it will take a whole book to expound it. The idea of something being simply law in the world seems to go against everything we know about law, which is that law always carries a national tag of origin and application. It is American law made by Americans for Americans, or it is French law made by French institutions for France. I shall talk more about this alleged relativity of law to a particular place, a particular people, and a particular set of institutions in section 5 below. Specialists in American law may think that the position I am going to set out collides directly with doctrine laid down by the U.S. Supreme Court in 1934 in the great case of Erie Railroad v. Tompkins.12 The court in that case rejected the idea of a body of common law floating free of any institutional provenance in the legal system of any particular state. It rejected the idea of a set of principles, the same for all times and places, that could be used to settle disputes arising in circumstances where it wasn’t clear which body of law (of which American state) should be invoked to settle them. It looks like I am trying to resurrect something that American jurists thought they had buried more than seventy years ago. The Court in Erie was not talking directly about ius gentium in the sense that I am using it, but many jurists since have argued that the Court’s holding in that case places severe limits on one’s ability to invoke anything like the law of nations in disputes that arise within this country. So that challenge has to be confronted. (I talk about Erie and its implications at some length in chapter 3.) A difficult theory should be neither easy to present, nor laid out in a way that gives the impression that objections to it can be lightly waved off. All sorts of objections have to be confronted, from doctrinal and jurisprudential difficulties such as those that arise out of the Erie case to objections based on democracy and national sovereignty that inevitably come up when foreign law is given some influence in American affairs. (I address this set of objections in chapter 6.) I shall try to deal fairly with all of these difficulties, for the aim is not so much to nail down a hypothesis as to make lawyers more thoughtful, to make them think more complicated thoughts, about the interplay between law in one country and law in the world.13

3. Alternative Interpretations of the Use of Foreign Law Is it really necessary to get so grand and theoretical in trying to figure out what was going on with the invocation of foreign law in Roper v. Simmons? Some might say that the use of foreign law has less to do with any abstruse theory of ius gentium than with the particular constitutional provision, the Eighth Amendment, that the Supreme Court was applying in

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that case. The Eighth Amendment forbids cruel and unusual punishment. Maybe Justice Kennedy and the majority thought that the practices of other countries were relevant to the issue of the unusualness of the juvenile death penalty. Or maybe they thought that worldwide opinion was relevant to establishing the “evolving standards of decency” that recent doctrine associates with the reference to cruelty in the Eighth Amendment.14 There is something to this point. Later I consider the way in which the growth of ius gentium is, so to speak, sponsored by provisions in national law that point implicitly to universal standards in this way. But as it stands, this is not an adequate explanation of Roper. For one thing, it is established doctrine in the interpretation of the Eighth Amendment that “unusual” refers to the existence of a national consensus that some punishment is inappropriate, usually a consensus among the states. For another thing, Justice Kennedy and other members of the Roper majority have also referred to foreign law in cases that do not involve the Eighth Amendment’s criterion of unusualness or the doctrine of evolving standards of decency in punishment. Lawrence v. Texas (2002) is a good example.15 Lawrence involved a successful challenge to the constitutionality of laws forbidding homosexual activity. In upholding the challenge, Justice Kennedy noted that laws banning homosexual acts in England, Scotland, and Wales had been repealed in 1967. He also cited a decision by the European Court of Human Rights (ECtHR), Dudgeon v. U.K. (1981), that required the extension of this freedom to Northern Ireland as well.16 And he said this approach has been followed by democracies in Europe and elsewhere: “Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct.”17 The Lawrence case was argued under the Fourteenth, not the Eighth, Amendment. But evidently Justice Kennedy and the majority thought that foreign law was relevant in this area too.18 So we do need some other account of what is going on with the citation of foreign law. Another possibility—politically provocative but jurisprudentially less ambitious than the one I am committed to—is that the majority invoked foreign law in Roper v. Simmons because it thought that international law might be relevant to the disposition of the case. On the face of it, international law seems an obvious exception to the commonsense view that law is relative to particular countries. But it is not really an exception. International law has its own sphere of operation: it applies specifically to relations between sovereign states in the world, just as American law, British law, and Yemeni law have their own spheres of operation. The Court in Roper did mention international law. Justice Kennedy noted that “Article 37 of the

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United Nations Convention on the Rights of the Child . . . contains an express prohibition on capital punishment for crimes committed by juveniles under 18.”19 But he also noted that the United States is one of few countries that has not ratified this convention,20 so it is not really international law for Americans.21 And even if it were, it is not clear that American constitutional doctrine would allow the direct invocation of a convention obligation in a domestic case. The human rights organization Amnesty International has argued that “the use of the death penalty against child offenders is prohibited under customary international law,”22 and presumably the existence of a consensus among national legal systems would be relevant to the establishment of that claim. (Amnesty International joined an amicus brief in Roper v. Simmons.)23 But Justice Kennedy said nothing about customary international law when he cited the global consensus on this matter; he gave no indication that that was why he thought foreign law was relevant in an American case. In the debate that followed the decision in Roper v. Simmons, critics of the Court’s decision frequently ran together the issue of the citation of foreign law and the citation of international law.24 And I believe there is a degree of entanglement between them, not only in the controversy but in any decent resolution of it. So I am going to reserve the question of the relevance of international law for later discussion. I don’t think it goes to the heart of the matter. There is a controversy just about the citation of foreign law in American cases; I think it is worth getting to the bottom of that issue, in a way that is, in the first instance at least, independent of any dimension of international law. So if we want to try to figure out the role that foreign law should play in a case like Roper, we should resist that particular distraction. Finally, in this catalogue of ways in which one might try to defuse the issue raised by the citation of foreign law in Roper v. Simmons, I should note that this whole ius gentium approach is my invention, not the Court’s, at least not explicitly. Justice Kennedy said nothing about it. Moreover, nothing that has been said since Roper by the justices who referred to foreign law in that case has indicated that they have anything this ambitious in mind. They just seem to think that citing foreign law in their modest way makes sense. And when Supreme Court justices like Kennedy and Stephen Breyer argue in other forums that citing foreign law is sometimes a good idea (and when they debate those like Justice Antonin Scalia who think that it is an outrageous idea) they have defended the practice in mostly pragmatic terms.25 That is fine as far as it goes. But if we leave the matter there we miss an opportunity to consider some of the ways in which law works that are not

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tied to particular legal systems—to steal a phrase from Neil Walker, some of the streams and currents of law that eddy around the rocks of particular national legal systems but that cannot be reduced to them.26 It is not that the pragmatic arguments are unimportant. Chapter 4 is devoted to the case that can be made for legal systems learning from one another, not just at the legislative level but also in the way in which courts grapple with and untangle doctrinally complicated cases. And, as we shall see in chapter 5, there are important considerations of comity, integrity and fairness that argue for some harmonization of the laws of different nations on various issues. My theory of ius gentium is supposed to crystallize these arguments and give them substance as a standing body of reasons to be considered in cases where the benefits of foreign law are clearest. So long as we regard the pragmatic arguments as pointing simply to piecemeal considerations that may be taken languidly into account in some cases and not others, depending on what seems opportune or politic to some particular judge, we will not really get a sense of the underlying jurisprudential issues. There are deep questions about the presence of law in the world that need to be considered—and question marks that need to be raised over the common view that law is always relative to particular national systems. The dispute about foreign law in a case like Roper v. Simmons offers an opportunity to raise these questions and address these issues. We should not flinch from that opportunity.

4. The Outcry The American people certainly didn’t think that the citation of foreign law in Roper v. Simmons was just a matter of pragmatics. There was a huge outcry in the United States when it came to light that foreign law had been relied on in striking down the juvenile death penalty. On the Court itself, Justice Scalia, furious in his denunciation, said, “The basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand.”27 Scalia pointed to the numerous areas of constitutional doctrine—indeed, liberal constitutional doctrine—where the same justices seemed impervious to differences between the American approach and that of most other countries: the exclusionary rule (excluding otherwise probative evidence obtained by irregular searches), prayer in schools, abortion rights, the right to jury trial, the prohibition on double jeopardy, and so on. Justice Scalia wrote, “The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke

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alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry.”28 Moreover he was quite unwilling to accept that the citation of foreign law in Roper was harmless decoration: “The Court’s . . . attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. ‘Acknowledgment’ of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment—which is surely what it parades as today.”29 For what it is worth, I am with Justice Scalia on that. Fred Schauer has noticed the oddity of conducting this debate purely in terms of the citation of foreign law, as though it were simply a matter of the footnotes with which judges festoon their opinions.30 The invocation of foreign law may not be dispositive, but it is surely doing important work, and we should not try, as some scholars have, to finesse the outcry by pretending that it amounts to nothing.31 That is why I shall mostly use the term “use of foreign law” or “invocation of foreign law” rather than “citation of foreign law” to leave open the possibility that substantial authority (even if not dispositive authority) is being accorded to the foreign law when it is invoked Meanwhile, back to the outcry. Outside the Supreme Court, condemnation of the justices’ reliance on foreign law was unrestrained. There were ferocious newspaper editorials, 32 death threats against some of the justices,33 and ugly talk of impeachment,34 and legislation was introduced in the Congress which would prohibit any reliance by a federal court on foreign legal materials.35 A well-known right-wing lawyer and commentator, Edwin Vieira, said publicly that Justice Kennedy “upholds Marxist, Leninist, satanic principles drawn from foreign law,”36 and he said that his (Vieira’s) “bottomline” solution to all this was “no man, no problem,” apparently a reference to Stalin’s famous observation that “death solves all problems: no man, no problem.”37 The justices were accused of undermining American sovereignty38 and the authority of American law.39 The comments of Gary Bauer, the chairman of the Campaign for Working Families and president of an organization called American Values, were typical: How can we decide on the constitutionality of a law based on laws from some other country’s constitution? . . . [T]he precedent of referring to international law threatens our national sovereignty. America is a unique nation, with a unique Constitution that has its own history. How can we interpret it based on the standards and values of judges in Zimbabwe? . . . Under no circumstances should laws passed by the British Parliament, the French National Assembly, the German Bundestag or the High Court of Zimbabwe be a factor in deciding what is a permissible decision by the American people in our own self-governance.40

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Obviously there is a lot going on here: there is a mixed sense of national pride in our Constitution, resentment of foreign criticism, and, as I have said several times now, a conviction that presents itself to common sense as an axiom of jurisprudence: only American law can decide American cases.

5. Sensitivity on the Death Penalty The explosion was actually brewing for thirty years or more before Roper v. Simmons was decided. There is a long line of death penalty cases in which foreign law has been invoked, sometimes successfully and sometimes in dissent by some of our justices, to try to bring American penal practices into line with those elsewhere in the world.41 Americans are quite sensitive on the issue of capital punishment, on which they are an outlier among advanced democracies, and they often become very defensive when contrasts are drawn between forms of punishment they cling to here and penal philosophies abroad that condemn some U.S. practices as barbaric. Let me run through a few cases which show the brewing controversy among Supreme Court justices about how much attention should be paid to foreign law in the slow process of making our death penalty jurisprudence more civilized.42 In 1977 in Coker v. Georgia the Supreme Court invoked “the climate of international opinion” in deciding that the death penalty could not be imposed for the rape of an adult woman in which no murder was involved. The Court said that “out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue.”43 The dissenters in that case did not quarrel with the use of foreign law, though they objected to the outcome. Something similar happened in Enmund v. Florida (1982), which concerned the felony-murder rule: could a man be sentenced to death for participating in a robbery in which a murder occurred even though he himself was not the killer? The Court announced that it was going to follow the same approach as in Coker, “look[ing] to the historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made before bringing its own judgment to bear.”44 But the international material was consigned to a footnote. Observing that since Coker “the climate of international opinion concerning the acceptability of a particular punishment” is an additional consideration which is “not irrelevant,” the Court pointed out that “the doctrine of felonymurder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe.”45

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The application of the death penalty to juveniles began to be an issue in Thompson v. Oklahoma (1988).46 In 1983 William Wayne Thompson committed a brutal, premeditated murder which, had he been an adult, would almost certainly have satisfied the criteria for the imposition of Oklahoma’s death penalty. He was, however, fifteen years old at the time. Still, Oklahoma made a determination to try him as an adult, and he was convicted and sentenced to death. He applied to the Supreme Court for consideration of whether the imposition of the death penalty on one so young at the time of his offending violated the constitutional prohibition on cruel and unusual punishment. The Court, by a majority, decided that it did and, in reaching that conclusion, appealed to the experience of other legal systems: The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our AngloAmerican heritage, and by the leading members of the Western European community. Thus, the American Bar Association and the American Law Institute have formally expressed their opposition to the death penalty for juveniles. Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand (it has been abolished in Australia, except in the State of New South Wales, where it is available for treason and piracy), in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union.47

And so the life of this vicious young man was spared. At this point, however, we begin to hear some dissent about the appropriateness of referring to foreign law. Justice Scalia, who could not find any “plausible basis” for saying that “no criminal so much as one day under 16 . . . can possibly be deemed mature and responsible enough to be punished with death for any crime,”48 said this about foreign law: The plurality’s reliance upon Amnesty International’s account of what it pronounces to be civilized standards of decency in other countries . . . is totally inappropriate as a means of establishing the fundamental beliefs of this Nation. That 40% of our States do not rule out capital punishment for 15-year-old felons is determinative of the question before us here, even if that position contradicts the uniform view of the rest of the world. We must never forget that it is a Constitution for the United States of America that we are expounding. The practices of other nations,

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particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so “implicit in the concept of ordered liberty” that it occupies a place not merely in our mores but, text permitting, in our Constitution as well. . . . But where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution. In the present case, therefore, the fact that a majority of foreign nations would not impose capital punishment upon persons under 16 at the time of the crime is of no more relevance than the fact that a majority of them would not impose capital punishment at all, or have standards of due process quite different from our own.49

Controversy flared up again in 1989. Stanford v. Kentucky involved a death sentence imposed on a young man for rape, sodomy, and murder in the course of a robbery he committed at the age of seventeen. (It was consolidated with another case involving a murder committed in the course of a robbery by a sixteen-year-old.) Again the question was whether people could be executed for offenses committed when they were juveniles. Justice Brennan said in that case, “The choices of governments elsewhere in the world . . . merit our attention as indicators whether a punishment is acceptable in a civilized society.”50 But that was in a dissenting opinion. In upholding the death penalty, the Supreme Court rejected the use of foreign law. Citing his own dissent in Thompson v. Oklahoma, Justice Scalia, writing for the Court, denied the relevance of the sentencing practices of other countries: “We emphasize that it is American conceptions of decency that are dispositive.”51 (Kevin Stanford remained on death row until in 2003 the governor of Kentucky commuted his death sentence to life imprisonment, citing the injustice of executing a man for offenses he committed as a minor.) The seesaw tilted back the other way in 2002, in Atkins v. Virginia, when a majority on the Court cited international opinion for the proposition that the death penalty should not be imposed on an individual with the mental age of a child of nine or ten years old: “Within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.”52 In a dissent, Chief Justice William Rehnquist observed that this view was at odds with the precedent established in Stanford v. Kentucky: “While it is true that some of our prior opinions have looked to ‘the climate of international opinion,’ to reinforce a conclusion regarding evolving standards of decency, . . . we have since explicitly rejected the idea that the sentencing practices of other countries

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could serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.”53 Chief Justice Rehnquist’s skepticism did not prevail, though he reiterated it a year or two later by associating himself with Justice Scalia’s furious dissent in Roper v. Simmons. This brief survey would be incomplete without considering a low-grade war conducted between Justices Breyer and Clarence Thomas in memos accompanying denials of certiorari on the subject of what is known elsewhere in the world as “the death row syndrome.” Justice Breyer seems willing to accept the argument, which courts in Britain and in Europe have accepted, that there is something inherently cruel in the “astonishingly long delays flowing in significant part from constitutionally defective death penalty procedures.” Dissenting from a denial of certiorari in Knight v. Florida (1999), Justice Breyer observed, A growing number of courts outside the United States—courts that accept or assume the lawfulness of the death penalty—have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel. In Pratt v. Attorney General for Jamaica, for example, the Privy Council . . . concluded that it was an “inhuman act to keep a man facing the agony of execution over a long extended period of time,” . . . and the delay of 14 years was “shocking.” . . . It held that the delay (and presumptively any delay of more than five years) was “inhuman or degrading punishment or other treatment” forbidden by Jamaica’s Constitution unless “due entirely to the fault of the accused.” . . . And the European Court of Human Rights, interpreting the European Convention on Human Rights, noted the convention . . . prohibited the United Kingdom from extraditing a potential defendant to the Commonwealth of Virginia—in large part because the 6- to 8-year delay that typically accompanied a death sentence amounts to “cruel, inhuman, [or] degrading treatment or punishment.”54

Justice Breyer also cited a ruling from India to the same effect and— something that landed him in particularly hot water so far as public opinion was concerned—a ruling from the Supreme Court of Zimbabwe. He acknowledged that “not all foreign authority reaches the same conclusion,” and he cited the Canadian decision in Kindler v. Minister of Justice (1991).55 Then he continued:” Obviously the foreign authority cited in favor of the death row syndrome does not bind us. Nonetheless . . . this Court has long considered as relevant and informative the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances. In doing so, the Court has found particularly

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instructive opinions of former Commonwealth nations insofar as those opinions reflect a legal tradition that also underlies our own Eighth Amendment. . . . In these cases, the foreign courts I have mentioned have considered roughly comparable questions under roughly comparable legal standards. . . . Consequently, I believe their views are useful even though not binding.

The other justices did not agree. Justice Thomas noted tartly that he was “unaware of any support in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed. Indeed, were there any such support in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the ECtHR, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.” Breyer’s was a solitary dissent from a denial of certiorari in Knight, and when he dissented again on similar grounds in Foster v. Florida (2002) he found himself subject to this harsh retort from Justice Thomas: “While Congress, as a legislature, may wish to consider the actions of other nations on any issue it likes, this Court’s Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans.”56 It seemed obvious to Justice Thomas, as it seems obvious to many Americans, that American law and only American law should be used to decide death penalty cases in the United States. If there is a question about the constitutionality of the death penalty, Americans should answer that question by looking to the Eighth Amendment and to the way their Courts have interpreted the Eighth Amendment, not to the statute in 1961 that abolished the death penalty for murder in New Zealand57 or to the decision of 1995 in S v. Makwanyane in which the Constitutional Court of South Africa declared the death penalty unconstitutional,58 or to Protocol Six of the European Convention on Human Rights (ECHR), in force since 1983, which requires parties to the convention to restrict the death penalty to times of war or imminent danger of war. Americans are, after all, Americans, not New Zealanders, South Africans, or Europeans, they would say. Foreigners have their views (their “moods, fads, or fashions”) about the death penalty, and we have ours. Or rather, because opinion is split between proponents and opponents of the death penalty in all these countries, I should say, those countries have their controversies and their ways of settling controversies about the death penalty, and we Americans have our controversies and our ways of settling them. Law and constitutionality are relative to particular countries, and the fact that something is unlawful or constitutional in one country surely has no bearing on whether it is lawful

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or constitutional in another. And if this is true of the death penalty itself, then surely it is true of the details of its administration. That is the conviction I am going to have to displace if I am to make my argument about ius gentium in this book.

6. Is Ius Gentium an Issue in Other Countries? The heat generated by the question of ius gentium probably has a lot to do with the hot-button topics on which American sensitivities are exposed: the death penalty and the lingering remains of laws proscribing homosexual activity. Americans know they have been out of step with other advanced democracies on these issues, and they are either furious about that or defiant or both. (Probably there is an element of post-9/11 sensitivity involved as well. Americans have felt particularly beleaguered by the suggestion, certainly not unjustified, that they deviated from the global condemnation of torture in the tactics adopted by the administration of George W. Bush and defended by some of its lawyers in the war against terrorism.) Nothing I say in this book will make any of that anger go away. But I do want to focus on the cooler issue of legal relativism, which, as we have seen, is always lurking as a background jurisprudential theme to the foreground shouting and foaming about the betrayal of America’s values. I will say it again: it just seems obvious to many that American courts should use American law and only American law when they decide constitutional cases in the United States. And if that is true for Americans, it is presumably true for other countries as well. English courts should use English law, not American law; French courts should use French law;59 Yemeni courts and only Yemeni courts should use Yemeni law, and so on. The general philosophical position, in other words, is that law is a relative term. Just as a person cannot be an uncle without being the uncle of someone in particular (and not of others), so something cannot be the law without being the law of some particular jurisdiction. Relativism is usually a dirty word. But this sense of law’s relativity is quite settled in many people’s minds: it is part of the meaning of law to refer to a specific jurisdiction in this way. If you ask, “What is the law on the subject of divorce?” we always assume that you are asking about the divorce law of some particular country, usually your own country or perhaps the country of the person you are talking to or a country you are considering visiting or moving to. If you were to say, “I am not asking about any one country, I just want to know what the law (on divorce) is,” the question would barely make sense.

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If modern legal positivists are correct, law is in fact relative in a double sense: it is the law of a country because it applies to that country, and it is the law of a country because it was laid down or posited by that country’s political institutions. The two relativities go together: American law by American institutions, for the American people. In theory the two can come apart: one country can make laws for another, as the United Kingdom was entitled to do for Canada until a certain time in the (embarrassingly) recent past. But for most nations, it is a matter of pride that the law which is for them is also a law made by them. That is what is meant by self-determination, and no doubt that plays a part in the controversy we are considering. For many people it is something of an affront to have cases in their country decided on the basis of laws enacted by some other people. If this “obvious” relativism is true as a matter of general jurisprudence, then we would expect something like the same sensitivity to the citation of foreign law in all countries. True, it might not be motivated in exactly the way controversies in the United States are motivated; it might not involve the same topics. Still, we would expect the underlying logic to be the same. It should be as strange and roughly as offensive to national pride to allow American decisions to be invoked in New Zealand as it is to allow New Zealand or English or French decisions to be invoked in the United States. But here is where the obvious position begins to unravel. In many other countries in the world foreign law is cited all the time, and nobody gives a damn.60 They seem to take for granted what in the United States one has to set out as a laborious (and probably unconvincing) argument. I come from New Zealand; I went to law school at the University of Otago. I learned how to work with foreign law (English law, Australian law, sometimes Canadian and American law), and it never occurred to me to question or object to the practice of invoking it. New Zealand lawyers see no affront, for example, in the citation of Australian cases. It is not that they are bereft of national pride. The furious pride that is chanted out in a haka, the pregame Maori challenge, at rugby matches between the All Blacks and the Wallabies and that has led New Zealand to decline the invitation to join the Commonwealth of Australia—an invitation issued in 1900 and still open61—has no impact at all on the readiness of New Zealand lawyers to cite and sometimes rely on Australian law. Recently the Supreme Court of New Zealand had to decide about the admissibility of a recording of an emergency call (the New Zealand equivalent of 911) in a notorious murder case.62 Some experts thought they could discern the sotto voce admission “I shot the prick” in what was conceded to be an emergency call by the defendant; others thought it was a mere

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exhalation, “no more than an audible out-breath that has, in the distress of the moment, been modified by a random and unfortunately-sequenced series of movements of the tongue and lips so as to create a series of sounds that could—albeit with a little effort—be heard as ‘I shot the/that prick.’ ” The question was whether the interpretation of the recording should be left to the jury, having heard and assessed the rival bodies of expert evidence. The New Zealand court decided that the evidence should be excluded, citing a general principle set out in a decision of the High Court of Australia to the effect that admissible evidence “must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture.”63 The New Zealand court also cited American authority to the same effect.64 Such willingness to refer to the law of other systems is not the exception in New Zealand, but the rule. A recent decision of the New Zealand Supreme Court in Taunoa v. Attorney-General (2008) provides a good example.65 In the determination of some difficult questions about the application of the New Zealand Bill of Rights Act to the behavior-modification regime practiced in Auckland prison, the Supreme Court cited twenty-two U.S. cases, nine Canadian cases, eighteen cases decided by the ECtHR, three South African cases, eight U.K. cases (plus six Privy Council decisions), and ten decisions by the UN Human Rights Commission, as well as seventeen New Zealand cases.66 Having read the opinions of the five justices extending over more than a hundred pages, I believe it is fair to say that this material is not cited either as decoration or merely as Kennedy-style “respected confirmation” for the outcome any particular justice wanted to reach. Instead, the cases are cited in the course of complex analysis and consideration of the various nested issues the justices had to confront. Taunoa is a model of the citation of foreign law, and it gives the lie to those in the United States who deny that such citation can be undertaken in a manner which is both disciplined and illuminating.67 It’s been a while since I studied law in New Zealand, but I read the New Zealand Law Reports regularly. A random flip through a recent issue shows that foreign law was cited, sometimes as dispositive, in four out of the seven cases reported.68 A child custody case considered and took apart British and American authority on the Hague Convention.69 Tests laid down by the House of Lords were considered in a taxation case70 and adopted in a case devoted to abuse of process under the New Zealand Bill of Rights Act.71 In another decision, the New Zealand Court of Appeal adopted a test laid down by the English Court of Appeal concerning the effect of nondisclosure in insurance law.72

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Why do New Zealand courts do this? English courts are not part of the system in New Zealand. Even when the final appellate tribunal for New Zealand was the Privy Council in London, New Zealand lawyers took pains to distinguish between the jurisprudence of the Privy Council, which was binding on them, and the jurisprudence of the House of Lords, comprising mostly the same law lords, which was not. I have heard it said that the desire for consistency with British law is a relic of empire: Queen Elizabeth has the obligation to treat like cases alike throughout her dominions. I don’t buy that. New Zealand lawyers don’t cite to other Commonwealth countries because we all regard the same elderly woman as our queen,73 although no doubt history has something to do with the comity on which this is based.74 The citations go in both directions. The House of Lords (and now the U.K. Supreme Court) refer to Australian and New Zealand cases as well. Also, it is not just Commonwealth countries that they cite. In the great case of Donoghue v. Stevenson (1932), which laid the foundation in British law for tort liability in negligence, Lord Atkin (in the majority) said, It is always a satisfaction to an English lawyer to be able to test his application of fundamental principles of the common law by the development of the same doctrines by the lawyers of the Courts of the United States. In that country I find that the law appears to be well established in the sense in which I have indicated. The mouse had emerged from the ginger-beer bottle in the United States before it appeared in Scotland, but there it brought a liability upon the manufacturer. I must not in this long judgment do more than refer to the illuminating judgment of Cardozo J. in MacPherson v. Buick Motor Co. in the New York Court of Appeals . . . in which he states the principles of the law as I should desire to state them, and reviews the authorities in other States than his own.75

There was indeed so much discussion of foreign authority in this case that Lord MacMillan (also in the majority) said, after discussing MacPherson v. Buick and the New York case of Thomas v. Winchester, “The prolonged discussion of English and American cases into which I have been led might well dispose your Lordships to think that I had forgotten that the present is a Scottish appeal which must be decided according to Scots law.”76 But, he said, “this discussion has been rendered inevitable by the course of the argument at your Lordships’ Bar,” which proceeded on the basis that the court should attend to the overall currents of legal opinion in this matter in common law jurisdictions the world over. And this tradition has continued in the United Kingdom. Recent examples include the following: in Regina v. Davis (2008) the House of Lords cited case law from the United States, New Zealand, and South Africa on the

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question of anonymous testimony;77 in Barker v. Corus UK Ltd (2006) the same body referred to American market-share theories of tort liability;78 in K v. Secretary of State for the Home Department (2007), their Lordships cited New Zealand, Australian, and American case law on the significance for refugee law of membership in a particular social group;79 and in EB (Ethiopia) v. Home Secretary (2009) a lower English court cited case law from the United States and Canada on the significance of deprivation of nationality.80 I believe these countries cite to one another because they value one another’s assistance in lawyer’s method—analysis, abstraction, analogy. They follow the paths others have pioneered through difficult, tangled problems. They share a sense of drawing down from the same body of intellectual legal resources, a sense that each country is contributing to a common storehouse, and they cannot imagine doing without it. Their sense of the law is like Edmund Burke’s sense of individuals’ understanding of politics: “We are afraid to put [each isolated system] to live and trade each on its own private stock of reason; because we suspect that this stock in each [system] is small, and that the [individual countries] would do better to avail themselves of the general bank and capital of nations and of ages.”81 Some defenses of the use of foreign law see it as a piecemeal exercise. Others—and this is the view I take—link it to something more like an overarching system: the “laws common to all mankind” that I refer to in my title. I think the example of the Commonwealth countries helps one see the process as more like the second of these. Jurists are not just magpies, gathering bright ideas from hither and yon. There really is a sense of the existence of a common stock of doctrine and principle that we draw from, not because it is British but because it has established itself as a tried and tested result in Commonwealth jurisprudence generally. The Commonwealth is not the nations of the earth, and the common law world is not the only legal world. But this shared sense of a common legal heritage is something like what I have in mind when I talk about ius gentium, a body of law common to all humankind.

7. The Need for Jurisprudence None of this talk about the Commonwealth proves anything, except perhaps that the argument I am going to make in this book is not as forlorn or ill-advised as an exclusive focus on the American debate might suggest. The fact that other countries use foreign law does not show that Americans should. One can almost hear the response: “They may be willing to prosti-

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tute their legal traditions, but we shouldn’t give up our sovereignty so easily.” Indeed, I find it quite frustrating that one seldom hears any argument among British or Commonwealth lawyers about the use they make of the law of other jurisdictions. They do it (complacently), and they (smugly) reproach the Americans for getting all hot and bothered about it when it happens in Washington. But the Commonwealth lawyers and judges don’t really have a jurisprudence which explains what they are doing in this regard. What is usually said, in Britain, for example, or in New Zealand, is that precedents from other countries have persuasive authority but no binding authority. But the phrase “persuasive authority” is ambiguous.82 Sometimes it means treating a precedent as having force only by virtue of the persuasiveness of the reasoning it embodies; other times it means treating a precedent as having less than binding force, but still some force independent of its persuasiveness. Yet there is seldom a good argument as to why foreign precedents should be persuasive in this second sense. Foreign precedents are treated as carrying some weight, independent of the persuasiveness of their reasoning; but there is no good account of why they carry the weight they do. Until such an account is made, the problem of the invocation of foreign law is as mysterious in London and in Wellington as it is in Washington, D.C. I think the United States provides a better philosophical environment for discussing whether and why courts should cite and rely on decisions from foreign jurisdictions; certainly it is a good environment for discussing the underlying ideal of some sort of global unity among courts.83 I do not mean it is overly hospitable to these ideas. Quite the contrary, the American environment is bracingly bereft of the smug assumptions in favor of the citation of foreign law that one finds in other common law jurisdictions. But precisely because there is such controversy about this issue in the United States, such furious opposition among conservative sections of the judiciary and a considerable portion of the politicians, the public, and the law professors to the idea of referring to foreign law—precisely because of all this, it follows that nothing can be taken for granted, nothing can be left implicit, in the arguments one tries to develop. Arguments have to be sharper and clearer than they are, for example, in Britain, where the citation of foreign law, including American law, is taken for granted, or in South Africa, where it is welcomed in the constitution.84 In my first engagement with this topic, in a short piece I wrote for the Harvard Law Review in 2005, I said that one of the frustrating things about Roper v. Simmons is that no one on the U.S. Supreme Court bothered

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to articulate a jurisprudential defense of the citation and authority of foreign law.85 The justices who cited foreign law simply gave the impression that they thought it was a good idea. And those who opposed it simply denounced it, giving the impression that there was not really a theory there to be refuted. And in a way they were right to give that impression. Too many scholars who support the citation of foreign law say simply (if they are nonAmericans) this is something we do all the time, or (if they are Americans) this is something we obviously ought to do, almost every other country does it, so why shouldn’t we? Well, that is not jurisprudence, and huffing and puffing in English or French about American parochialism is not a theory either. Neither is mouthing platitudes about paying “a decent respect to the opinions of mankind,” a phrase used in the Declaration of Independence not to justify the importation of foreign precedents but to justify requiring American patriots to explain themselves to the world.86 The tendency to substitute platitude for argument is an endemic disorder of legal scholars, amply exemplified by what is said on this issue by those who support the invocation of foreign law. I am a strong supporter of this practice. But I believe the underlying philosophy needs to be thought through more carefully. 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, confirmatory versus persuasive versus conclusive; about the areas in which foreign law should and should not be invoked, as in 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.87 The theory has to be strong enough to dispel the serious misgivings many Americans have about this practice. 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 Europeans88 or that we need to make “a good impression” in the world.89 It must explain why American courts are legally permitted or obliged to invoke non-American sources and how that practice connects with the status of courts as legal institutions. An analogy 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 a theory of stare decisis, which provides a platform on which judges can articulate and defend

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their deference to precedent. The theory of stare decisis 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, for instance, the difference between stare decisis in common law and in constitutional interpretation). No doubt the details of stare decisis are controversial. But even if one disagrees with a judge’s conception of the bindingness of precedent, it is surely better that he 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. In his dissent in Roper, Justice Scalia said that the Court’s citation of foreign law was unprincipled and opportunistic.90 Even this observation, however, does not mean 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.91 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. What I attempt in this book is a sort of jurisprudence meets Roper v. Simmons. Too many scholars who support the citation of foreign law say simply that it is common sense to do so. Every other country does it, so why shouldn’t we? But isn’t this exactly where one would expect the jurisprudence professors to come in? Isn’t that what we are hired for? It is our job to investigate the platitudes on which the ordinary operation of law depends. If citing foreign law is obvious, if it’s a ubiquitous practice, then that should tell us something about how the legal world is shaped, and what its various divisions amount to. We legal philosophers have not been very good in the past twenty years thinking about the weird shapes legal systems and systems of legal systems are beginning to adopt.92 To our shame, we have had virtually nothing to say in regard to, for example, recent controversies about the nature and reality of customary international law. We have been too busy squabbling about what H. L. A. Hart should have said to Ronald Dworkin. I think it is high time analytic legal philosophers woke up to some of these issues.

CHAPTER TWO

The Law of Nations, Ius Gentium

1. A Clue from Justice Scalia In Roper v. Simmons, Justice Scalia was withering in his criticism of the majority’s reliance on foreign law. He complained that while the Court treated “the views of our own citizens [as] essentially irrelevant” to its decision, “the views of other countries and the so-called international community take center stage.”1 Scalia didn’t venture to explain why the Court adopted this order of priorities. Why would the majority in Roper proceed from the premise that “American law should conform to the laws of the rest of the world”? For Scalia, it was enough to identify the premise and reject it “out of hand.”2 Of course, it wasn’t his job to come up with any such theory. It is a pity that he didn’t because the accounts he gives of opponents’ positions are often more clearheaded than the accounts given by the opponents themselves. But in this case Scalia’s best view of what the justices in the majority were doing in Roper was that they were simply imposing their own subjective preferences about the juvenile death penalty and calling in support the views of “like-minded foreigners” to make that imposition look legally respectable.3 However, in another opinion, issued as a concurrence in quite a different case, Justice Scalia did offer a more substantial account of what he thinks his opponents might be up to in their use of foreign law. The case was Sosa v. Alvarez-Machain (2004),4 decided a year before Roper.5 Sosa dealt with a claim brought under the Alien Tort Statute. 6 A physician who was kidnapped from Mexico by persons working for the U.S. Drug Enforcement Agency sued under the Alien Tort Statute for damages arising from his unlawful arrest. The Alien Tort Statute, 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 24

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law of nations.” Alvarez-Machain argued that his kidnapping was just such a violation. He said it involved arbitrary detention, without benefit of legal process—an action that the laws of all nations condemn. Many people regard the Alien Tort Statute as an intriguing anomaly in the American system, allowing considerations extraneous to our law to influence the determination of certain lawsuits brought in the United States.7 But it is old and well-established, and from time to time it has been used to do some good work.8 Though not itself part of the U.S. Constitution, the statute that established it is in its origins sufficiently proximate to the founding and sufficiently secure in U.S. constitutional structure that it is unlikely to be repealed in the foreseeable future. What has happened, however, is that the federal courts have been very cautious about the “law of nations” grounds on which they are prepared to admit a claim under the Alien Tort Statute.9 In 2004 the Supreme Court rejected Alvarez-Machain’s claim for damages, holding that courts should be very cautious indeed about generating new causes of action under “the law of nations”: It is one thing for American courts to enforce constitutional limits on our own State and Federal Governments’ power, but quite another to consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent has transgressed those limits. . . . We have no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity. . . . These reasons argue for great caution in adapting the law of nations to private rights.10

The majority held that the Court should regard itself as having only very limited discretion to go beyond the causes of action listed in the discussion of the “law of nations” in Blackstone’s Commentaries dating back to 1763. The door, it said, “is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms.”11 But it decided that Alvarez-Machain’s complaint that his arbitrary arrest in Mexico violated the law of nations did not meet the high standard it was now insisting on applying. This expression of caution by the Court was not enough for Justice Scalia. He argued that the reference to the law of nations in the Alien Tort Statute cannot be read as giving federal judges any sort of discretion to embark on an inquiry into what is permitted and what is prohibited “in the world” analogous to the inquiries into “general common law” that were common in diversity cases until Erie Railroad v. Tompkins (1938). The Alien

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Tort Act, he said, must not be read as granting authority to embark on inquiries of that sort.12 Maybe it authorizes remedies for the particular abuses that the Framers of the statute of 1789 had in mind. But that, he thought, would be limited to the specific categories that William Blackstone mentioned when he discussed the law of nations in his Commentaries on the Laws of England (1763). The Framers—or the lawyers among them—would have been familiar with this book, and Blackstone’s discussion must have been what they had in mind when they empowered the federal courts to hear cases of this kind. Blackstone referred 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).”13 This was the original meaning of the law of nations. And 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 beyond what the Framers, following Blackstone, would have envisaged. At the end of his concurrence in Sosa, Justice Scalia added the following remark, which is what I want to focus on in considering his hostility to the citation of foreign law. It was a throwaway line that had nothing to do with the issue in Sosa. But I think it had everything to do with the issue that erupted a few months later in Roper v. Simmons. Justice Scalia said, The Framers who included reference to “the Law of Nations” in the Constitution would be . . . quite terrified by the “discretion” endorsed by the Court. . . . 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 humanrights 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.14

That last comment looks forward to cases like Roper that do not involve the Alien Tort Statute but do involve reference to the same sort of global legal consensus that is supposed to underlie the idea of the law of nations. Nobody in the Roper majority mentioned the law of nations. But I think Justice Scalia is right in thinking that that is the best interpretation of what they were trying to do. The point is not that they were using the Alien Tort Statute to address the juvenile death penalty. That would make no sense. But they were seeking implicitly to revive the idea of the law of nations, extend its influence within our legal system beyond the narrow scope of the Alien

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Tort Statute, and, in that broader influence, give it much more content than Justice Scalia and his colleagues were willing to grant even in that narrow sphere of its original application. I think Justice Scalia is right in thinking that this is the implicit theory behind the Court’s invocation of foreign law in cases like Roper. Or, if it is not their implicit theory, it is the best sense that can be made of what they were doing. I offer it to them as a reconstruction of what they were up to—a provocative and challenging reconstruction, no doubt, but one that casts some light on the underlying jurisprudence. I want to say that they thought the juvenile death penalty was condemned by something called the law of nations, and that this was a good reason—not a conclusive reason but a reason that would “confirm” the other reasons the court invoked—for saying that the U.S. Constitution must condemn it as well. That was exactly the sort of result that Justice Scalia expressed apprehension about (and that he said the Framers would be appalled by) in his concurrence in Sosa. He saw a similarity in the liberal strategy in two kinds of case: in both cases the strategy was to use an extended understanding of the law of nations to limit what could be done to people by national or state governments in America. Justice Scalia denounced that strategy. The justices who cited foreign law may be nervous about the ius gentium interpretation. But I want to defend it.

2. The Ambiguities of “the Law of Nations” Let me begin by saying what I mean by ius gentium (see sections 3 and 4 below for the history of the use of this term). “Ius gentium” translates as “the law of nations,” but “the law of nations” is a phrase riddled with ambiguity, and to make matters worse its meaning has changed over time, though not in any tidy way. It may seem perverse to introduce it into the discussion of Roper v. Simmons as an explanation of what the Court was up to in its reference to foreign law. An explanation should surely be less obscure than the explanandum! Still, you have to call it as you see it, and I want to argue that, for all its difficulty, the idea of the law of nations has an important role to play in characterizing this interplay between various legal systems. We must focus on two ambiguities in particular. The first ambiguity is between (1a) the law of nations as something roughly equivalent to international law and (1b) the law of nations as a body of law that mostly regulates relations within states between citizen and government or between private individuals. The second ambiguity is between (2a) the law of nations

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regarded as a body of positive law and (2b) the law of nations regarded as something akin to a moral idea—what legal philosophers call natural law. (I will say more about these ambiguities in the sections that follow: ambiguity (1) in section 3 and ambiguity (2) in section 5.) But let me put my cards on the table. Taken together, the two ambiguities give four possible combinations. The combination I will defend conjoins (1b) and (2a). The ius gentium, on my conception, is a body of positive law regulating relations within states particularly between citizen and government but also sometimes between private individuals. Its distinguishing feature is its commonality: the law of nations represents a sort of overlap between the positive laws of particular states, something they have in common. And the idea is that it has a claim on us by virtue of that commonality. (What that claim is actually based on is something I will discuss in general terms in chapter 3 and in detail in chapters 4 and 5.) I am going to use the term “ius gentium” rather than its rough English equivalent “the law of nations” to refer to this commonality understood in this combination of ways. The English term has resonances nowadays that drive us in the direction of (1a), which is not what I want. It has been suggested (by Ronald Dworkin, in conversation) that the term “the laws of nations” (laws, plural) might be a way of getting at what I mean here. It conveys the fact that we are dealing with the plurality of national laws (and some set-theoretic combination thereof) rather than with a single body of law that regulates nations in their sovereign capacity. But I want to consider the possibility that what emerges from “the laws of nations” is some singular entity—a body of law or a system of law, the law of nations—which can then be an object of reference from the point of view of any particular state. The terminology itself is not particularly important. Some scholars use the phrase “world law”15 or “global law”16 while courts have sometimes called it “universal law.”17 The expression “common law” (sometimes ius commune) is also used, quite naturally, to describe something that is supposed to be law common to what are otherwise independent jurisdictions. In the United States, there was once a quite specific use of the phrases “federal common law” and “general common law,” meaning a body of law that could be applied by federal courts in diversity cases, even though it had not itself been laid down as law by any state authority. The case Swift v. Tyson (1842) concerned the application of New York’s law of consideration to the endorsement of a negotiable instrument.18 The Supreme Court said, in the opinion of Justice Story, that “the true interpretation and effect of [contracts and other commercial instruments] are to be sought, not in the decisions of

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the local tribunals, but in the general principles and doctrines of commercial jurisprudence,” and it invoked an opinion by Lord Mansfield, in an English admiralty case, which in turn quoted an ancient observation by Cicero about the general, worldwide applicability of the law he was applying (and developing): “Non erit alia lex Romae, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit (And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times).”19 This is what Justice Scalia was referring to (and disparaging) when he said that the decision of 1938 in Erie Railroad v. Tompkins had closed down the kind of free-floating inquiry into the general principles of law he thought was happening in Sosa v. Alvarez-Machain. But as we shall see (in chapter 3), it is possible to give the Erie decision its due as a precedent but still leave untouched certain broader ideas about common or universal law that are not necessarily affected by its holding.

3. The Law of Nations and International Law Now for some detail. Let us look again at ambiguity (1): the law of nations has been understood as (a) something roughly equivalent to what we now call international law; it has also been understood as (b) a body of law that mostly regulates relations between citizen and government or between private individuals within states. Though it is not my usage, the most obvious understanding of the phrase “the law of nations” seems to be (a), the meaning that identifies it with “international law.” According to this account, the law of nations is the law that regulates relations between sovereign states. It is the wellknown body of law governing treaties, conventions, territories, boundaries, war making, and trade. It includes customary international law and the general principles (such as pacta sunt servanda) that are recognized as the building blocks of the international system. Jeremy Bentham suggested this equivalence in 1789; indeed, he claimed to have invented the term “international jurisprudence” precisely because he thought “law of nations” might convey a misleading suggestion that it included elements of the internal law of each sovereign state.20 He defended his stipulation by a process of elimination. Either “the law of nations” meant international law in the sense of “mutual transactions between sovereigns as such,” or it meant the law of private mercantile and maritime transactions, or it meant natural law. Of these possible meanings, Bentham did not consider natural law to be law, and he thought mercantile transactions were

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already covered by municipal law. In his opinion that left only international law to give meaning to the phrase. In fact, barring the terminology, the international use of the term “law of nations” that Bentham claimed to have pioneered was already well established in the eighteenth century. Emer de Vattel began his great treatise on international law by declaring, “the Law of Nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.”21 But the overlap between ius gentium and ius inter gentes—international law—was never quite complete. As we will see, there were always residual connotations of ius gentium that allowed it also to capture issues that were not just matters between sovereigns. And anyway the distinction between international law and domestic law was much less crisp at the time Vattel and Bentham were writing, around the time of the founding of the United States, than it was in the middle of the twentieth century,22 and it has become less crisp again with the emergence of human rights law. In any case, the law of nations could not just have meant international law in the usage of the American Framers, at least not if we are to make sense of what the first U.S. Congress was doing in the Alien Tort Statute. That statute allowed federal courts to entertain “any civil action by an alien for a tort only, committed in violation of the law of nations.” Civil actions for tort are brought by individuals, usually against other individuals, and that is not the subject matter of international law, either now or when Bentham and Vattel were writing. Not only that, but article 1, clause 8 of the U.S. Constitution gives Congress power to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations,” and that too seems to be a matter of law bearing down on individuals rather than on sovereigns. Those who defend the alleged equivalence between international law and the law of nations acknowledge that even in the eighteenth century international law included some provisions that afforded rights to ordinary individuals or imposed duties upon them. The legal duty to refrain from offenses like piracy is one example. Though it was condemned as a capital offense by the criminal law of each nation, it could also be viewed as an international matter, since it took place on the high seas and threatened exactly the commerce between nations that it was one of the functions of international law to uphold. Blackstone seems to have held that view. He observed in 1765 that since “the crime of piracy, or robbery and depredation upon the high seas, is an offense against the universal law of society,” a pirate must be regarded as hostis humanis generis—the common enemy of

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mankind. Though a pirate apprehended by an English ship is hanged according to the law of England, what happens in this case is that “the statute law of England interposes, to aid and enforce the law of nations, as a part of the common law: by inflicting an adequate punishment upon offences against that universal law, committed by private persons.”23 And he says there are other, similar offenses. An attack on an ambassador is, from one point of view, a crime or a tort committed by one individual against another and thus is properly dealt with by the criminal law or the law of torts or delict of the state in which it takes place. But it is also a crime against the international order, which requires that the person and property of ambassadors should be inviolate so that they can do the job that international law requires of them. And there may be similar protection for a merchant passing through a realm with a guarantee of safe conduct or sojourning for a time in foreign land. These are all cases in which traditional international law has, as it were, an individualistic spinoff so that it makes sense to talk of the law of nations upholding the rights and enforcing the duties of individuals.24 Today, of course, international law has much more of an impact on individuals than it had in the days of Blackstone. International human rights law confers all sorts of rights upon individuals, and it defines all sorts of offenses against them. (It also defines offenses that individuals are capable of committing, for example, in the statute establishing the International Criminal Court.) I mentioned (in note 8) the case of Filártiga v. Peña-Irala (1980), in which a former Paraguayan police chief living in the United States on a tourist visa faced a tort action in New York for ten million dollars brought by the relatives of a young man whose torture and murder he had supervised in Paraguay.25 The Second Circuit was unanimous in its recognition that the Alien Tort Statute covered the case: In light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice), we find that an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations. . . . Indeed, for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.

The link with international law is clear in this case. But it is interesting that the integrity of the international order is not at stake in Filártiga as it is in the case of the ambassador and the pirate. In those cases, the offender is

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attacking the very fabric of international order, by interfering with shipping and diplomacy. In the case of the torturer, the offence does not undermine international order as such. Its connection with international order is simply a matter of the content of international human rights norms. But there is also the element of universality, or near-universality: “the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice).” And that points us to the second understanding of the law of nations, an understanding based on commonality as between the internal laws of each and every state rather than on any appeal to the body of law that regulates relations between sovereigns. I said that I favored conception (b) of the law of nations: the alternative that does not identify it simply with international law. After all, I am invoking it to explain the influence of foreign law in certain internal decisions within the United States, a decision about the application of the death penalty for a vicious murder in Missouri and a decision about a Texan sodomy law. I am using it also to explain the common practice in Commonwealth countries of referring to each other’s laws and precedents on issues like evidence in criminal trials or the treatment of prisoners or the privity of contract in negligence cases.26 I think of ius gentium as a body of world law that helps particular legal systems dispose of certain difficult problems within their own jurisdiction or problems that, though internal, require some dimension of harmonization with other jurisdictions. Though it is important to distinguish ius gentium as I shall refer to it from international law properly so-called, still there is a resonance of internationalism in ius gentium. This is part of the global commonality that is its characteristic. But also it is because one of its most important manifestations is in international human rights law, particularly as that is associated with a sort of overlap between the fundamental rights provisions of national constitutions and bills and charters of rights. Suppose there were no international human rights law, but everything else was the same: it would still be evident that there is a substantial commonality among the fundamental rights protected in most advanced democracies. Everywhere there is protection for free speech and for religious freedom; there is protection against arbitrary arrest; there are guarantees of fair trials and prohibitions on inhuman punishments; and so on. The protections and guarantees are certainly not the same in all countries, but there is substantial similarity in the fundamental principles that are appealed to. Countries copy one another’s constitutions, and they draw down anyway on the same stock of universal moral ideals. What international human rights law adds to this is a common point of legal reference for all countries as well as a positive

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requirement that they must embody the rights set out in international instruments within their national law.27 There is what Harold Koh refers to as a process of “institutional interaction, interpretation of legal norms, and attempts to internalize those norms into domestic legal systems.”28 In this regard, then, the commonality among the laws of nation-states that I call the ius gentium does sometimes have an international law dimension. True, ius gentium is not only about human rights. But even in areas of commercial law and property law it often flourishes because of a transnational dimension, because of its ability to facilitate international commerce and trade.

4. The Origins of Ius Gentium I have used a second-century Roman law idea as the motto of this book: Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum jure utuntur (All peoples, who are ruled by laws and customs, use partly their own laws and partly laws common to all mankind to govern themselves). The author of the Institutes identifies the “laws common to all mankind” as the ius gentium, “quasi quo iure omnes gentes utuntur, because it is common to every nation.”29 But the meaning of ius gentium in the Institutes was not its original meaning. Starting around 242 B.C.E., “ius gentium” seems to have been the term used to refer to a technical jurisprudence developing in Rome to address the legal position of foreigners living in the city. As a matter of their status as noncitizens, such people did not have the benefit of Roman law itself (ius civile). As Barry Nicholas points out, “From the ordinary ancient principle that law was ’personal’ it followed that a non-citizen, a foreigner (peregrinus), had no rights under the specifically Roman ius civile.30 So what was to be done to settle disputes in the city among foreigners? “The expedient to which [the Romans] resorted was that of selecting the rules of law common to Rome and to the different Italian communities in which the immigrants were born. . . . [T]hey set themselves to form a system . . . [that] was, in fact, the sum of the common ingredients in the customs of the old Italian tribes, for they were all the nations whom the Romans had the means of observing, and who sent successive swarms of immigrants to Roman soil.”31 The old Roman jurists called this body of rules ius gentium, which they understood as law common to all nations (or at least all the nations with substantial numbers of immigrants in Rome) administered by an official called the praetor peregrinus.32 This aspect of ius gentium continues to have some resonance in the quasi-international categories of its modern use, for example,

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in issues about ambassadors and so forth,33 in its association with the law merchant,34 and, some have argued, in the relevance of the law of nations to issues of migration and multiculturalism.35 Some have argued that it was not really a commonality idea at all, at least in its original use, but simply an attenuated version of the ius civile made available for use by foreigners.36 I take no position on this, though I think it is possible that the peregrine praetor did sometimes have to improvise and, to a certain extent, invent a hypothetical common law for the benefit of foreigners.37 Understood as a way of dealing with the problem of noncitizens in the city, ius gentium “gained importance as Rome became more international and then waned in relevance as citizenship was comprehensively granted to peoples within the Empire” around 212 C.E.38 At its inception, the Romans had no particular respect for this body of law. They certainly did not think of it as capturing anything like the essence of law, but merely as an expedient to deal with a difficult situation arising out of Rome’s cosmopolitan attraction to foreigners. (If anything, it represented something quite unpleasant, indicating the limits of the Roman theory of legal equality.)39 Gradually, however, ius gentium grew to become something more than just an expedient for immigrants. On the one hand, those who studied it couldn’t help but pay attention to the significance of the commonalities that did actually exist between the laws of the different peoples represented in Rome in immigrant and mercantile communities. Just as fire burns in Persia as well as in Greece, so fraud is wrong both in Athens and in Persepolis, and wrong too among Greek and Persian merchants dealing with one another in the Roman marketplace. In this way, ius gentium afforded an obvious site for natural law speculation. On the other hand, ius gentium also made itself available for other uses. In its rudimentary and uncluttered character as much as in its speculative association with natural law, ius gentium took on a role similar to that of equity in later jurisprudence—even for disputes among Roman citizens—a method of cutting through layers of local technicalities and idiosyncrasies to get at the essence of justice.40 As such, it came to be seen as an additional body of law that could correct and supplement the ius civile on its home ground. Both bodies of law might be used in a single case. In these two ways, ius gentium became associated with the earthly realization of the Greek idea of natural law (ius naturale) and began to be regarded as, in Henry Maine’s words, “a great though as yet imperfectly developed model to which all law ought as far as possible to conform.”41 Greek philosophy began to influence its spirit and rationale as much as, or

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more than, Greek laws and customs influenced its content.42 In this way it found a role for itself in Roman jurisprudence after the reforms of 212 C.E., conferring Roman citizenship upon almost all free citizens of the empire, made its original use redundant. It found a role for itself—a role immortalized in the words from the Institutes I have used for the motto of this book.43

5. Ius Gentium and Ius Naturale The second ambiguity I listed in section 2 was that between the law of nations conceived as a body of positive law and the law of nations conceived as something more like a moral ideal, something akin to what legal philosophers call natural law or ius naturale. Either of these options could combine with the international law alternative in the first ambiguity. The law of nations could be the positive law governing relations between sovereigns or the natural law principles that governed those relations (and set standards for positive law in the area). Blackstone seemed to adopt both options when he defined the law of nations as “a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world; in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith in that intercourse which must frequently occur between two or more independent states.”44 Equally, either (or both?) of the positive law/natural law options could combine with the alternative (from the first ambiguity) that identified the law of nations with a common law regarding matters internal to particular states. For example, the principle of the law of nations forbidding the juvenile death penalty might be seen as a moral or natural law standard extrapolated from the common practice of humankind (in some yet-to-be-specified passage from “is” to “ought”), or it could be seen as simply a positive law principle belonging to a body of principles established as law by global consensus. I have said that I favor the second of these options—ius gentium as positive law—but the history of its entanglement with natural law thinking is inescapable and instructive. By the way, saying that ius gentium is a body of positive law is not necessarily the same as submitting it to the demands of the legal ideology called positivism. I shall argue—again in chapter 3—that the best set of tools for understanding the norms that ius gentium comprises are tools developed by the leading nonpositivist legal philosopher of modern times, Ronald Dworkin. I believe that ius gentium consists of a body of principles, discerned interpretively from the commonalities that exist among the

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positive laws of various countries, by a legal sensibility that is both lawyerly and moralized. If Dworkin is correct—and I think he is—we need these tools to understand even the most domesticated legal materials, the law of a single state, whether statute law, case law, or a combination of both.45 But if we need them there, we should not be shy about invoking them at the global level as well. Let us go back to the ancient entanglement of ius gentium and ius naturale. Considered simply as law for foreigners in Rome, the ius gentium was always conceived as positive law, and a rather rudimentary form of positive law at that. But we saw at the end of section 4 how it took on natural law overtones through its additional use as something like principles of equity and through its inherent association with the idea of universality. Gradually ius gentium became associated with Greek ideas about natural law, understood, in the words of Cicero, as “right reason in agreement with nature[,] . . . of universal application, unchanging and everlasting.”46 As Maine put it, “From an ignoble appendage of the jus civile, the jus gentium came to be considered a great though as yet imperfectly developed model to which all law ought as far as possible conform.”47 By Justinian’s time, it had acquired this much more extended meaning, and it held that extended meaning for a thousand years or more. The author of the Institutes both distinguished and blurred the distinction between natural law and laws common to all mankind. Sometimes he made it clear that ius gentium is positive law and may even contradict ius naturale: “The law of nations is common to the whole human race; for nations have settled certain things for themselves as occasion and the necessities of human life required. For instance, wars arose, and then followed captivity and slavery, which are contrary to the law of nature; for by the law of nature all men from the beginning were born free.”48 At other times he spoke of the ius gentium or of the ius naturale in ways that indicated he was identifying the two of them. He spoke, for example, of “the laws of nature, which are observed by all nations alike” and of the law of nations as “being the product of human nature itself.”49 Later authors like Ulpian blurred the distinction still further by suggesting that the distinction between ius naturale and ius gentium was that of genus and species—ius naturale being that which nature teaches all animals (such as “the union of male and female, which we call marriage; hence the procreation and rearing of children, for this is a law in the knowledge of which we see even the lower animals taking pleasures”), while ius gentium was what nature had taught humankind, relative to the specific circumstances of human life. “Ius gentium,” said Ulpian, “is common to the whole human race. For under compelling use and

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human necessities, the peoples of mankind have instituted certain things.”50 Yet at the same time Ulpian acknowledged that ius gentium might comprise nonnatural arrangements like slavery, simply because they were shared as a matter of positive law among all the nations of the earth.51 What are we to make of all this? A millennium and a half after Ulpian, John Austin offered the following observations in The Province of Jurisprudence Determined: “The universal leges et mores . . . described by Gaius, and distinguished from the leges et mores peculiar to a particular nation, are styled indifferently, by most of the classical jurists, jus gentium, jus naturale, or jus naturale et gentium.”52 Austin took a charitable view of this intimate connection between ius gentium and ius naturale. Ius gentium, he said, means those positive laws and those rules of positive morality, which are not peculiar or appropriate to any nation or age, but obtain, or are thought to obtain, in all nations and ages: and which, by reason of their obtaining in all nations and ages, are supposed to be formed or fashioned on the law of God or Nature as known by the moral sense. . . . And the law of nature, as thus understood, is not intrinsically absurd. For as some of the dictates of utility are always and everywhere the same, and are also so plain and glaring that they hardly admit of mistake, there are legal and moral rules which are nearly or quite universal, and the expediency of which must be seen by merely natural reason, or by reason without the lights of extensive experience and observation.53

There would be “little objection” to these ideas, he said, if the natural law aspect of the ius gentium “were not supposed to be the offspring of a moral instinct or sense, or of innate practical principles. But, since it is closely allied . . . to that misleading and pernicious jargon, it ought to be expelled, with the natural law of the moderns, from the sciences of jurisprudence and morality.”54 Leaving moral epistemology aside, Austin’s account of the association between the two ideas is very helpful. One might expect that the obviousness of certain moral principles or, for Austin, of certain theorems of utility would be reflected in their ubiquitous adoption as laws in the world. And the universality of certain customs might suggest, though the suggestion would not be conclusive, some underlying moral principle. These two associations would naturally give rise to the possibility that ius gentium might operate normatively and critically, as modern conceptions of natural law are supposed to operate, though it is worth adding that in ancient jurisprudence certainly and in much early modern jurisprudence natural law was not just a prescriptive moral ideal but a phenomenon to be investigated, like any other idea about nature.

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The conflation of the two ideas has never really been resolved, and a case can be made that more unclarity would result from its stipulative resolution than from soldiering on with a compound ambivalent notion. On any account, ius gentium always had a normative dimension, at least after it took flight from the immediate context of the laws administered by the praetor peregrinus. It could be used not only as a source of moral insight but also to criticize existing arrangements either within the ius civile or in the laws of other peoples. And ius naturale, in mature Roman law, in medieval Christian doctrine, and in early modern jurisprudence, was never just abstract objectivity, an object of speculative armchair inquiry, in the way that a modern moral philosopher would understand it. It was always something hunted for in the world, even while those who hunted for it were well aware that no positive legal reality was self-certifying for the normative role associated with ius naturale. What one gets, then, from sampling jurisprudential opinion throughout this era is not a simple choice between a positivistic and a natural law conception of the ius gentium, but a difference of emphasis in the way the compound notion was conceived and put to work. So, for example, Thomas Aquinas wrote that the law of nations is “derived from the natural law in the manner of a conclusion that is not greatly remote from its first principles.”55 His idea was that natural law might furnish the very basic premises of a normative account; but ius gentium embodied a set of enduring intermediate principles that one might use as touchstones for actually existing legal systems.56 On this account, the distance of ius gentium principles from the abstractions of pure ius naturale and their proximity to the positive laws found in most actually existing societies is a matter of their formulation, their orientation to real-world topics, not of their taking on a positive law character. They deal not just with humanity as such but also with “man, rational, wise, and fully involved with other men,” in other words, the situation of “men as congregated in some human society.”57 They address humans’ “second nature.”58 But they do so in the moral mode. At the same time, Aquinas and his followers acknowledged that ius gentium could also be understood as positive law. “It belongs to the notion of human law, to be derived from the law of nature.” In this respect positive law can be divided into the “law of nations” and “civil law,” according to “the two ways in which something may be derived from the law of nature.” On this account, the law of nations is the application of these intermediate principles by the lawmakers of the world, and the civil law is the response of a given lawmaker to the needs and circumstances of a particular society.

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Francisco de Vitoria is famous for having insisted on this positive law approach, maintaining that ius gentium “has the validity of a positive enactment” on the part of the whole world considered as a commonwealth.59 What one does not get from Aquinas or his followers, however, is any sense that the ius gentium might be arrived at inductively, from a survey of the legal systems of the world, rather than deductively in terms of the application of intermediate principles of natural law. But the Renaissance humanists did take something like that approach. Some of them were inclined to doubt whether nature could even be thought to supply laws— “ius is only to be found among men, in the form of the ius gentium or the ius civile”60—and the only way to find out what these laws were, even general laws supposedly common to all mankind, was to go and look at what had been decreed. They did not see pure philosophical thinking, even philosophical thinking oriented along Aquinas’s lines toward intermediate principles, as a source of genuine legal insight. Whatever was useful in the tradition of ius naturale was to be brought down to earth from the lofty heights of philosophical speculation and focused on the sensible reality of what humans had constructed for themselves. To be sure, ius gentium retained a tinge of the natural and a tinge of the moral, even on this humanist perspective, and it never entirely lost the aspect of a priori as well as positivist inquiry. But the part of the heritage of Gaius that leavened abstract reasoning with the human aspect and with knowledge of positive law was prominent in Renaissance jurisprudence.61 I have distinguished ius gentium from what is now called international law. However, the way in which the early international lawyers and theorists of just war dealt with the interface between positive law and natural law is also revealing. Alberico Gentili, writing about questions of war and peace at the end of the sixteenth century, began with an identification of the law of nature with the law of nations: “The law of nations is that which is in use among all the nations of men, which native reason has established among all human beings, and which is equally observed by all mankind.”62 But he quickly made it clear that to investigate the law of nations / law of nature one must engage in the essentially humanistic rather than philosophical exercise of finding out about the laws and customs that are in use among all nations; one asks traders, for example, for stories about foreign lands.63 One needs to find out about the laws and customs that experience indicates have seemed acceptable to most nations and that have established themselves in the world successively, nation by nation, seeming acceptable to most people. That is plainly a historical and empirical matter, and Gentili draws freely on histories both ancient and contemporary.64

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Even so, the element of philosophical and moral inquiry is never entirely absent: it is mixed in with the survey of positive law. So, for example, in the opening paragraph of his chapter “Of Those Who Surrender to the Enemy,” Gentili constructs what we would call a pure natural law argument for the rights of captives who surrender, based on something like a principle of tacit promise; he also produces a natural law argument for dismissing any distinction between voluntary and involuntary surrender. But he goes on to bolster these arguments with historical evidence.65 Not only that, but he sometimes cites human practice in order to show what moral principles require, citing, for example, the deeds of men of proven moral repute.66 With this last idea, that is, good repute, practice builds upon practice. We cite the examples of certain people, and then we also cite what the rest of humankind thinks of such people, their repute. We may be aware in such cases that no amount of ramifying practice converts an “is” (practice and repute) into an “ought” (moral law); but we acknowledge that in the circumstances of human life this may be all we have to go on. And in the end we find Gentili stating that “a decision has greater weight which is supported by the opinions of a large number of men.”67 A modern philosopher might insist that we should rely on our own normative reasoning before we invest this much in the facts of human consensus; but Gentili may be wiser here in the sense he conveys that there is no guarantee that the philosopher’s normative reasoning is an any less fallible guide to the objective truths of natural law than the evidence of human practice, supported and ramified in this way. Of course, practice validated by repute may in the end turn out to be vicious. But the same is true of direct normative reasoning: “Many are led not so much by reason as by fantasy.”68 The fact that normative reasoning purports to have a direct rather than an evidential relation to the truth does not show that it is more reliable. If this is true of Gentili on war, it seems to me that it is likely to be true also of ius gentium in my broader application of the idea. Though it lifts us out of the positivist perspective of a particular legal system, it does not inevitably take off in the direction of pure moral philosophy, which is what we are inclined to associate with natural law. It may alloy itself with elements of natural law inquiry, but those in their turn will reflect, in large part, a sense of what has happened down here among the nations of the earth.

6. Foreign Law and Natural Law in the Modern Debate I have gone on at length about this antiquated ambivalence as between ius gentium and ius naturale because a number of modern American

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commentators have asserted that the Supreme Court’s recent use of foreign law in Lawrence v. Texas and in Roper v. Simmons is best understood in natural law terms. Richard Posner says that the citation of foreign decisions “marks Justice Kennedy . . . as a natural lawyer. The basic idea of natural law is that there are universal principles of law that inform—and constrain—positive law. If they are indeed universal, they should be visible in foreign legal systems and so it is ‘natural’ to look to the decisions of foreign courts for evidence of universality.”69 Eric Engle says that the Court “does not admit to invoking the idea of natural law, but that is what it is doing.”70 And Roger Alford, like Posner an opponent of the use of foreign law, says that “natural law is perhaps the most coherent rationale for recognizing the validity of comparative analysis in constitutional adjudication.”71 He thinks the implicit appeals to universalism and fundamentality have to be grounded in that theory. I think this is a mistaken interpretation. I am not even sure how the connection between natural law and the citation of foreign law is supposed to work.72 Joan Larsen associates the invocation of foreign law with “moral fact-finding.”73 But the Court in Roper and in Lawrence appeared to be already in possession of the moral facts—or at least the moral convictions it relied on—quite apart from its appeal to foreign law. When Engle says that the Supreme Court is looking for universal standards to be discovered in the law of foreign nations “out there,” he implies some sort of correspondence between the out there of the wider world of foreign legal systems and the out there of moral objectivity.74 But what is that correspondence supposed to consist in? Objectivity by consensus? According to modern natural lawyers, courts are required to make judgments about moral facts in a spirit of objectivity as part and parcel of figuring out what the law is.75 Judges ask questions about justice and rights in a spirit of objectivity; they may get the answers wrong, but they aspire to be right, and they accept that their judgments are answerable to the moral facts. But if this is what natural law adjudication involves, then the citation of foreign law seems mysterious: why would one defer to other people’s answers to these moral questions, let alone the answers of Frenchmen or Zimbabweans? Why not just ask and answer the moral questions oneself? Of course as an individual one might get the answers wrong, objectively, but so too might the foreign judges whose decisions we invoke. All that natural law guarantees is that there is a right moral answer: it doesn’t guarantee that any existing consensus embodies it. (I will return to this point in chapter 5, in my discussion about the value of global consistency.)

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However, this may pose more of a problem for modern natural law philosophy than for the natural law tradition. Natural law jurisprudence never used to be a matter of individuals just inserting their own moral judgments into legal reasoning, any more than natural science was ever just a matter of idiosyncratic observations about energy or gravity. In both instances the goal was the accumulation of knowledge, not just the validation of individual intuitions. No one in the modern world would take seriously novel claims about energy or gravity that did not refer to the work of the scientific community at large. It is harder for us, however, to imagine something similar for our moral thinking about rights or justice, accustomed as we are to the privileges of the individual conscience. Yet this is exactly what ius gentium provided—the accumulated wisdom of the world on rights and justice. The knowledge is accumulated not from the musings of philosophers in their attics but from the decisions of judges and lawmakers grappling with real problems. And it was accumulated not only in the crude sense of one thing adding to another, but also in the sense of overlap, duplication, mutual elaboration, and the checking and rechecking of results that are characteristic of true science. Ius gentium, conceived in this way, is no guarantor of truth: a consensus in either the law or the natural sciences can be wrong. In neither field, however, is there a sensible alternative to paying attention to the established body of findings to which others have contributed over the years. It is tempting to say that whenever we move away from the positive law of a particular country and postulate some sort of universal, overarching jurisprudence, we must be invoking natural law. Our impulse in analytic legal philosophy is to sharply separate law and morality, that is, to set up a high wall of separation between our concept of existing law and whatever moral idea, like natural law, we use for evaluating legal arrangements. The one is positive, and it exists on the ground as a social fact about power and practice. The other is notional and transcendent and lives in the realm of value, abstract principle, and the operation of critical reason. This separation of law and morality has been the bread and butter—in my view, the rather stale and rancid bread and butter—of jurisprudence since the time of Bentham. And since we associate positive law most naturally with power and practice in the context of single, well-organized political communities, there is a tendency also to think that by moving outside those bounds we must be moving in the direction of natural law So, for example, when the Nuremberg tribunal refused to decline jurisdiction over crimes against humanity merely because there was no German law regarding them at the time the genocide was committed, everyone said

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this represented the resurrection of natural law. 76 And people got very excited about that. Whereas in fact what was relied on at Nuremberg and also in the trial of Adolf Eichmann in Israel in 1961 was not natural law in the sense of transcendent moral truth, but something like the concept I am referring to: ius gentium, universal law, law that has a positive existence among the nations, despite its not being law particular to Nazi Germany. As Attorney General Gideon Hausner said in Jerusalem in his response to the defendant’s preliminary objection in the Eichmann trial, “Nazi Germany abused the sacred principles of the maintenance of law . . . and by . . . a series of unprecedented crimes created a vacuum, a legal chaos, an abdication of the law. . . . Against the legal vacuum . . . mankind employed new legal principles, or more correctly—gave expression to those principles which had been entrenched and rendered sacred and which had become the heritage of all civilized peoples.”77 Hausner is talking here not just about moral principles, not just about God’s principles, but principles which had their own positivity right here on earth—principles already entrenched which had become, or were all along, “the heritage of all civilized peoples,” even if the Nazis had sought to repudiate them. That is exactly an instance of the concept I am trying to get at in this book: ius gentium, laws common to all mankind—a positive law conception, not a concept of pure natural law—a brooding omnipresence on the ground.78

7. Ius Gentium as Common Law After 1600 the ius gentium continued to be invoked by jurists, almost always attended by the ambiguous relation to natural law and sometimes festooned with technical terminology to mark this ambivalence: ius gentium primarium versus ius gentium positivum vel secondarium naturale, and so on.79 The life of this body of law, however, was experience as much as word-chopping logic. A by-product of world empire, ius gentium was, as Donald Kelley has described it, “an unfinished monument. . . . [a]ssembled from proto-anthropological observations made in the course of military and commercial contracts with ‘barbarians’ around the Mediterranean, . . . an open and expanding system of international and comparative law whose career not only paralleled that of the empire, but outlasted it.”80 Ironically, in light of its origins in the law of the praetor peregrinus for foreigners at Rome, ius gentium came to be identified as law to be used in the farthest reaches of the empire, where the ius civile was not necessarily available. And where the later reception of civil law in Europe was incomplete or needed to be

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supplemented, ius gentium was available as a category to describe the commonality and lawfulness of what resulted. As such, it began to accommodate customs shared by peoples beyond any imagined by the Romans81— shared as between Europeans and native Americans, for example—while retaining the sense that something common and predictable and intelligible happened when humans, any humans, gathered together in society and attempted to order their relations. Some writers have identified ius gentium with ius commune,82 a term used to refer to “the learned law of the European Continent that combined secular and canon law and transcended boundaries and local statutes” and that throughout the later medieval and early modern and modern periods formed a major part of the law that courts would draw on in almost every European nation.83 In fact, ius commune (common law) did not mean exactly the same thing as ius gentium; ius commune sometimes meant Roman law itself to the extent that the ius civile was something that various European jurisdictions shared as a legal resource.84 But the two ideas were close. And to the extent that all or most European jurisdictions used a lot of Roman law but not necessarily all of it as an integral system, to the extent that one would have to identify which elements of classic Roman law were still accepted by most countries and alloyed with particular local or national elements—to that extent the terms “ius gentium” and “ius commune” might be used interchangeably. There is also another confusion. The expression “common law” and its various European equivalents also sometimes conveyed the sense of the legal unification of a variety of local customs, as in England.85 The English common law was not the European ius commune applied across the Channel, but something peculiarly English; it was unified out of the customs that were peculiarly the customs of Lincolnshire or Essex or London or Derbyshire. It was in this sense that an anonymous Scottish jurist, writing at the beginning of the seventeenth century, said, “There is noe common lawe in Scotland” but went on to explain: “The Judge eyther proceedeth accordinge to warrant of the municypall lawe, which is the statutes of Parliament, and that faylinge they have recourse to the ymperiall civill lawe. Albeyt there be many conclusions as verie Axioms never contraverted uppon, as particulerly in matters of discent and succession of Landes and such other thinges, whereuppon the Judges doe proceede havinge noe particuler warrant for the same but in all former ages havinge bene acknowledged as infallible and allowed customes and consuetudes.”86 The amalgam of Roman law and things that “in all former ages havinge bene acknowledged as infallible”—that was what ius commune meant, in

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contrast to anything like English common law. Having said that, I add that there is also a sense that, subsequent to its early development in England, English common law has itself become a worldwide heritage, so that in 1948 a judge who later became the chief justice of Australia could write, “Diversity in the development of the common law seems to me an evil.”87 Another concept closely associated with ius gentium and, for that matter, with ius commune is the lex mercatoria, the body of mercantile law, which, like the other two, was not the law of any country in particular so far as provenance was concerned. Mercantile law, or the law of international trade, may be understood as the commercial law of municipal legal systems projected out to cover transactions involving parties beyond one’s borders; or it can be understood as a body of customs which have evolved along the trade routes between societies, not established by any sovereign and only partly incorporated by local princes or local communities into their municipal law.88 In the Middle Ages, “usage and practice became a portable law that merchants carried with them from town to town.” They carried their law, as it were, “in the same consignment as their goods, and both law and goods remained in the places where they traded and became part of the general stock of the country.”89 Richard Epstein, in an attempt (a largely successful attempt) to revive modern interest in the lex mercatoria as a body of nonstate commercial law, has emphasized its ius gentium origins,90 particularly the characteristic of ius gentium that enables it to work in tandem with local customs: partim suo proprio, partim communi omnium hominum jure.91 Like many defenders of law and economics, Epstein is interested in nonstate modes of legal governance and in customary law alternatives to centralized legal imposition.92 Some historians have questioned whether the lex mercatoria arose out of ius gentium or whether it is better regarded as a set of autonomous customs among merchants. After all, custom has long been regarded as an independent source of law.93 Still, an English court eschewed the customary model in 1691 and simply took for granted the identity of lex mercatoria and ius gentium.94 Probably the question is too fine to decide anyway, since ius gentium was undoubtedly based on custom, albeit on what customs around the Mediterranean seemed to have in common. I said in section 2 of this chapter that terminology is less important than the broader idea of a society being governed in part by norms drawn from the wider world. One of the reasons we should not be hung up on terminology is that jurists use the ideas I have been considering—ius civile, ius naturale, ius commune, lex mercatoria—analogically and metaphorically to cast light on emerging legal phenomena in the world that cannot

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and should not be characterized reductively in the categories of modern sovereignty.95 They use “ius commune” to illuminate the emerging character of European (EU) law.96 Some jurists use “ius commune” to characterize the emerging global law of human rights,97 while others use “ius gentium” for that task.98 They use “lex mercatoria” to describe the “Principles of International Commercial Contracts” produced in 1994 by the International Institute for the Unification of Private Law (UNIDROIT) in Rome.99 A quick survey of modern scholarship reveals that ius gentium is believed to afford a useful framework for thinking about such topics as data protection,100 antitrust,101 and copyright law in the world.102 And even in strictly domestic cases—for example, American state cases involving no diversity or transnational element at all—we see something like ius gentium or ius commune, at any rate what the court calls “principles of universal law,” being appealed to as a basis for solving an otherwise intractable problem.103 There is enough here to keep the purists of legal history huffing and puffing for decades about the ignorant misuses and exploitation of the categories that are precious to them. I have tried in this chapter to pay my respects to this community, by carefully identifying each term—ius commune, lex mercatoria, and ius gentium—and saying something about its history. In the end, though, all of that matters less for the purposes of my argument in this book than for conveying an impression of the depth, complexity, and plurality of ways in which our legal civilization has come to terms with the idea of law simply existing in the world, law-in-the-world as something that particular legal systems can draw down from. If opponents of the invocation of foreign law in American constitutional cases want to pretend that this is an outrageous newfangled departure from an immemorially relativist understanding of law as deriving solely from a particular sovereign, then they can be shown to be wrong. In every country much law is created locally by legislators, judges, and constitution framers. But not all of it is, and jurisprudence has always tried to understand the part that isn’t. It doesn’t follow that the use of foreign law in American constitutional cases is legitimate; but the exploration undertaken in this chapter gives us some categories with which to characterize this practice in the event we can establish legitimacy for it on the grounds explored in chapters 4 and 5, and in the event we can answer various challenges to its legitimacy, as I attempt to do in chapter 6. I have appealed to the idea of ius gentium as a particular vehicle for conveying these possibilities, despite the ambiguity arising from its use also specifically to describe international law, which I considered in sections 2

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and 3. Ius gentium began modestly enough in the office of the praetor peregrinus in Rome. But for almost two thousand years it was thought to comprise something like the common law of mankind on legal issues generally—on contracts, property, crime, delict, and government. It was understood as a set of principles whose authority stemmed from the fact that they had established themselves as a normative consensus on the topics they addressed among lawmakers, judges, and jurists around the world. I do not mean an intellectual consensus of the sort one might find among moral philosophers or pure natural lawyers or even among comparativists, uninterested in the practical significance of the commonalities they discover. The ius gentium consensus was derived from these principles’ having become established in practice and on the ground as actual legal arrangements all over the known civilized world. It was a consensus that could be used, not just studied, and it forms, in my opinion, a natural model—indeed, a flattering model—to describe what is going on when judges in one country draw on the experience of judges and lawmakers elsewhere.

CHAPTER THREE

A Body of Legal Principles

1. Consensus as Law The practice of invoking foreign law can be understood in two ways. In the first and most straightforward way, we, in country A, refer to and rely on the law of country B for some insight, principle, or doctrine; for other insights, principles, and doctrines we refer to the laws of country C; and for still others we refer to country D. We do it one jurisdiction at a time, and we justify it (or criticize it) one jurisdiction at a time. I think a lot of critics in the United States presuppose that this is the approach being taken by our courts. For example, they react to it piecemeal, as though the U.S. Supreme Court had cited British law while forgetting that the United States declared its independence from Britain 230 years ago,1 or as though the Court had deferred to Zimbabwean law while forgetting about President Robert Mugabe’s dismal human rights record.2 On a second understanding, however, we don’t really invoke the law of particular countries one by one. Instead we take into consideration the consensus that has emerged among them all. We, in country A, look at what is held in common between the laws of countries B, C, D, and so on. For example, we don’t say that Britain has abolished the juvenile death penalty and use that to influence or confirm our decision about what Missouri should do. We say instead that there is a consensus in world legal opinion on the juvenile death penalty and that consensus ought to have some influence on us. That seems to be what mattered in Roper v. Simmons: in Justice Kennedy’s words, it was “the opinion of the world community,” not the holding of any particular foreign legal system.3 The second account is the one I want to defend. I think the consensus may have a status for us that particular citations lack, at least when they are considered on their own. The consensus is binding upon us as a sort of 48

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law—law for us, because it is the law of the whole world—whereas no one thinks the statutes, precedents, or doctrines of just one other country have any legal authority so far as decision making in the United States is concerned. As I said at the beginning, the best way of understanding what was going on in Roper v. Simmons was that the Supreme Court invoked the principle that people are not to be executed for crimes they committed when they were children, which is a principle belonging to a system of law called ius gentium—law in the world—and belonging to that law by virtue of the fact that it represents a legal consensus among the nations of the world.

2. A Made-Up Law? But what sort of law is this law in the world supposed to be? In virtue of what is the principle about the juvenile death penalty law for us? Nobody made it law for us; nobody laid it down as such. Also, what makes a collection of such principles into a system of law for every country in the world? There is no world code or charter of such law that we have all agreed to, in the way that the people of a country agree to its constitution or in the way that their representatives agree to its statutes. True, there is international law, which sovereign states might have signed and ratified, but ius gentium is supposed to be different from that. So what makes ius gentium law and how does it acquire its authority? And if ius gentium does represent a body of genuine law, what is its relation exactly to the body of genuine law that comprises the national law of a society like that of the United States? Are the two separate? Or locked together? Does one incorporate the other? Or what? In this chapter, I shall try to answer these questions. We had better have answers because on the face of it ius gentium looks like a fiction or a chimera. A law in the world that nobody has laid down as law? A principle that no one may be executed for a crime he committed when he was a child that applies to us but not because any of our Framers or legislators or judges have (as yet) imposed it upon us? What sense can we make of these ideas? From time to time legal theorists reflect on the distinction between real laws and alleged laws, that is, laws that do not really exist. It seems strange to talk of nonexistent laws, but let’s try a few examples. A first category might be fictional laws (not the same as legal fictions), like those of the elves in J. R. R. Tolkien’s fantasies. We should put this example aside. The whole of The Lord of the Rings is a fiction: it is a fiction partly about law and indeed partly about the distinction between real law, like Elvish law, and unreal law, like ancient laws remembered by Gandalf that ceased to be enforced in Middle Earth centuries before. Tolkien couldn’t write this way in his novels

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unless we, his readers in the real world, were already in a position to distinguish between real and unreal laws. We need to be in possession of that conceptual distinction in order for him to use it intelligibly in his fiction. A second sense of unreality concerns laws that once were in force but are not so any longer. Roman law is a good example. The Ten Tables, the Institutes, the Pandects, and so forth were once the law of a flourishing empire, but now they are not. We can still refer to them, but they exist only as text; they no longer have any social reality. People still study Roman law, partly for antiquarian reasons and partly because it is widely believed that the conceptual structure of Roman law helps us understand certain bodies of law that do now exist. The ius gentium, in the sense discussed in section 4 of the previous chapter, falls into this category. From 242 B.C.E. until 212 C.E. it existed as a body of law administered in Rome for foreigners by the praetor peregrinus; but it no longer exists as such. Philosophers of law sometimes include in their theories conditions of existence to separate living law from dead or nonexistent law: usually these conditions contain some combination of acceptance by those supposed to be participant in or subject to the alleged law and effective enforcement by its officials.4 These provide a test for distinguishing real laws from laws that have passed out of existence. A third sense of unreality is more tendentious. It is put in play when a jurist attacks something that most of his colleagues regard as living law, but which he regards in a much less flattering light. Jeremy Bentham made an attack of this kind on customary law and implicitly on English common law, which he regarded as the customs of the English judiciary. No customary law is complete, he insisted, for from a series of inarticulate actions in the past, such as acts of punishment, no determinate norm can be inferred.5 Bentham also attacked the idea of natural law as a “formidable non-entity.”6 Skepticism of this sort is not confined to Bentham’s era. American legal realists in the 1920s and 1930s sometimes attacked what their colleagues regarded as laws or bodies of law in this spirit; consider, for example, the attack on the reality of legal rules by nominalists such as Jerome Frank.7 The legal realists did not leave matters there. They used to say that many legal concepts they attacked as devoid of determinate meaning were useful nonetheless “for the purpose of releasing pent-up emotions, or putting babies to sleep, or inducing certain emotions or attitudes in a political or judicial audience.”8 The effect, said Felix Cohen in his version of this criticism, is often “to dull lay understanding and criticism of what courts do in fact.”9 And for good measure he added, “One may suspect that a court would not consistently hide behind a barrage of transcendental nonsense if the grounds of its decisions were such as could be presented without shame to

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the public.”10 Richard Posner takes a similar view of the citation of foreign law. “Citing foreign decisions,” he says, “is best understood as an effort to mystify the adjudicative process and disguise the political decisions that are the core of the Supreme Court’s constitutional output.”11 Both Posner and Justice Scalia have argued that citing foreign law is as much an attempt to bolster the judges’ own confidence as to delude the public. Our judges “are timid about speaking in their own voices lest the mask slip and legal justice be revealed as personal or political justice.”12 The citation of foreign law helps rescue an activist judge from a feeling of naked embarrassment as he goes about inventing new constitutional restrictions: Let’s face it. It’s pretty hard to put together a respectable number of pages setting forth (as a legal opinion is supposed to do) analytical reasons for newly imposed constitutional prescriptions or prohibitions that do not at all rest (as the original Bill of Rights did not rest) upon logic or analysis, but rest instead upon one’s moral sentiments, one’s view of natural law, one’s philosophy, or one’s religion. . . . [W]ithout something concrete to rely upon, judicial opinions will be driven to such philosophic or poetic explanations as “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Surely not a happy state of affairs for a court of law. It will seem much more like a real legal opinion if one can cite authority to support the philosophic, moral, or religious conclusions pronounced. Foreign authority can serve that purpose.13

It is not that these critics deny the reality of foreign law in the relevant foreign jurisdictions. Rather, they deny it legal reality in the federal law of the United States, and they offer these cynical accounts as an explanation of why American judges are bothering to use this material when, as Posner and Scalia think, any first-year law student can grasp its jurisprudential irrelevance. Can ius gentium sustain itself in the face of these irreverent attacks? I argue that it can and that a case can be made for taking ius gentium seriously as a body of legal principles that complements and interacts with our own law and helps us keep faith with the values of our legal civilization. Ius gentium is not an enacted body of law, but it is law nonetheless. As law it has its source in the municipal legal systems of the world; but in its legal effect it transcends those particular systems and presents itself as a body of principles that particular systems may draw down from when they are seeking to resolve difficult issues in a way that is wise and just and in harmony with the way those issues are resolved elsewhere in the world.

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3. The Skepticism of Erie Railroad v. Tompkins Some people say that the legal ontology I am toying with here died as a result of the decision of the U.S. Supreme Court in Erie Railroad v. Tompkins—I mean its decision to reject the idea of general common law, administrable by federal courts in diversity cases and standing apart from the positive law, that is, from the statute law or the judge-made law, of any particular state.14 In nineteenth-century diversity cases, that is, cases whose subject matter would normally be dealt with in a state court but which are heard in federal court because they involve parties from different states, the federal courts appealed to the idea of an overarching federal common law applicable to transactions with a trans-state dimension, of which they considered themselves to be the guardians. . The most famous example is Swift v. Tyson (1842), a decision involving a bill of exchange written in Maine but negotiated in New York City. There the Supreme Court invoked the same sort of transcendent idea I am appealing to, saying that the case was to be settled according to the “general principles and doctrines of commercial jurisprudence.” Said Justice Joseph Story, “The law respecting negotiable instruments may be truly declared in the language of Cicero . . . to be in a great measure, not the law of a single country only, but of the [whole] commercial world. Non erit alia lex Romae, alia Athenis; . . . sed et apud omnes gentes et omni tempore una eademque lex obtinebit.”15 But that idea is no longer accepted in our jurisprudence. In a series of early twentieth-century cases Justice Oliver Wendell Holmes expressed a growing dissatisfaction with the very idea of such a transcendent body of common law. His dissatisfaction was expressed most vividly in a dissent in what is known as the Taxicab case.16 Holmes spoke of the fallacy involved in referring to a body of law as though it could exist apart from any institutional authority. There is no such thing as general common law, he argued, only the common law of this jurisdiction or that jurisdiction. Law does not float free in a way that transcends the political sources of authority: “If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was. But there is no such body of law. The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found.”17 Or, as he put it in another case, “The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified.”18 Holmes acknowledged that “law” is a word with

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many meanings, but, he went on, “law in the sense in which courts speak of it today does not exist without some definite authority behind it,” and the definite authority must be that of a particular state.19 This was the position adopted when the Supreme Court finally accepted Holmes’s skepticism and turned against the idea of general common law in Erie Railroad v. Tompkins. Sixty years later, in a case I discussed at the beginning of chapter 2, Justice Scalia referred to the impact of this decision as an “avulsive change.”20 I think he meant that the change in Erie Railroad affected not just general common law in diversity cases but whole ways of thinking in our jurisprudence. He thought the change left little room for anything like the law of nations (in the sense that I am using it), and to Justice Scalia that was a very good thing. So there’s the difficulty. If Erie Railroad is now authority for an “avulsive change” on the scale on which Scalia understands it, then there seems to be nothing for courts to look to under my heading of ius gentium, or laws common to all mankind. Holmes’s challenge in Erie Railroad is an ontological challenge. He is saying, this is not what law can be. Like “the law of Middle-Earth,” the phrase “ius gentium” denotes something imaginary, something that doesn’t exist. Maybe it would be a good thing if it did exist. But, to adapt what Bentham once said about natural rights, a reason for wishing there was law of a certain sort is not law: “Want is not supply—hunger is not bread.”21 What, if anything, can be said in the face of this skepticism? A first, technical point to make about Erie Railroad is that its excoriation of the invocation of general or federal common law in diversity cases does not necessarily extend to the use of other, similar or analogous notions elsewhere in the law. For example, the Court in Erie Railroad paid no attention whatever to the reference to the law of nations in article 1 of the Constitution or to its mention in the Alien Tort Statute or to the use of analogous ideas in state law, transnational mercantile law, admiralty law, or customary international law. The Court’s attention in Erie Railroad was focused on issues like inconsistency and forum shopping that arise when federal common law is used in diversity cases; but these are issues that do not necessarily arise in these other contexts. The Court also addressed federalism issues and separation of powers issues, that is, issues about the federal courts’ taking certain authority upon themselves, that either don’t arise in these other contexts or arise in utterly different ways. It would be foolish therefore to extrapolate from Erie Railroad, at least as a matter of doctrine, anything that is supposed to impact on the use of analogous notions in these other areas or in the area I am considering.

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To say that it would be foolish is not to say that it hasn’t been done. Justice Scalia’s account of the impact of Erie Railroad’s “avulsive change” on Alien Tort Statute litigation is evidence of that. But there is no doctrinal basis for that extrapolation. The only thing that could possibly support it would be a conviction that Erie Railroad somehow cemented in place a whole new jurisprudence. But then there is a second problem.22 The endorsement of Justice Holmes’s philosophical observations about the concept of law in Black & White Taxicab Co. was not necessary for the decision in Erie Railroad. The latter is best understood as a case prohibiting federal courts from unconstitutionally foisting law upon the states, not as a case in general jurisprudence concerning the concept of law. So, if we are going to take Holmes’s legal theory seriously, despite its being articulated only as dicta in Erie Railroad, we will have to have some independent confidence in it as jurisprudence. This leads to a third point. Although the endorsement of Holmes’s view in Erie Railroad is said by some scholars to have lent the authority of the U.S. Supreme Court to legal positivism,23 in fact, the particular version of positivism embodied in Holmes’s dictum—a crude sovereignty-centered positivism like that of the nineteenth-century positivist philosopher John Austin24—is now almost universally rejected among those who call themselves positivists. And the version of legal positivism that has replaced it by no means supports Holmes’s dogmatic rejection of general common law.25 Notice that I do not say what I said in 2005, that positivism as such has been discredited and that this is why Holmes’s jurisprudence is irrelevant.26 Legal positivism is certainly on the defensive.27 But my point now, a point I also made in 2005, is that the positivism represented by Justice Holmes’s insights in the Black & White Taxicab case, the positivism that was apparently endorsed in Erie Railroad, is now regarded by most legal philosophers as crude and obsolete. If positivism remains influential, it is in the more nuanced version developed more than a century later by H. L. A. Hart in The Concept of Law. On Hart’s version of legal positivism, we don’t call something law on account of there being “some definite authority behind it.” We call it law on account of there being a practice among a group of officials to recognize it and use it in their work.28 So, for example, we don’t say that the common law in England is law because there’s a sovereign who tacitly wills it; we say it is law because judges in that system have developed a settled practice of inferring, citing, manipulating, and applying doctrine and principles from decisions in past cases in England. It is this practice, a shared practice of recognition of the norms embodied in previous decisions, that gives the lines

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of precedent to which they refer lawlike status. That is what makes the common law law. So, similarly, a follower of Hart would have to say that if judges were to develop a settled practice of inferring, citing, manipulating, and applying principles from decisions by courts in foreign countries, then that might make the resulting body of doctrine law for their system, that is, the judges’ system, as well.29 They would have made it law by their practice of recognizing it as such. So far as modern legal positivism is concerned, the appropriateness of recourse to foreign law depends on what the judges do, on what rule of recognition they actually follow. (And by the way, it is a bit much for Holmes, of all people, to oppose this, given his judge-centric legal theory in “The Path of the Law.”)30 There is no particular reason, therefore, that modern positivism, defined in terms of the tools and methodology of Hart’s jurisprudence, should preclude the idea of ius gentium, defined as positive law. Whether it exists or not as law is a matter of practice; but we mustn’t beg the question against it by using the jurisprudentially outdated, not to say politically outdated, apparatus of Austinian sovereignty. One of the defects of Hart’s jurisprudence is that he says very little about the way in which rules of recognition might change or new rules of recognition come into existence. He says very little about the way in which judges might persuade one another to begin participating in a new practice of this kind. We may be at a relatively early stage in America with the citation of foreign law in constitutional case, and it is possible that American judges as a community will repudiate some of these ideas; if they do, what I am calling the ius gentium might cease to be law in the United States, even though it’s already law for most jurists in the world. To use a perhaps inadvisable metaphor, we are at a sort of Tinkerbell moment: this material will exist as a body of law if judges believe in it enough and begin articulating that belief into their practices of adjudication.31 Then, as Justice Aharon Barak, formerly of the Israeli Supreme Court has said, “There will be a sort of self-reinforcing spiral: judges will start to rely on comparative law; lawyers will tend to cite it to judges; law schools will start teaching comparative law; scholars will be encouraged to research in [it]; [and] judges will rely more and more on [it].”32 On the basis of Hart’s view we have to say: this is how a body of law comes into existence. It is not just a matter of judges’ happening to fall into a certain pattern of practice. The secondary rules in most legal systems don’t operate as mere conventions, like driving on the right-hand side of the road.33 They often embody substantive reasons, though there is of course a conventional element. Judges who defer to an elected legislature, for example, do so not just because their brethren do; they do so because of democratic reasons,

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although doubtless an individual judge would not be prepared to act on those reasons except in the company of a sufficiently large number of others. That is why I think it is important not just to go around saying to the opponents of recourse to foreign law, “Well, everyone else or almost everyone else in the world does it.” We have to explore why that is worth doing (see chapters 4 and 5). I said in chapter 2 that though I am using the phrase “ius gentium” I am not wedded to any particular terminology. One might, for all I care, describe it as general common law and stand unfazed by the decision in Erie Railroad v. Tompkins, for that case affected only a particular use of this sort of idea. It provides no grounds that are either doctrinally compelling or jurisprudentially convincing for dismissing the idea itself. Those who continue to appeal to Erie Railroad as a basis of skepticism about any notion of this kind are overreaching doctrinally and using that to try to validate their deployment of a crude and obsolete philosophy of law.

4. Noninstitutionalized Law One of the difficulties we face when we talk about ius gentium is that it does not present itself to ordinary people or, for that matter, to ordinary lawyers as something they need to take account of, something they need to care about. If it is law at all, it is law in some esoteric technical sense that distinguishes it from the familiar image of written edicts backed up by institutionalized authority that ordinary people have in mind when they hear the word “law.” Ordinary folks assume that law is written down somewhere in a statute or the Constitution or a case; and they assume it has the full backing of the power of the state. When academic jurists talk of law in a way that does not conform to these patterns—when they talk, for example, about customary international law, which is neither written nor in any very strong sense institutionalized—ordinary people find that talk confusing. And if the alleged law is supposed to impose constraints on them or their government, they may think that something is being put over on them via some sneaky, self-serving academic theory. Nothing much can be done about this. The disjunction between technical and lay notions of law is well understood. Frederick Charles von Savigny observed in the early nineteenth century that jurists are now becoming “more and more a distinct class” as law “takes a scientific direction.” Henceforth, he said, law will be “more artificial and complex, since it has a twofold life: first, as part of the aggregate existence of the community . . . and secondly, as a distinct branch of knowledge in the hands of the

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jurists.”34 Max Weber said something similar when he argued that it is inevitable that “as a result of technical and economic developments, the legal ignorance of the layman will increase.”35 I do not mean to browbeat readers into taking ius gentium seriously by invoking some sort of esoteric privilege. What Weber and Savigny say may be right, and still ius gentium may be a chimera. But inasmuch as the skepticism I am combating depends on indicia like being written down or being institutionalized in and enforced by the agencies of a state, more needs to be said. Even from the positivist perspective there are laws that are not written down, bodies of law that are not embodied in the canonical output of some institution. Common law is like that; it just exists in the propensity of courts to cite one another’s decisions. Court B may refer to and rely on a principle used by court A in an earlier case and referred to in the opinion that accompanied court A’s decision. But court B may formulate that principle in a different way, and court C, following this line of precedent, might adopt a formulation different from either of the other two. As we study this process, we see that law and legal principles do not necessarily consist in a sanctified form of words. Much the same is true of customary law, which has to be inferred from practice. (This is true of customary international law as well as customary law in the domestic or mercantile realm.) In some countries, most notoriously the United Kingdom, many of the most important principles of the constitution are customary in this sense. For example, the rule that the queen may not withhold her assent from a piece of legislation adopted by both Houses of Parliament consists in a practice that has settled in and become normative since the last royal veto in 1708.36 Jurists debate whether there is an unwritten part of the Constitution of the United States as well.37 And if Hart’s theory is correct, the most fundamental secondary rules of any legal system tend to have a customary mode of existence: they just exist as the normative practice of a class of powerful persons.38 Again, none of these observations establishes that there is such a thing as ius gentium. But the fact that it is not authoritatively written down anywhere does not count against its existence. Can the same be said about lack of institutional embodiment? The institutional reality of law might seem more important than its canonical formulation. One of the marks of obsolete law, that is, law that is unreal in the sense of no longer existing as it once did, is that there are no longer courts that will apply it or armed organizations that will enforce it. Eric Posner, in a recent book, has argued that institutions like a legislature and armed enforcement agencies are indispensable to law: “It can hardly be

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exaggerated how important the supporting institutions of law are for making the law work in a way that advances people’s interests; without those institutions, law is more like social norms or customary norms or norms of etiquette—free-floating rules that emerge somehow from the maelstrom of human behavior that people only vaguely understand, that are rarely clear, that can’t be easily changed, and that have an obscure relationship with human well-being.”39 But Posner’s pursuit of this theme is rather halfhearted. He is not prepared to deny that there is such a thing as international law, despite the fact that it lacks the full panoply of institutional support that he thinks indispensable. What he mostly wants to do is debunk the faith that “global legalists” place in international law and argue in a “realist” way that the only claim international law has on us is its capacity sometimes to support our national interest. The claim is a non sequitur, and there is little point debating it here. If Posner wants to persuade us to consult nothing but our conception of national sovereign interest, in the absence of institutions capable of forcing us to do otherwise, and blind ourselves to other individual, communal, or national springs of action that might also flourish in the absence of an overarching coercive power, then he is welcome to try. And no doubt he will make a similar attempt in the case of ius gentium with, one expects, similarly mixed results. The fact is that different institutions play different roles in different kinds of legal system. Whether Eric Posner likes it or not, the existence of international law—its presence in the world and the work it does—has made us alive to the possibility that law can exist without dedicated enforcement agencies. Other jurists, not necessarily having international law in mind, have made us aware that the concept of law as an institutionalized system does not necessarily require the existence of a dedicated legislature: Joseph Raz has argued that the key to law must surely be the operation of institutions like courts, which are oriented to a common body of material, recognizable in some shared way and applied as a result of their decisions.40 The existence of international law is partly a matter of there being courts like the International Court of Justice (ICJ) that will enforce it, though these are not courts of compulsory jurisdiction; partly a matter of the willingness of national sovereigns to accept the decisions of these courts, which they mostly do; partly a matter of its being recognized by national courts, even if they are not always charged with its administration; partly a matter of the effectiveness of the norms of international law in guiding the conduct of the parties subject to them, on the whole, even if not in every case; and partly a matter of there being reasonably well-understood rules by which norms of international law come into existence, as through treaty and so on. When

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we apply these tests to the alleged existence of ius gentium, we find that some of them are satisfied, some of them are not, and some are controversial. To the extent that courts in other countries in the world take seriously the sort of world law that I have been talking about, then it is recognized by existing courts, and it does seem to be something which governments and other entities apply to their own conduct and orient themselves toward in the way they govern. It is true that ius gentium has no artillery of its own—no divisions, as Stalin would say41—and no dedicated institutions analogous to the ICJ. But that is partly because, on the account of those who believe in it, its mode of existence is to complement the law of individual states, which are said to be ruled partly by ius gentium and partly by their own particular laws, in the rulings of those states’ national courts. It is perhaps best understood as an additional common source of national law rather than as a distinct body of law in its own right. Its social reality consists in the readiness of judges and jurists to refer to it and rely on it.

5. Normativity and Authority Let me turn now to consider a different line of attack. Can ius gentium operate in the way law is supposed to operate, normatively or prescriptively, telling us or telling courts what ought to be done. I don’t mean what morally ought to be done. I am referring to law’s own inherent normativity, the fact that what it says is that something is to be done.42 The problem of ius gentium’s normativity arises out of the sort of thing it is. It is a consensus, characterizing the positive law of various countries in the world, which makes it a social fact. Now sociology is not law, and a sociological survey of the practices of all the countries in the world is not capable in itself of telling us what to do. For how can a consensus, which in itself is just a set-theoretic description of a worldly commonality, become something normative? How can a fact about what other systems do become a norm for us? How can the “is” of a consensus become an “ought” for our judges?43 Of course trivially, the content of the consensus I am considering is normative in itself. The content may be a principle such as the one I have been focusing on in the context of Roper v. Simmons, the principle that prohibits the execution of people for crimes they committed when they were children. The acceptance of this principle by each of the almost two hundred communities that already recognize it is a matter of their following its normative force. If we decide to adopt it because of its place in a global consensus, what we would be adopting would be something normative.

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But that still leaves the question of why we should adopt it. Relative to that decision, what normative force does the mere fact of a consensus have? To answer this question, we have to say why it might matter that there be a consensus in the world on issues of the kind we are considering. It will be the task of chapters 4 and 5 to answer this question. Chapter 4 argues that a consensus on a certain principle or set of principles may be normative for us because that consensus represents a repository of wisdom in the world from which it makes sense for us to learn. Chapter 5 argues, in addition, that there are good reasons, some pragmatic, some moral, for us to act in a way that preserves a certain harmony, unity, or integrity worldwide on certain basic standards. The fact of the consensus plus the importance of the considerations studied in chapters 4 and 5 add up to something normative. The normative arguments set out in those chapters could be the basis for retail observance of particular laws and precedents. Two countries might find it useful to harmonize their understanding of fundamental rights, so that extradition arrangements can work smoothly between them. Or one country may learn from another how best to approach a knotty legal problem of a certain sort. Courts around the world often appeal to American precedents in order to unravel tangled issues of a kind that U.S. courts are familiar with. One does not need the idea of ius gentium as a distinct body of world law to make sense of this. This is piecemeal learning or piecemeal harmonization, and it is mostly a good thing. On one view, that’s all one needs to say about its normativity. But sometimes these same values of global learning or global harmonization may sponsor something a little less ad hoc. It might be a good idea in general and for the foreseeable future for the countries of the world to harmonize their approach to problems of a certain sort. Or a certain type of approach to some legal problem may have proved so fruitful among the countries that use it that it makes sense for it to be regarded as a permanent resource for use by any country that comes up against a problem of this kind. In cases like these, the approach in question, formulable as a norm or a procedure, is of sufficiently enduring interest to be treated as a legal entity that can be considered or entertained apart from the national practices that gave rise to it. And so it fits in this category of ius gentium, a body of legal resources available to all legal systems in the world. At this point we are likely to hear the objection that although my account has explained why a consensus in the world can have some normative force, it has not explained how a consensus in the world can have the particular normative force that law is supposed to have. All I have explained—or all I have promised to explain in the next two chapters—is

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how it might be a rather good idea to take notice of a legal consensus in the world, and that this being-a-rather-good-idea might be a permanent feature of the consensus in question. Surely the normative force of law has to be more than that. Those who make this objection are likely to cite Raz’s theory of authority. They will say that something has the normative force of law only if it is authoritative in Raz’s sense: it must constitute a mandatory norm governing those over whom it is supposed to have authority, and that means there must be a case for its excluding from consideration any reason that might otherwise pull in the opposite direction.44 Like many people, I find that account of what it is for something to be law or to have the force of law too strong.45 Legal rules, for example, the terms of statutes and some of the provisions in the Constitution, often work in that way: what they say is clear and, once they are recognized as law, what they say goes, without further ado. But this is not true of many things recognized as legal precedents, for example. A court may have made a decision and in doing so laid down a general norm that seems to apply not only to the case that court decided, but to the case in front of us now. Still, precedents can be overruled or varied, and some of the reasons for overruling them or varying their application are among the reasons that their Razian authority is supposed to supersede. Raz might say of that case that the question facing the potential overruler is whether to continue recognizing the norm in question as authoritative or not, in which case the possibility of overruling does not affect his account of what it is for the norm to (continue to) be authoritative.46 But precedents can be weakened as well as overruled. A weakened precedent may be capable of determining an outcome only in a case in which the reasons arrayed against it are not very many or not very strong. A binding precedent perhaps determines an outcome irrespective of the number or force of the opposing reasons. But a weakened precedent cannot brush the reasons aside in the same peremptory way. And yet it still has the potential to have some impact as a legal norm in determining the outcome. What is sometimes called persuasive precedent works like that. In chapter 1 I noted that “persuasive” is ambiguous in this context, as between a precedent that persuades us by its reasoning alone and a precedent that has less than binding authority.47 I am talking here about the latter, though the two dimensions are often entangled. Often the power of a persuasive precedent is a partial function of the persuasiveness of the reasoning it embodies; but it is also in part a function of the respect due to the tribunal from which it emerges, which in turn may be partly a matter of how well that tribunal is thought to have reasoned in the past. For example, when one Circuit Court of Appeals in the

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United States considers a prior decision by the Court of Appeals of a different circuit, it will not regard itself as bound thereby, but it may give the norm emerging from the prior decision some weight in its own deliberation and indeed some greater weight than would be its due on the basis of the quality of the reasoning that supports it. Similarly, when a New Zealand court considers an English precedent that is more or less on point for the case in front of it, the New Zealand court will not treat the English as peremptorily binding, but it will give it some weight, perhaps somewhat more than the persuasiveness of its reasoning would dictate. In both these cases there is a difference between the force of a precedent and the obligation of the court to at least consider it. A binding precedent no doubt must be considered. Is it the case that a nonbinding or persuasive precedent may be considered or not, as the court determines? I think that is wrong.48 A court may be bound to take into account the nonbinding precedents that are drawn to its attention and give them appropriate weight, though not binding weight, since absent even their limited weight the balance of reasons might go the other way. Certainly in some cases of the kind considered in the previous paragraph, failure to do so, that is, refusal to consider the force of nonbinding precedents, may be in itself ground for appeal. How much of this reasoning can be accommodated in Raz’s jurisprudence I wouldn’t care to say.49 Raz does talk about the possibility of mandatory norms conflicting with one another, and if they can the conflicts may be sorted out only on the basis of their having differential weight qua mandatory norms. In any case, the outline of persuasive authority I have just provided does indicate room for dimensions of authoritativeness that fall somewhat short of the peremptory force of Razian authority as it is usually understood. Not all normative considerations in law present themselves as rules: some do so as policies or aims that are to be pursued in a broadly maximizing way or at least taken into account as factors in the court’s decision. I will say more about this in section 7 below. For now, let me say that we are going to need the full panoply of conceptions outlined in the last few paragraphs to explain the authority the ius gentium is supposed to have in U.S. law. It is seldom the peremptory authority of a binding rule, but it is legal authority nonetheless. We can’t explain this with an impoverished jurisprudence.

6. Riggs v. Palmer (1889) When I talk about the ius gentium I do not have in mind anything much on the model of a set of enacted rules. I am thinking more of a body

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of principles, norms that do not necessarily have any definitive textual embodiment but can be referred to nevertheless for the way in which they represent the weight of certain sorts of reasons in legal argument. Let me explain how the idea of legal principles might work in this context. Consider the well-known case of Riggs v. Palmer, from New York in 1889.50 A young man, Elmer Palmer, poisoned his grandfather and, upon being convicted of second-degree murder, was sent to prison for a number of years. Under the terms of the grandfather’s will, the killer stood to inherit a great deal of his property. If the will was administered as the testator had directed, the grandson would be a wealthy man upon his release. This result struck many people as offensive. But what was to be done? The matter seemed to be completely settled by statute. The terms of the statute of wills were fully satisfied; there was no defect in the drafting or execution of the will; and there had been no fraud or duress exercised upon the testator. The law of homicide was clear, too: it punished Palmer with the prison sentence he was serving, but it did not dictate any general expropriation of his property or property that he had a legal expectation of acquiring. It is not, after all, the function of courts administering deceased estates to add anything to the punishments imposed by the criminal law for second-degree murder. It looked as though Palmer was home free, free to spend his ill-gotten inheritance when he was released from prison. Yet the New York Court of Appeals held by a majority that the killer was not entitled to inherit. Some of the arguments they produced for doing so rested on a dubious doctrine of constructive legislative intention. Though a literal construction of the relevant statutes gave the property to the murderer, they said it could never have been the intention of the legislators that a person who murdered the testator to make the will operative should have any benefit under it.51 However, the majority in Riggs v. Palmer came up with an even better and much more intriguing argument: “All laws, as well as all contracts, may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.”52 In the majority opinion, Judge Robert Earl cited a case from federal insurance law in which a similar principle applied.53 He also cited foreign materials, from the Civil Code of Lower Canada, the Code Napoléon, civil law in general, and the principles of Roman law. He seemed to be agreeing with

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Gaius that “every law-governed community . . . uses partly its own law, partly laws common to all mankind.” It uses not only its local statutes of wills and homicide but also “general principles of universal law” to control the application of its own legislation and precedents. In the 1960s and 1970s Riggs v. Palmer became the leitmotif of a whole new jurisprudence. It was Exhibit A in Ronald Dworkin’s argument that a legal system does not consist only of rules, as Hart had seemed to assume in his book The Concept of Law, but that we also have to take into account deep background principles like “no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime,” principles which exist and operate in a legal system in a manner quite different from rules. It was very important for Dworkin that the invocation of principles in a case like this should not be construed as a judge’s reaching beyond the law for something purely moral. The principle appealed to in Riggs v. Palmer, he argued, was already and implicitly part of the law of the State of New York, even though it had not been specifically enacted and even though there was no litmus test, like a rule of recognition, for discerning it. Dworkin argued, convincingly in my view, that the status of such principles as law “lies not in a particular decision of some legislature or court, but in a sense of appropriateness developed in the profession and the public over time.”54 One might cite cases in which they figure, as the majority did in Riggs v. Palmer, but basically identifying a legal principle is a matter of “grappling with a whole set of shifting, evolving and interacting standards, . . . about institutional responsibility, statutory interpretation, the persuasive force of various sorts of precedent, the relation of all these to contemporary moral practices, and hosts of other such standards.”55 That process cannot be reduced to a formula. Dworkin’s position is that the discernment of a principle in a given body of law is not possible without the exercise of moral judgment. That does not mean the principle in question is nonlegal, that is, purely moral.56 It is as much a part of the law as an explicit rule, and often principles do much more work than rules do. (Dworkin cites the principle of stare decisis and the principle of legislative supremacy as examples.)57 Principles, in Dworkin’s view, operate in a way that rules don’t. Most rules have canonical formulations: certainly those laid down in statutes and in the clearest precedents do.58 Principles, however, can be stated in a number of different ways, using various forms of words. Such looseness betokens a second, more important difference: principles differ from rules in their normativity. They are normative, certainly. They are general in form; they point to a kind of action or circumstance (a person

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profiting from his own wrongdoing, for example), and they prescribe, if that is the right word, that that sort of thing should not happen. But they differ from rules in the exact valence of their prescriptive character. A rule specifies an action or circumstance that is not to happen and simply prohibits it from happening; it is applicable in all-or-nothing fashion: “If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision.”59 But a principle invokes a consideration that is to be given weight in a decision even though it does not determine the matter in a conclusive or peremptory fashion: “It states a reason that argues in one direction, but does not necessitate a particular decision.”60 It inclines the court that considers it in a particular direction, but everything depends on the other reasons or principles that might also be in play in the case. The logic here is similar to that I invoked in considering the limitations of Raz’s theory of authority in section 4—only in that case I was considering norms that had less than peremptory force on account of their source, whereas here I am dealing with norms that have less than peremptory force as a matter of their normative character.61 Notice that considerations of the sort Dworkin identifies might fail to determine an outcome partly because they are not rules but also, in some cases, partly because they have the deontic structure of policies rather than principles. Among the legal norms Dworkin identifies in the depths of a legal system are some that work in a consequentialist fashion—policies, as he calls them—and some whose character is more deontological.62 I think it is possible for a norm to have a deontological rather than consequentialist character and still not be capable of determining the outcome of a case peremptorily. It is partly a matter of the sort of authority it has in law as opposed to the deontic logic it bears. Both the norm in Roper v. Simmons, that adults are not to be executed for crimes they committed when they were children, and the norm in Riggs v. Palmer, that people are not to be permitted to profit from their wrongdoing, operate deontically as principles—that is, their inherent deontic force is that certain things are simply not to be done. They are quite unlike goals and policies in the way they envisage controlling the world. But they do not necessarily have the authority or force to impose these requirements peremptorily in the way that their deontology indicates. Competing as deontological legal norms with other legal reasons, they may be outweighed in a particular case. There is some doubt about whether Dworkin still accepts the idea of principles he expounded more than forty years ago, and also about whether he still accepts his original analysis of Riggs v. Palmer. Dworkin muddied the

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waters in 1997 by suggesting that the real ground of decision in Riggs was the point about statutory interpretation.63 That, as we saw, was certainly part of the majority argument in Riggs, but it was not the part that Dworkin had originally focused on.64 As Fred Schauer pointed out at the time, the whole excitement of Dworkin’s analysis of Riggs was the emphasis on legal principles as a category distinct from the norms that emerge from the texts of statutes. It is possible that Dworkin’s later emphasis upon the interpretation of legal materials, as opposed to the discernment of free-standing principles, has led him to a slightly different account of Riggs v. Palmer.65 But in a very recent piece Dworkin went out of his way to insist that he does still regard the idea of legal principles as “sound and important.”66 I am not sure what to make of this.67 The New York Court of Appeals said two things about the principles it cited in Riggs v. Palmer: they were fundamental maxims of the common law; and they had “their foundation in universal law administered in all civilized countries.”68 Dworkin focused on the first of these. In 1967 his aim was to expand the sense of what any given legal system comprised, not necessarily to expand the sense of the law to include what is done in other countries. Accordingly, the reference to “universal law” has not been much discussed in the Dworkin literature. Jurists have not treated Riggs v. Palmer as an instance of reliance on foreign law, though it is. Neither have they treated it as standing in the line of cases associated with Swift v. Tyson that I mentioned in chapter 2. Now Swift v. Tyson was a federal case, addressing the application of federal common law as it arose in diversity issues.69 That sense of federal common law was disowned by the U.S. Supreme Court in Erie Railroad v. Tompkins. What is remarkable about Riggs v. Palmer is that substantially the same idea is being invoked, only not in a diversity case but by a state court addressing a legal conundrum entirely located in the State of New York. The reasoning in Erie Railroad comes nowhere near affecting the logic of this decision, nor, without unconscionable stretching of unreliable dicta, does it undermine Judge Earl’s invocation of “universal law administered in all civilized countries.”70 In its reference to the Civil Code of Lower Canada, the Code Napoléon, civil law in general, and the principles of Roman law, the invocation of foreign law in Riggs v. Palmer has been left pretty much alone. I suspect that if they notice it at all, most participants in the debate about Dworkinian principles read the passage concerning “universal law administered in all civilized countries” as a natural law idea, picking up on the side of Dworkinian principles that refers to their moral appeal rather than their positive grounding.71 But that is wrong. The New York Court of Appeals was

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not appealing to natural law or, if it was, it was appealing to natural law as it has been long embodied and administered in the positive laws of many jurisdictions. Notice too that the majority in Riggs v. Palmer did not say simply that we can learn something from the French or from the Canadians. They had a sense that there was a body of jurisprudence constituted jointly by a consistency among decisions in the world that could be held out as a resource. And they proceeded on the basis that a jurist with access to that resource, to that common body of law, would come up with the principle that required that Elmer Palmer should not profit from his wrongdoing. So there is this aspect of universal law as well as the Dworkinian logic of principles in Riggs v. Palmer. My aim is to bring the two aspects together, taking seriously the possibility that deep background principles, legal principles, may be inferred not just from a single existing body of positive law in the way that Dworkin argued, but also from multiple legal systems taken together. Indeed, principles whose presence may not be so apparent in one system may come more clearly into view when we look at a whole array of legal systems. And if that is the case, then their presence as legal principles will be a characteristic of law in the world—laws common to all mankind— rather than just the property of the individual systems in which they figure one by one.

7. Ius Gentium as a System of Law In Taking Rights Seriously Dworkin says that once you start looking for principles you find them everywhere.72 I suppose one could list what one found, and the list might be regarded as a body of law in some more or less tangible sense. But principles don’t really work like that. And what I am envisaging as a body of law emerging from legal systems in general—not just from one legal system, as in Dworkin’s model—would be equally misrepresented if one were to set it up as an itemized table. Principles cannot really be separated from the work they do, only now I am talking about the work they do not just in one particular legal system, but in the influence they exert across legal systems. There was a sense in Riggs v. Palmer of drawing down from a body of principle that existed in the world. And that’s what I have in mind, too, but I think we will have a misleading image of it if we visualize it as a table of itemized legal text. Principles exist in use, not on paper. This notion becomes explicit in Dworkin’s later work, as the idea of distinct principles applied one by one is overtaken by the idea of principled interpretation—that is, interpretation that coheres with the tenor of the legal

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materials as a whole, whether this can be rendered in terms of discrete norms or not.73 However, to the extent that we do have in mind a set of principles that emerge from consensus in the legal world on various issues, the question arises whether this set is anything more than a collection. It is a principle of world law that people are not to profit from their wrongdoing, and it is a principle of world law that adults are not to be executed for crimes they committed when they were children. One damned principle after another: is there anything more to ius gentium than that? When does it become appropriate to think of ius gentium as a system of law, as opposed to a laundry list of principles, each of which has emerged from the consensus among legal systems on some topic? Systematicity, the business of being a system, is an interesting theme in modern jurisprudence.74 The systematicity of law is something which legal positivists are sometimes accused of ignoring or underestimating. Some American scholars identify positivism with the view that enacted rules of law may be considered, interpreted, and applied one by one, each without reference to any of the others or to any other legal materials. 75 So, for example, Richard Fallon refers to something called “the Anti-Positivist Principle,” according to which the law should be viewed as “as a rich, fluid, and evolving set of norms . . . not as a positivist system of fixed and determinate rules. Any particular legal directive must be seen and interpreted in light of the whole body of law.”76 The implication is that legal positivists deny this because they treat law piecemeal, as simply a heap or a set of unrelated commands or rules, each self-sufficient in its source or pedigree. Each item in the set is the product of a discrete event of positing or enactment. Each rule or each command demands attention and compliance. It neither affects nor is affected by the question of the validity of the next rule that comes along. The subject is required by the sovereign to comply with each of them, one by one; legal officials, especially judges, are required to figure out what compliance means in each case, independently of each of the others. Actually, real-life legal positivists do provide an understanding of the notion of legal system, but they understand it purely in terms of the systematicity of sources of law, the way in which laws are created, applied, and enforced. On their account, a set of laws becomes a legal system because of the unity or identity of their source or because of the unity or identity of the primary institutions that operate a “rule of recognition.”77 Positivists give a good account of what Hans Kelsen called the dynamic aspect of law, but not much about what he termed the static aspect of law: that is, the systematic relations among the content of legal norms.78 They say very little about

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doctrinal systematicity. Once it has been established that the members of a given set of rules belong to the same legal system so far as source, subjects, and enforcement are concerned, positivists tend to be uninterested in any further questions about the connections among those rules. It is left to the opponents of positivism—legal process scholars, natural lawyers, and latterday formalists—to take coherence seriously and to explore the implications of doctrinal systematicity.79 The problem with the positivists’ dynamic account of systematicity of source and application is that it does not really help with our understanding of ius gentium, because, as I acknowledged in section 4, ius gentium is not really an institutionalized system of law. Any systematicity it has must be static, in Kelsen’s sense, that is, doctrinal or content-based. Its dynamic systematicity will be a function of the institutionalized character of the legal system out of whose consensus it arises and whose work it influences. So what about doctrinal systematicity in the ius gentium? Historically, ius gentium operated as a doctrinally systematic body of law, in its manifestations as ius commune in Europe, as lex mercatoria throughout the world, and as the organized body of transcendent commercial principles appealed to in Luke v. Lyde and Swift v. Tyson. It was a body of law in which one could reason and explore the implications of a matted array of principles for difficult cases. It is a little harder to discern any similar systematicity in its modern manifestations, for example, in the juvenile death penalty cases. But it is there. In cases in which the U.S. Supreme Court concluded, partly on principles arising out of global consensus, that adults could not be executed for crimes they committed when they were children, it drew upon established conclusions, again, based partly on principles arising out of global consensus, that children could not be executed at all. Not that the former necessarily follows from the latter in any rigorous sense, but that it provides one among several grounds of reasoning to the results in Roper v. Simmons. The ius gentium norm about not executing children is not treated as something wholly apart from the ius gentium norm about not executing adults for crimes they committed when they were children; there are norms in between, such as the norm about not sentencing children to death, even if they will likely not be executed until they come of age;80 and the three kinds of norm hang together in allowing one to make sense of the general area of capital punishment and the largely separate treatment of juvenile offending. Other areas in which one finds a degree of doctrinal systematicity among ius gentium principles have to do with the application of the standard human rights limitation clause (see chapter 5) and the use and interpretation of the language of inhuman and degrading treatment or

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punishment in European human rights cases and in other cases around the world. The limitation clause has an internal complexity which requires a degree of doctrinal sensitivity: it refers not only to limitations that are acceptable in a free and democratic society, but also to limitations imposed by law, which is treated as a substantive condition and which interacts with the free and democratic aspect of the clause as well as with the rule-of-law considerations that seem relevant to the right that is being limited.81 As for the language of inhuman and degrading, one finds a dense, complex jurisprudence on the matter in the ECtHR cases, on which other nations, New Zealand, for example, draw freely.82 The complexity has to do with things like how to regard the difference between inhuman and degrading, how to map these concepts onto the topic of punishment, which necessarily involves stigmatization, how to discern differences between subjective and objective tests for maltreatment, and how to use various benchmarks to help distinguish treatment which is forbidden as inhuman or degrading from treatment that is not. Such doctrinal systematicity will become denser and more complicated as more and more decisions predicated upon world consensus emerge and as judges become less coy, less embarrassed, less beleaguered in their use of ius gentium materials, particularly on fundamental rights. In countries where the invocation of foreign law is routine, the doctrinal complexity and systematicity of the principles appealed to are taken for granted. Furthermore, they build upon, interact, and to a certain extent merge with the doctrinal complexity and systematicity of the home legal materials. A New Zealand court appealing to Australian and English precedents on some issue of child custody, for example, or some issue of evidence will take serious note of the doctrinal embeddedness of the English and Australian principles it invokes, and it will map those principles and their trailing clouds of doctrine onto the doctrinal complexity of existing New Zealand law. In these ways, the systematicity of the ius gentium and of appeals to foreign law generally is not something self-contained but a matter of relation between the body of principles arising from an array of existing legal systems and the local legal doctrine of the existing system that draws down from that body of principles.

8. Partly One System and Partly Another? The Institutes maintains that each society is ruled partly by its own laws and partly by laws common to all mankind, and I have identified the latter with the ius gentium. If the ius gentium is a system of law in its own right,

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then what is its relation to the systems of law in which it does its work at the national level? The answer to this question threatens to get ultratechnical, requiring fine distinctions and conceptualizations concerning the identity and individuation of legal systems. It raises questions about the capacity of legal systems to incorporate and apply norms derived from other systems, about the difference between laws and sources of law, and about the differences, if any, between incorporation and “mere” application. It raises questions similar to those that, if one were talking about international law, would be about monism and dualism. One might seek to answer some of these inquiries from first principles and others by considering the possible relevance of various analogies. There are a number of analogies we might use. For example, we might compare the dictum in the Institutes, namely, (i)

All peoples, who are ruled by laws and customs, use partly their own laws and partly laws common to all mankind

with (ii) All sovereign states in the modern international community use partly their own laws and partly international law when they are deciding cases with an international dimension; or with (iii) All members of the EU use partly their own laws and partly EU law; or with (iv) All members of the Council of Europe use partly their own laws and partly law arising out of the decisions of the ECtHR; or with (v) All the states of the U.S.A. use partly their own law and partly federal law; or with (vi) All states in the USA use partly their own homegrown laws and precedents and partly the Uniform Commercial Code (UCC) to decide cases about contracts.

Or shall we use some other analogy? Or none of the above? I am not trying to analogize ius gentium as such to the second term in each of these relations. It is quite different from most of them in the way it is constituted and in the way in which the connection with each legal system is established. I am considering these analogies only to see if they can cast light on the relationship ius gentium might have to the law of a country in which it is invoked. In analogy (vi), it is reasonable to say that the UCC is now part of the legal system of each state in which it used. Though it was established as a body of principles drafted and promulgated by the American Law Institute

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and others and then proposed for adoption by state legislatures, its adoption by each state legislature has incorporated it effectively into the law of that state. Once incorporated, it takes on a life of its own in each state, so that precedents accumulate in, say, Mississippi relevant to some provision in the code that Mississippi shares with Alabama, precedents that may be somewhat different from the precedents relevant to that section in Alabama. And then a third state facing a question about the interpretation of the very same provision may have to choose between these interpretations or adopt a third one of its own.83 In analogies (ii) and (iv), by contrast, it is sometimes said that accession to and ratification of the relevant international or regional material do not automatically make it part of the particular municipal law. So, for example, despite the reference to treaties in the U.S. Constitution’s Supremacy Clause, it is usually thought that American courts cannot directly enforce the terms of an international treaty—say, a human rights treaty—as law in a domestic case. But they can refer to it and perhaps use it as a guide to the interpretation of some legislation that they are empowered to enforce. Similarly with the ECHR. It is usually thought that the enactment and commencement of the Human Rights Act in Great Britain marked a transition between the nonincorporation of the ECHR human rights regime. Prior to 2000, Britain, as a sovereign state and as a member of the Council of Europe, was bound by the ECHR as a matter of treaty obligation, and its executive usually deferred to ECtHR. But still the ECHR was not part of English law and could not be relied upon directly in an English court. After 2000 that changed. As I said, we sometimes use the language of monism and dualism to describe the relation between international law and municipal law. The commencement of the Human Rights Act seemed to mark a transition from dualism to monism so far as English law and the ECHR were concerned, whereas the attitude of American courts to most international law remains steadfastly dualist. When foreign law is cited in U.S. courts in a case like Roper v. Simmons or when extraneous Commonwealth law is cited in, say, a New Zealand case, the foreign or extraneous law clearly cannot be said to be incorporated into the law of the country that invokes it, even if it is given some authority and even if it interacts with local materials. Partly this is a matter of abstract jurisprudence. Jurists often distinguish between something being law and something being a source of law.84 The foreign law that is cited is more like a source of law for the country that cites it; but the principle that is drawn from the foreign case or set of foreign precedents might come to have legal status in, that is, come to be incorporated into the body of law of, the jurisdiction in which it is invoked. So, for example, in Riggs v. Palmer the

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references to the Civil Code of Lower Canada and the Code Napoléon did not incorporate those bodies of law into New York state law, but the principle that was drawn from those sources was established thereby as an integral part of New York state law (if it was not implicitly part of it already). So far so good. But what happens when we turn our attention from piecemeal invocations of foreign law to reliance on the body of principles I call ius gentium? If we are to distinguish between law and sources of law, don’t we have to say in that case that the source of law is the consensus among legal systems and that the law is the set of principles extrapolated from that consensus? To say that is to move too quickly. In Riggs v. Palmer, for example, there seem to be two steps: the foreign material on which the New York court drew and its establishment in New York state law of a principle extrapolated from that material. But perhaps there is another step in between: (1) the reference to foreign material; (2) the identification of a principle extrapolated from that material; and (3) the establishment of that principle as part of New York state law. Step (3) happens not simply as part of the extrapolation; it happens because of what the court does with the material that is extrapolated. Considered in advance of the actual decision, (2), like (1), is a source of law for New York, not New York law itself. Similarly, in the case of the ius gentium as a whole the relevant steps are (1) the discernment of a global consensus on various issues; (2) the identification of a body of principles arising out of that consensus; and (3) the establishment of one or more of those principles as part of the law of a particular state by its drawing down on (2). Again, the body of principles identified at stage (2) is something that stands apart from or in a dualist relation with the law of the state that eventually applies it. When an American court refers to a foreign consensus or identifies some principle of the law of nations, it is at that juncture just pointing to law outside the system of American law, albeit law that is entitled to hold some influence upon Americans. The principle with which I began this book—that young adults are not to be executed for crimes they committed when they were children— was not necessarily part of American law in advance of the decisions in Thompson v. Oklahoma and Roper v. Simmons. It was part of the ius gentium, which the Supreme Court used in those cases to make law. But it became law in America only by virtue of the Supreme Court’s use of it in those cases. Is this analysis satisfactory? I think so, but we have to give the skeptics one last bite at the apple. Austin expressed skepticism about whether ius gentium should be regarded as an independent system of world law: “Assuming that the systems of all nations, wholly or in part, exactly

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resembled each other (i.e. that all or many of the provisions to be found in those several systems were exactly alike), still we could not speak of them with propriety as forming a Universal Law; the sanction being applied by the government of each community, and not by a superior common to all mankind.”85 (Like Bentham, Austin denied the initial assumption; he didn’t think there was much overlap, at least not if one focused at the level of detail.86 But I will assume that part of the skepticism away, as Austin does, for the sake of argument.) Austin concludes that the dualist picture cannot be correct because ius gentium, considered apart from the municipal systems that apply and enforce it, does not have the institutional character that entitles it to be called law. So he proposes a different three-step account: (1) the discernment of a global consensus on various issues; (2a) the identification of a body of principles arising out of that consensus, which at this stage has the status of moral principles; and (3) the establishment of one or more of those moral principles as part of the law of a particular state by drawing down on (2). Legal dualism is replaced with the familiar positivist separation of law and morality. (Never mind that Austin was also happy to put international law and constitutional law into this category.)87 We are back with the issues I considered in section 4 and also in section 3, in the discussion of Erie Railroad v. Tompkins. Assuming that some form of institutionalization is part of what we mean by law, are we prepared to deny a body of norms the status of law simply because it lacks in and of itself the sanction of coercive application? I think one should be very chary of adopting any conceptual scheme that has this consequence. What if the best way to understand ius gentium’s formation and functioning is that it arises out of and is formed and set up for use by working legal systems, both of which characteristics distinguish it quite dramatically from what we would normally call morality? What if the best way to understand its presence in the world, sociologically—as an object of knowledge, study, and application in various communities—makes it look much more like law than any phenomenon more fruitfully studied under the heading of morality?88 What if it is largely unknown and unintelligible to those who pride themselves on the study of moral ideas but is studied and used by those who trained in and pride themselves on an understanding of law? On all these grounds there seem to be good reasons to categorize ius gentium as law, considered apart from the systems of positive law out of which, by consensus, it arises and by which it is applied in particular cases. Its intimate relation with these systems is of course part of the reason for calling it law; my point is that there are also good systemic reasons for distinguishing it as a separate legal entity. Austin and Holmes may protest that there is not

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enough organized force involved to put it on the law side of a lawand-morality dichotomy. But I question the adequacy of this dichotomy, especially when the first category, law, is confined to a sort of sovereigndominated conception that everyone regards as obsolete in other respects and everything else is piled into a residual category, morality, whose variegated contents seem to have very little in common.89

CHAPTER FOUR

Learning from Other Courts

1. Two Arguments and Two Ways of Taking Them My aim in the next two chapters is to set out the reasons that make invoking foreign law in American courtrooms a sensible thing to do. I will pursue two main lines of argument. The first, which I discuss in this chapter, is that we can learn from what other courts are doing when they address questions which are the same or similar to those we are addressing. The second line of argument involves the more challenging idea that there may be some virtue in sheer consistency across the decisions of different courts, even for courts belonging to different jurisdictions. (I discuss that idea in chapter 5.) Each of the arguments I develop can be read in two ways. They can be read as justifying the sort of haphazard reference to foreign law that we saw in the Supreme Court opinions in Roper v. Simmons, Lawrence v. Texas, and the other cases I have mentioned. Sometimes those references are to a full global consensus, purporting to survey all 192 independent nations of the world.1 Sometimes they are to a few countries or a few jurisdictions here and there, like the references in Lawrence v. Texas to British law and to a decision of the European Court of Human Rights.2 Sometimes we are supposed to learn something from the experience of just one foreign jurisdiction—like learning from the experience of the Netherlands with assisted suicide in Washington v. Glucksberg.3 Sometimes we are supposed to learn from a trend that can be discerned among some relatively small number of nations, though rejected in others: this was the burden of Justice Breyer’s work on the death row syndrome in his dissents in Knight v. Florida and Foster v. Florida.4 By calling this practice haphazard, I don’t mean to buy into what is sometimes known as the cherry-picking critique: that American judges just go around searching for foreign authority that 76

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supports their own view while ignoring contrary opinions.5 (I examine that objection in detail in chapter 7.) I mean simply that the Court moves from one kind of citation to another without any particular theoretical framework to explain why involving a global consensus is sensible in one case while citing a single foreign legal system or a small cluster of them is sensible in another case. If this is the way we want to invoke foreign law, then the arguments set out in these chapters can be read as offering a framework for retail justification on a case-by-case basis. So in the present chapter, where I argue that we can learn from other legal systems, my argument might be interpreted to mean that sometimes we learn from one foreign legal system, sometimes we learn from a few taken together, and sometimes we learn from the lot of them. And in chapter 5, where I argue the case for consistency or harmony among legal systems, my argument might be interpreted to mean that sometimes local harmony is desirable in some particular areas and sometimes global harmony is desirable in some other area: the argument for harmonization and the character and extent of the consistency that is sought are determined on a more or less retail basis. One does not really need the idea of ius gentium to make sense of any of that. But in each of these two chapters I also present an argument linking the justification for invoking foreign law with the idea of a systematic body of legal principles. So in this chapter, I shall talk not only of courts’ learning from other courts, but also of a body of legal science that stands independently of any particular court (considered either as contributor or drawer) and represents the accumulated wisdom of the law on certain recurrent problems, in much the way that science reflects the accumulated results of experiments in hundreds of different laboratories checking out and building upon each others’ work. Similarly in chapter 5, I shall talk not only of the desirability of harmony among legal systems, but also of the body of principles that represents that harmony—to the extent it has been achieved—that is, the body of principles that are commonly accepted among legal systems and whose claim on us resides partly in the fact that departing from them would disrupt this harmonization. In each case, this further step is a difficult one—difficult to grasp and difficult to argue for. Readers may think themselves satisfied with the more casual account, without pursuing this further characterization. I believe, though, that it is important, for I think that modern courts’ drawing on each other’s work around the world does connect with the venerable idea of ius gentium explored in chapter 2, and I think it would be a pity to miss that connection for the sake of an easier set of arguments.

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2. How Foreign Judges Learn from Us (And from Each Other) Foreign judges evidently believe they have something to learn from their American counterparts. They cite American cases all the time. Here is an example. When Nelson Mandela became president of South Africa one of the first things he did was issue an order for pardon or amnesty freeing all mothers in prison on May 10, 1994, who had children under the age of twelve. John Hugo, being a man, was not eligible for the amnesty, although he met its other conditions: he was serving a fifteen-year sentence and he had an eleven-year-old-son whose mother had died. Hugo complained that the president’s action violated the interim Constitution of South Africa by discriminating against him unfairly on the ground of sex or gender. The matter came to the South African Constitutional Court, and the court had to decide (1) whether this action of the president was judicially reviewable, (2) whether it constituted discrimination against Hugo, and (3) if it did, whether there might be extenuating circumstances that would allow the president’s order to stand.6 The case posed an intriguing tangle of issues: Is something akin to a presidential pardon reviewable for failing to conform to some general standard like nondiscrimination? Can an act of mercy be discriminatory or unfairly discriminatory if the applicant has no right to it, and if, as is clear in a country where male prisoners outnumber female prisoners by fifty to one, an insistence that men and women be treated equally in this regard might well lead to no amnesty at all? Given that women usually occupy a subordinate role in South African families, and given that they almost always have primary responsibility for the upbringing of children, can it really be said that a man is discriminated against by a measure seeking to benefit women prisoners in a specifically family context? If the president’s order is an infringement of the right to nondiscrimination, is it a justifiable infringement in terms of the provision which, in the South African Constitution (as in the bills of rights of many countries the world over), permits rights to be limited by laws of general application, provided such limitation is reasonable and justifiable in a free and democratic society?7 Can an act of amnesty be regarded as a law of general application? And so on. One of the striking things about this list of issues is that on every one of them Justice Richard Goldstone, who wrote for the Constitutional Court, and his fellow judges, some concurring in his decision and some dissenting, referred in detail to the law of other jurisdictions. Their opinions are riddled with references to foreign law. They refer to American, German, Irish,

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Israeli, English, and also other Commonwealth case law on the judicial reviewability of prerogative actions and the power to pardon, charting a sea change in constitutionalism around the world that has brought executive prerogative powers under the supervision of the rule of law. There is extensive discussion of the American position on the presidential power to pardon, including controversies among American judges about the analogies and differences between the presidency and the position of the English monarch so far as prerogative power is concerned.8 The judges refer to Canadian and European authority on the meaning of discrimination and its relation to the value of human dignity, particularly the dignity of groups.9 Justice Johann Kriegler noted in his opinion that although South African constitutional law is not explicitly committed to “levels of scrutiny in the manner of the American Constitution,” much of the logic of American antidiscrimination analysis still applies.10 And several of the judges who considered the application of the reasonable limitation clause cited Canadian cases as authority for the proposition that, despite appearances, the presidential order could be regarded as a law of general application. The outcome was that the Court declined to overturn the president’s decree, the majority (seven judges) because although the measure formally discriminated against Hugo it did not do so unfairly; the presumption of unfairness was rebutted by the fact that men did not suffer by the president’s action the loss of any right or legal advantage to which they would otherwise have been entitled. The Court said, “The Presidential Act may have denied them an opportunity it afforded women, but it cannot be said that it fundamentally impaired their rights of dignity or sense of equal worth.” 11 Three judges thought the decree did constitute unfair discrimination, but one of them argued that, as a general measure, it was nevertheless reasonable and justifiable in an open and democratic society. So in the end there were only two dissenters from the outcome. The fact that the Court devoted so much attention to foreign law should come as no surprise to anyone familiar with its jurisprudence and its constitutional position. Section 35 of the interim Constitution, under which Hugo was decided, lays down that “in interpreting the provisions of this Chapter [that is, the Bill of Rights] a court of law . . . shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law.” That stipulation is continued, too, in the present Constitution, in article 39.12 One might say this puts South Africa in a wholly different position from that of the U.S. Supreme Court: they are explicitly permitted to cite foreign law, whereas there is no such explicit permission in the U.S. Constitution; and if some U.S. Congressmen had

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their way, there would be an explicit prohibition. Still it is worth asking what the reasons are that underlie this permission in the South African Constitution? Do those reasons have any application in countries like the United States that don’t have such an explicit permission? Article 39 does not show that it is inappropriate to consider “comparable foreign case law” in the absence of such a written constitutional permission. Interpretation clauses often are not intended to create anything new but merely to make explicit, for the purpose of removing any doubt, principles of interpretation which may well have been applicable all along.13 Reading the opinions, one gets a sense of the justices using foreign law to get their bearings among a tangle of issues, exploring the options, and considering various possible models of analysis. The tortured diffidence found in Justice Kennedy’s opinion in Roper v. Simmons is absent. In the South African discussion of the reviewability of presidential prerogative power, for example, Justice Goldstone simply says, “Thus far I have considered the issue before us with regard to the text of the interim Constitution. It is instructive also to have regard to developments in other relevant jurisdictions. Traditionally, the exercise of the prerogative powers of a monarch have not been subject to judicial scrutiny. However, over the past two or three decades there has been a movement, in certain circumstances, in favour of the recognition of such a review jurisdiction—and even in countries without a written constitution containing a bill of rights.”14 Then over the next several pages he reviews law in England, New Zealand, Australia, Canada, the United States, Germany, and Israel.15 The result is not blind deference to global currents but a nuanced discussion of the differences between the ways in which various countries participate in this trend. There is a sense that, in these early days of South African constitutionalism, there were a number of difficult questions that have had to be worked through about how to conceive of the presidency, and that a consideration of how the highest executive power was understood in other constitutional democracies can help in this process. There was a sense, too, that this means joining an evolving debate. Constitutionalism is evolving in the world; South African constitutionalism should develop in the context of a “distinct movement in modern constitutional states . . . in favour of recognising at least some power of review of what are or were prerogative powers of the head of state.” And the explicit commitment of the new South African republic to a constitutionalized order ought to put it in the forefront rather than among the grudging laggards of this movement.16 How should Americans regard the willingness of countries like South Africa to consider U.S. constitutional law? It gives the lie to those who complain

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that citing foreign law in the United States means buying into a closed, self-referential world of Commonwealth and European constitutionalism which is starkly at odds with American traditions. These countries appear to learn from America as much as they learn from each other. Justice Scalia’s version of this complaint is more nuanced. For him, the threatening closed world includes some American judges—namely, those who work with the idea of a living, evolving constitution rather than one frozen in time in the norms that the Framers committed to writing. Scalia writes, “American constitutional evolutionism has, so to speak, metastasized, infecting courts around the world. The American Supreme Court’s ‘living Constitution’ now finds its correlative in the Canadian Supreme Court’s ‘living tree,’ and in the pronouncement of the European Court of Human Rights that the Convention it applies must ‘be interpreted in the light of current conditions.’ ”17 Scalia believes that when “foreign courts cite our opinions, and we theirs,” it is a case of constitutional activists around the world backing each other up in what is to all intents and purposes an objectionably liberal enterprise. I think this is wrong. My impression is that courts abroad often cite American cases as a corrective to their own liberal instincts. A recent decision of the U.K. Supreme Court helps illustrate this. In R (on the application of Smith) v. Secretary of State for Defence (2010), the Supreme Court considered whether the British army might be liable under the Human Rights Act for failing to investigate properly the heat-related death of a soldier serving in Iraq. The U.K. court’s decision was that the Human Rights Act might well apply abroad, a decision that many people regard as excessively liberal. But the American authority cited in the case was conservative authority in the other direction: the cases cited involved judicial deference to the executive so far as control of the armed forces was concerned: “In the United States the conduct of military operations is ‘so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference’: Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952). See Arar v. Ashcroft, 585 F 3d 559, 590 (2d Cir 2009).”18 This is not an example of a liberal European judge citing to his activist counterparts in America. Or consider R v. Williams, a decision of the Supreme Court of New Zealand in 2009.19 The case concerned the effect of delay in bringing serious drug offenders to trial. Though the court found that the delay was excessive, it cited U.S. Sixth Amendment jurisprudence to support its conclusion that a stay of prosecution should not be granted.20 Again, hardly a case of liberal activism infecting courts around the world. Of course there are cases in which courts abroad have given weight to controversial liberal precedents from the United States. But in most such

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cases, as in the citation of the conservative American decisions, the discussion pays evenhanded attention to the controversies, trying to disentangle the illuminating issues that (whether Justice Scalia likes it or not) have arisen in American constitutional doctrine. I have heard some American legal scholars say that it makes sense for other countries to borrow from our constitutional jurisprudence because it is so advanced.21 What Hugo shows, they would say, is that a brand-new constitutional republic like South Africa has a lot to learn from the way Americans have grappled with certain issues over the centuries, issues they are barely beginning to come to terms with. Even much older states, like Britain, may have things to learn from two centuries of constitutional experience in the American republic, because Britain is only beginning to develop the institutions of constitutional and rights-based review (under the Human Rights Act, for example) that Americans have taken for granted for generations. We should not therefore expect much trade in the other direction. America is a forerunner in constitutional analysis and does not take lessons from those who are haltingly following its example. If they wanted to be particularly provocative, proponents of this view might say that we in the United States have evolved a complex, articulate body of rights jurisprudence which in most of its features is the envy of the world. We are much better off making that available to other legal systems in our own straightforwardly American judicial opinions than in contaminating it with cruder impulses of liberal European jurisprudence. But even if this is true of many areas of U.S. law, it is unlikely to be true of all of them. This line of argument about American superiority may help explain the appearance of cherry picking that Justice Scalia drew attention to in Roper v. Simmons: the justices who cite foreign law seem to do so in some cases but not others; they don’t cite it on questions of abortion, or the exclusionary rule, or church/state separation.22 Perhaps the best explanation is that these are not areas where we need help from abroad. But in other areas we evidently do. If the argument for the invocation of foreign law is a learning argument, then it is not going to be content-neutral; it is not going to support the proposition that there is something to learn in every area of law or from every foreign precedent.

3. The Casual Version of the Learning Argument The argument that there is something to learn from foreign law is the one most commonly cited in the literature. It is prominent in reflective comments given on speech days by those justices of the U.S. Supreme Court

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who are interested in discussing this aspect of their practice. Former Justice Sandra Day O’Connor has given strong and persuasive voice to this argument. She believes “there is much to learn from other distinguished jurists who have given thought to the same difficult issues we face here.”23 She says that “other legal systems continue to innovate, to experiment, and to find new solutions to the new legal problems that arise each day; they offer much from which we can learn and benefit. . . . Our flexibility—our ability to borrow ideas from other legal systems—is what will enable us to remain progressive, with systems that can cope with a rapidly shrinking world.”24 Justice Ruth Bader Ginsburg tells us that “foreign opinions . . . can add to the store of knowledge relevant to the solution of trying questions.”25 She has also argued that “we are the losers if we do not both share our experience with, and learn from others.”26 Justice Breyer has spoken of “the enormous value in any discipline of trying to learn from the similar experience of others.”27 The practice of citing foreign law, he has said, “involves opening your eyes to what is going on elsewhere, taking what you learn for what it is worth, and using it as a point of comparison where doing so will prove helpful.”28 And one of the newest U.S. Supreme Court justices, Sonia Sotomayor, observed (though not at her confirmation hearings), “Ideas are ideas and whatever their source, whether they come from foreign law, or international law, or a trial judge in Alabama . . . if it persuades you . . . then you’re going to adopt its reasoning. If it doesn’t fit, then you won’t use it.”29 It is hard to disagree with any of this. But it is hard, too, to see that it really gets to the heart of the matter. The argument from learning is sometimes acknowledged by opponents of the Supreme Court’s use of foreign law. Justice Breyer told an audience at New York University that he once said to a U.S. congressman, “If I have a difficult case and . . . a judge, though of a different country, has had to consider a similar problem, why should I not read what that judge has said? It will not bind me, but I may learn something.” Apparently the congressman replied, “Fine. You are right. Read it. Just don’t cite it in your opinion.”30 But that is inappropriate. It is important for judges to be open about the reasons they use.31 The transparent citation of reasons for arriving at a decision is one of the most important aspects of adjudication—not least because it enables counsel appearing before a court to know what sort of arguments they should make and to be sure that their arguments are being listened to and addressed by the tribunal in its deliberations.32 Judges, in short, can learn from their foreign counterparts. If we leave it there, however, we haven’t got very much further than the vague idea of continuing judicial education. No doubt judges can learn things from lots of

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places; the potential sources of insight and understanding are unlimited. They can probably learn something from Harry Potter. But an argument for the use of foreign law, one capable of answering the ferocious attacks this practice has elicited, ought to be a little stronger, a bit more specific—and a little more legalistic—about what exactly it is that courts are supposed to be learning from their foreign counterparts. A defense of the use of foreign law ought to be a little more reflective, too, on the relation between this process of learning—if that’s what it is—and the underlying philosophy of law and legal reasoning. The anodyne remarks of most of the judges I have quoted do not go very far in that direction. I want to offer a version of the argument about learning from others that is slightly less casual than that. Judge Posner said at the end of an on-line article on the issue of judicial learning, “I do not suggest that our judges should be provincial and ignore what people in other nations think and do. Just as our states are laboratories for social experiments from which other states and the federal government can learn, so are foreign nations laboratories from whose legal experiments we can learn. The problem is not learning from abroad; it is treating foreign judicial decisions as authorities in U.S. cases, as if the world were a single legal community.”33 Posner wants to separate the question of learning from the question of authority. I suspect many of the judges I have quoted would be willing to acquiesce in that desire. They will say that to learn from a foreign case is not really to treat it as a precedent. If it has any authority, it has only persuasive authority, that is, only the authority that the persuasiveness of its reasoning carries for us. I noted earlier, however, that “persuasive authority” has two senses. I have just mentioned one of them; the other is the idea of a precedent or line of precedents having some weight, though not binding weight, in a way that is not reducible to the immediately apparent force of its reasoning. (I said in that section that when Commonwealth courts refer to English decisions or to each others’ decisions, they treat them as persuasive authorities in both senses, not just the first.) Herein lies a challenge: Is there a version of the argument about learning from others that would explain the persuasive authority of foreign law in the second sense as well as the first? Is there a version of the argument about learning from others that can explain a judicial obligation to take the reasoning of others at least as seriously as—and, if there are many others, sometimes more seriously than—one takes one’s own? I think there is, but I am going to come at it slowly. I will first consider some arguments about the possibility of learning something from the sheer weight of numbers associated with a certain principle. Then I will consider what can be learned from the detailed contents of particular opinions. But

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the main argument I want to make is in sections 6 and 7, where I want to suggest an analogy between legal method and scientific method and the possibility that what we learn from other jurists is rather like what an individual laboratory may learn from the weight of scientific results so far.

4. Outcomes or Holdings? The Force of Numbers The idea that courts can learn from their foreign counterparts sounds all very attractive, but is this what courts actually do? In Roper v. Simmons there didn’t seem to be much in the way of learning. It was more a matter of nose counting, the Court conducting a simple statistical survey of which countries, besides the United States, rejected the juvenile death penalty. As one critic put it, Roper does not read like a case in which the Court looked abroad hoping to “learn something.” . . . Justice Kennedy’s discussion of foreign law is all about noses, not reasons. It begins with “the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty” . . . and observes that “only seven countries other than the United States have executed juvenile offenders since 1990.” The only country discussed in any detail is the United Kingdom. Again, the point is simply the fact of abolition; no inquiry is made into why the United Kingdom might have taken such a step. . . . This lack of interest in the reasons underlying foreign practice is characteristic of the Court’s employment of foreign law. The Justices are not searching foreign court opinions for innovative doctrinal formulae or new arguments.34

Roper merely accumulates simple bits of legal information: “The aggregated information approach collects jurisdictions that adhere to a particular position, aggregates them into a larger total, and uses numerical consensus to indicate the validity of the widely held position.”35 But it is quite unclear how the aggregate is supposed to teach us anything. Cases like Roper that involve nose counting are possibly better justified under the auspices of the argument from consistency or integrity (see chapter 5). Maybe for genuine learning to take place, courts have to pay attention to the reasoning behind foreign legal positions, not just to the fact of the law being thus-and-so in certain other countries. I am not sure this is always the case. Sometimes becoming acquainted with the stark reality that one is an outlier in the world or part of a tiny, disreputable minority can administer a salutary epistemic jolt, and I suspect that was Justice Kennedy’s intention in his nose counting on the juvenile death penalty. And

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sometimes, as in Lawrence v. Texas, attention to foreign law in a more or less nose-counting spirit can provide the information necessary to refute an adversary’s claim, such as that most countries have laws prohibiting homosexual activity or to support the claim that homosexual law reform is common around the world.36 Cass Sunstein and Eric Posner have made a valiant attempt of a different kind to reconcile Ernest Young’s observations about nose counting with the possibility of epistemic benefits from recourse to foreign law. In an article published in the Stanford Law Review they invoke Condorcet’s jury theorem, arguing that our justices may be more likely to get to the right answer in some difficult case if they follow the lead of a majority of foreign courts who have reasoned independently to the same result than if they try to figure it out by themselves.37 According to Condorcet’s jury theorem, the greater the number of individuals sampled on an issue, the more likely it is that a majority of them is right about the issue (provided that the individuals are, on average, more likely to be right than wrong.)38 Sunstein and Posner suggest that we might be justified in consulting large numbers of foreign courts to secure a more reliable opinion on a given issue than any one court, including ours, could come up with on its own. On the Condorcet approach, the only things that matter are the votes of the foreign courts; we don’t care about their reasoning, provided only that we have some assurance that the average foreign court is more likely than not to get the right answer. That is the Condorcet arithmetic.39 It is an intriguing application, though, as an opponent of judicial review, I cannot resist saying that if one wanted to follow the Condorcet arithmetic, one might hesitate about having these matters decided by courts in the first place. We already have large numbers of people voting on these issues in legislatures, and, unless we are savagely pessimistic about democratic competence, we should expect majority voting among hundreds of legislators back home to be more likely to yield good result than a majority of the decisions of few dozen courts.40 As a matter of fact, by the time you get anywhere near the hundreds, the Condorcet arithmetic starts to give you a statistical certainty of the right result. In any case, I doubt that the Condorcet approach is going to convince very many of the skeptics about the invocation of foreign law. Those who know the Condorcet arithmetic will match their own concerns about foreign courts (especially in Europe and the Commonwealth) automatically reinforcing each other with the failure of Condorcet’s condition of the independence of the decisions of the individuals or individual institutions being counted.41 Also, critics of the citation of foreign law may not accept that

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foreign courts are, on average, more likely than not to get it right about important constitutional issues—which is a crucial presupposition of Condorcet’s theorem. (If it fails, the Condorcet effect goes into reverse.) However, they may think that foreign decisions share other attributes which the Condorcet arithmetic can magnify: Justice Scalia believes, for example, that the foreign courts most likely to be referred to by American judges are those that adopt a “living tree” approach to constitutional interpretation. If a given citation to a foreign judgment is more likely than not to be of this character, then a majority of a large number of such citations is overwhelmingly likely to have that character. That again is the effect of the Condorcet arithmetic. After all, the jury theorem is utterly mechanical; it has nothing inherently to do with truth. It simply says that if the individual members of some set have a better-than-average probability of being X, then the probability that a majority of them is X is much higher again than that. X may stand for “true” in this arithmetic, but it may also stand for “excessively liberal,” “effete,” “long-winded,” “obtuse,” “unlikely to prove acceptable to Americans,” and so on. A different, less mechanical approach to the aggregation of knowledge is Aristotelian in character. In book 3 of the Politics, Aristotle argues, in effect, that many minds and many bases for perception are better than a few and that consideration of the “wisdom of the multitude” provides a good justification for some of the inclusiveness of Athenian politics: For the many, of whom each individual is not a good man, when they meet together may be better than the few good, if regarded not individually but collectively, just as a feast to which many contribute is better than a dinner provided out of a single purse. For each individual among the many has a share of excellence and practical wisdom, and when they meet together, just as they become in a manner one man, who has many feet, and hands, and senses, so too with regard to their character and thought. Hence the many are better judges than a single man of music and poetry; for some understand one part, and some another, and among them they understand the whole.42

The logic is that of a potluck dinner. Each person brings something different to the feast, and in a political setting each person brings to the political deliberation of the whole diverse experiences, insights, and general knowledge. Aristotle did not apply his argument to the problem at hand; he did not use it for appealing to opinions and experience from abroad. But in a sense the argument relies on the fact that members of a community will have differing experiences of the world, and all these experiences may be relevant to the decision that has to be made.

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The argument is effectively against aristocracy. It does not deny the existence of great disparities in knowledge and quality of reasoning among a given population. But it suggests that often a polity will do better to entrust a decision to the multitude than to the smartest individual or clique among them—the people, acting as a body, being capable of making better decisions by pooling their knowledge, experience, and insight than any individual member of the body, however excellent, is capable of making on his own. This might be an interesting response to the suggestion, considered earlier, that well-established, experienced constitutional courts have little to learn from younger, less experienced ones.43 That may be true one on one, but nevertheless the more experienced court may learn something from an array of less experienced judiciaries when their accumulated experience is taken into account. Aristotle applies “the wisdom of the multitude” to a number of institutional settings and, interestingly, he applies it to judges when they have to deal with matters that cannot easily be covered by general laws: “Matters of detail about which men deliberate cannot be included in legislation. Nor does anyone deny that the decision of such matters must be left to man, but it is argued that there should be many judges, and not one only. For every ruler who has been trained by law judges well; and it would surely seem strange that a person should see better with two eyes, or hear better with two ears, or act better with two hands or feet, than many with many.”44 We might imagine the argument being used to favor large-sized courts at the appellate level (and I have suggested elsewhere that it helps explain our constitutional instinct for large legislative assemblies, usually one or two orders of magnitude larger than the size of the highest court in a given polity).45 But numbers themselves are not the key. What Aristotle’s argument presupposes is a diverse polity: it won’t work if the basic opinions and experience of the population are the same. From my point of view this is quite important. Paying attention not just to judges socialized in America but also to judges socialized elsewhere increases the range of available information, experience, and insight, though at the same time it increases the difficulty of sifting and synthesizing that material into a reasonable deliberative conclusion. The Aristotelian argument does not have the simple arithmetical logic of the Condorcet theorem: it does not generate any continuous improvement in the quality of output based on a linear increase in the number of persons contributing inputs. I doubt whether one can say very much more than what I have said about the application of sheer numbers to the problem we are dealing with. The Aristotelian argument for “the wisdom of the

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multitude” is best understood as a sort of archetype for learning by sampling a larger, more diverse pool of experience and insight. For my purposes, perhaps its most important implication is to move us away from a nosecounting approach that looks only to the accumulation outputs of the courts from which we are supposed to learn to an approach that pays attention to the innards of each output, that is, to the opinions and reasoning that accompany the decision, with a view to synthesizing that reasoning into a superior position for ourselves.

5. What Sort of Information Is Available? When Justice O’Connor said, in the address I quoted earlier, “There is much to learn from other distinguished jurists who have given thought to the same difficult issues we face here,” I think she meant that we can learn from the ways in which they have wrestled in their opinions with difficulties similar to our own, not just that we can learn from what they decided.46 Now, there are all sorts of things that go into a judicial opinion: concepts, insights, empirical evidence, doctrinal tests, lines of argumentation, rules, principles, the weighing of principles, the citation and weighing of precedents, interpretive strategies, moral values, and so on. What category of knowledge is supposed to be accessible by recourse to foreign law? To use a postmodern barbarism, what is the episteme of the citation of foreign law? Is it that we can gain empirical insight? I am not sure. In Roper v. Simmons the decision was based in large part on certain propositions in social psychology, to the effect that young people have an underdeveloped sense of responsibility that often results in impetuous, ill-considered actions and decisions; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and the character of a juvenile is not as well formed as that of an adult. “These differences,” as the Court said, “render suspect any conclusion that a juvenile falls among the worst offenders,” which is the conclusion constitutionally required for the application of the death penalty.47 As Young points out, however, the Supreme Court of the United States did not need to learn all that from its British or French counterparts; the justices already knew it because Kennedy had set it out at the beginning of his opinion, long before he got to the issue of foreign law.48 But sometimes the material on which courts need to rely is not available locally. In Washington v. Glucksberg (1997), Chief Justice Rehnquist drew heavily on Dutch experience with a scheme of legalized euthanasia to establish the regulatory challenges that surround this practice and to argue against simply blundering into this area with judicial fiat.49 Sometimes it is

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suggested that we can learn some truths of political science, truths relevant to our Constitution, from the experience of other countries with either similar or dissimilar structures. Vicki Jackson cites the concurring opinion of Justice Robert Jackson in Youngstown Sheet & Tube Co. v. Sawyer (1952) as an example.50 Jackson’s view was that the experience of other nations with emergency powers “may not be irrelevant to the argument” that needed to be made in the Youngstown case:51 In the two-page discussion that followed, Justice Jackson examined German, French, and British history and constitutional practice in the period leading up to and during World War II. First, he described how the Weimar Constitution in Germany . . . permitted the President of the Republic, without the concurrence of the national legislature, to declare a state of emergency in which all individual rights could be temporarily suspended. That power, as Justice Jackson described it, “proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored.” Second, Justice Jackson explained that the law of the Third French Republic in the period before World War II provided for a very different kind of emergency known as the “state of siege.” As Jackson described the “state of siege” under the Third French Republic: “It differed from the German emergency dictatorship, particularly in that emergency powers could not be assumed at will by the Executive but could only be granted as a parliamentary measure. And it did not, as in Germany, result in a suspension or abrogation of law but was a legal institution governed by special legal rules and terminable by parliamentary authority.” These features of parliamentary involvement in the declaration of a “state of siege” and of the parliament’s retaining the power to terminate the state of siege were analogous to features Justice Jackson stressed in describing Great Britain’s constitutional practice. Great Britain, Justice Jackson continued, had fought both world wars under what he called a “temporary dictatorship created by legislation.” As Parliament is not bound by written constitutional limitations, he wrote, “it established a crisis government simply by delegation to its Ministers of a larger measure than usual of its own unlimited power, which is exercised under its supervision by Ministers whom it may dismiss.” Quoting Winston Churchill, Justice Jackson noted that Britain’s war-time crisis government “has been called the ‘high-water mark in the voluntary surrender of liberty,’ but, as Churchill put it, “Parliament stands custodian of these surrendered liberties, and its most sacred duty will be to restore them in their fullness when victory has crowned our exertions and our perseverance.”52

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But this is hardly what is meant in the modern debate about the use of foreign law. Even Judge Posner accepts something like this. I said earlier that in his excoriation of the citation of foreign cases as precedents, he is quick to point out that he is not suggesting “that our judges should be provincial and ignore what people in other nations think and do. Just as our states are laboratories for social experiments from which other states and the federal government can learn, so are foreign nations laboratories from whose legal experiments we can learn.”53 In the case we have just considered, Justice Jackson was not citing foreign precedents. He invoked foreign law solely for the purpose of determining how well various constitutional arrangements worked to safeguard basic constitutional values. He was doing almost exactly what Posner suggests judges should do in difficult cases: draw upon contemporary social science.54 As Vicki Jackson points out, much of Justice Jackson’s information came from Clinton Rossiter’s book Constitutional Dictatorships: Crisis Government in the Modern Democracies (1948). And that surely is what one wants. Even accepting, as I think most legal scholars do, that constitutional interpretation sometimes involves the evaluation of structural alternatives, empirical information about the social consequences of real-world structures can hardly be gleaned simply from a survey of foreign law. What one needs is political science analysis or an old-fashioned law-and-society analysis, of the sort Rossiter provides. I suspect that this sort of use of foreign law is not something that anyone wants to oppose. Or at least that’s what I would have thought. Justice Breyer took an approach similar to Justice Jackson’s in his dissent in Printz v. U.S., a federalism case from 1997.55 Breyer suggested that we can learn something about the effects of law from considering foreign experience: “Of course, we are interpreting our own Constitution, not those of other nations, and there may be relevant political and structural differences between their systems and our own. . . . But their experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem.” For example, we go around saying things about the relation between federal structure and liberty. Wouldn’t it be worth looking, said Justice Breyer, at foreign experience of alternative federal structures to see what the different consequences for liberty actually are? Basil Markesinis and Jörg Fedtke have offered a similar suggestion in their book Judicial Recourse to Foreign Law.56 The chapter of their book entitled “When should such dialogue take place?” has subsections called “When foreign experience . . . help[s] disprove locally expressed fears about the consequences of a particular legal solution” and “When the foreign law provides ‘additional’ evidence that a proposed solution has ‘worked’ in other systems.” I don’t

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recommend the book, which is basically just a list of cases, but the general point sounds reasonable. However, Justice Scalia criticizes the use of this sort of evidence. It is, he says, more relevant to the task of drafting a constitution than to the task of interpreting the constitutional scheme which, on Scalia’s originalist account, Americans are simply stuck with.57 That might seem a valid criticism, granted its originalist premise, if one thought that the Framers left nothing unclear in their design or nothing whose application to twentiethand twenty-first-century conditions was unclear. But assuming this is not the case, at least for some important issues, it seems sensible (sensible even from an originalist standpoint, if that is not a contradiction in terms) to consider, when choosing between several plausible interpretations or applications of the Framers’ scheme, how the various alternatives would serve the Framers’ deeper values. We may in some cases have the Framers’ own views on this to draw upon. Or we may not. If we don’t, we have no alternative but to speculate—and we can do so in an informed or in an uninformed manner. It does not seem to me to follow from the originalist methodology that we are required to eschew such information as is available in the world to inform these unavoidable speculations. Of course there are further difficulties in evaluating the political science evidence. Judges are not trained to do this, and those who are trained usually disagree with one another in their conclusions. Vicki Jackson points out a number of regards in which the analysis by Rossiter, which Justice Jackson drew on in the Youngstown case, has proved controversial.58 So care is necessary in dealing with this foreign material. Still, that is hardly a reason for not doing the best one can. Besides empirical information and analysis, what else can be learned from the reasoning in a foreign decision? Is there a moral episteme underlying the use of foreign law? Are we supposed to be able to glean some new moral insight from a foreign precedent? For example, did the Court in Roper learn something about the abhorrent nature of the juvenile death penalty from its survey of the abolition of that practice the world over? Probably not. The pros and cons were pretty well known in the United States already, although I guess it is salutary to be reminded of the ferocity with which the death penalty is condemned in other jurisdictions. Many of the issues on which the invocation of foreign law has been most controversial are issues on which the underlying moral stakes are fairly well settled in American debate, and positions are ferociously defended on both sides, with little prospect that moral insights gained from abroad are going to change or even complicate anyone’s moral view.

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Still, I am mindful here of what I said in chapter 2. Moral insight does not derive only from armchair philosophic reasoning: Posner pointed out in The Problematics of Moral and Legal Theory that moral philosophers are usually the last people one should turn to for serious insight into the problems facing the nation.59 On issues on which people’s minds are not already made up or issues on which they are open to further leavening of their opinions with some degree of humility or complication, information about views held elsewhere in the world may be very helpful. This is particularly the case where a view is held firmly but not necessarily deeply—often held firmly because one has never seriously contemplated the possibility that others disagree. For example, in the capital punishment debate most Americans seem to believe that life imprisonment without parole is a humane alternative punishment. Death penalty opponents probably say this because they think it is impossible to argue against capital punishment in the United States on any other basis; and defenders of the death penalty probably think that life without parole coddles the convicts who deserve to face execution at the hands of the state. In my experience, most Americans are not aware that most other countries adamantly oppose life without parole as a punishment for murder, certainly as a punishment for juveniles. They see that too as a violation of human rights.60 There is some learning to be done here, if not about moral truth itself, then about the nature and prevalence of certain moral attitudes which are quite strikingly different from our own and about the significance of the disparity. Again, the argument is not that we should simply fall into line with a global consensus. But awareness of difference can sometimes be the beginning of wisdom, if only because it is an occasion for deeper consideration of what were previously firm, but largely thoughtless, convictions. However, in my view, the most interesting understanding of the episteme involved in our courts’ use of foreign law is not empirical information, not general public policy, not even moral philosophy (pure or applied). It is, rather, a specifically legal episteme: we stand to gain in terms of our acquisition and manipulation of specifically legal knowledge, knowledge of legal analysis. That is what I want to focus on for the rest of this chapter.

6. Analysis: The Right Way, the Wrong Way, and the Legal Way There is a saying in military circles when dealing with a problem: there’s the right way to deal with it, the wrong way, and the army way. In public policy circles, it might be said that there is a right way and a wrong way of dealing with a given problem, and in addition there is the legal way. Lawyers

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have their own particular approach. It is not primarily empirical, though it leaves room for the insertion of empirical information at various points. Neither is it just moral argument or advocacy. It is a method of analysis: taking an issue apart and reformulating it step by step as a series of conditions and tests that apply various nested, interlocking, and sometimes competing principles. To illustrate this with a very crude and probably unfair example: If we are considering how murder by juveniles is punished in the world, I can imagine someone saying, waggishly, “Well, there’s the Texas way, the retributive impulse to ‘string ’em up’ as soon as possible after they reach the age of majority. And there’s the Dutch way, which is the impulse to put the offenders in a motel-like facility with occupational therapy and philosophy classes for a few months and then restore them, hopefully rehabilitated, to society.” And then there is the legal way. It doesn’t matter much whether the judge who exemplifies the legal way comes from the Netherlands or Texas or anywhere else; he will quickly disclose his training as a lawyer, and he will be recognizable as such to other lawyers from all over the world. Put this problem of the punishment of adult offenders for crimes they committed when they were juveniles in front of him and he will carefully take apart the issue, separating the application of various principles from one another and laying out in some logical order a series of hard, interlocking, and quite abstract questions about the nature of culpability, the use of bright lines, such as age of majority, the different functions of adult and juvenile courts, the in terrorem effects of being tried as an adult, the purposes of punishment, the rights of victims and their families, the impact of punishment on a young person, particularly in the way it relates individual action to outcomes over the course of a whole life, the connection between the mental element in culpability and the capacity to foresee the long-term impact of punishment, the purpose of having an array of penalties from the least to the most severe, and the nature and safeguards of whatever accompanying discretion might be vested in a court. He will lay all that out and try to figure a way through the maze of these articulated issues. Something like this sort of analysis is typical of lawyerly thinking and lawyers’ mentality the world over. We recognize someone as a lawyer as much by his use of this method as by his citation of codes, statutes, and precedents, though normally we would expect to see both. No doubt lawyers from different jurisdictions would work through the issues I have mentioned in a different order, with a different structure; some elements might be omitted and others included, depending on the features of their legal system.

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They will be guided by the formal elements of their code or by the doctrines that emerge from the precedents they study. But, one way or another, this is what lawyers’ reasoning is like. A lawyer, when he confronts a problem, tries to anatomize it, uncover its underlying structure and the order in which the issues entangled in the problem are best addressed. In this they are encouraged by the lawmakers whose activity they are necessarily responding to. For example, their mode of analysis matches what drafters of statutes do when they are writing legislation to address a difficult problem. Legislators don’t simply say, “Do this” or “Don’t do that.” They identify an array of considerations under which conduct, described in a certain way or having certain characteristics (mental, physical, and circumstantial), is to be regarded as prohibited or obligatory. Having laid down a rule in that complex form, they might also identify certain exceptions, which may also be complex in character. Then the statute will stipulate consequences that are to attach to the doing of what is prohibited (with these characteristics, in these conditions, and absent these exceptions), consequences which will have a procedural as well as a substantive aspect. In these ways, a provision of positive law offers a template for analyzing a messy situation. The idea is that each element of statutory complexity corresponds to some important piece of the behavioral or situational jigsaw, so that analyzing a real-world problem in the way the statutory template indicates is not just a way of falling into line with the law; it is also a way of guaranteeing that the things identified and ordered in the analysis are important elements and are dealt with in the structure in an appropriate order of priority. As I say, this methodology is apparent in complex statutory provisions; but it is apparent also in common law doctrine and in the tests and elaborations that courts, responding to their own estimations of what is important, add to the statutory language to make it capable of dealing adequately with situations that, whether the drafters foresaw it or not, have to be dealt with under the auspices of the statutory analysis. In some circles all this is controversial. Some jurists say we lawyers and judges should abandon any pretense of a distinctive and autonomous analytic method for our profession.61 They think we should retool ourselves and move to something more like direct public policy advocacy or economic or social analysis. For anyone in this category, what I am saying will be unconvincing. For them, the learning that takes place when American judges consult foreign sources can only be empirical or public policy learning. It cannot be anything distinctively legal. And certainly one would not want to push the line I am taking too far. Though I have in mind

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specifically legal learning, I am not predicating my argument on the resurrection of Langdellian doctrinal formalism.62 If we are summoning up the idea of a legal episteme and imagining judges taking lessons in it from one another across jurisdictional lines, we must show that this episteme is not simply a word game or an unreal “heaven of concepts,”63 that we are not just teaching one another new ways of “trapezing around in [abstract] cycles and epicycles” without coming down to earth on any meaningful grounding.64 I actually do think there is substance in what I am calling the lawyerly approach, in this way of analyzing and unpacking issues that lawyers learn from and that they can recognize in one another and help one another with, even when they come from different countries. What I have called the legal way involves analysis and abstraction; but it is not analysis undertaken for its own sake or abstraction just because we are comfortable with high-flown words. The abstract analysis, unpacking or disentangling of complex problems and then their reconstitution or synthesis into an orderly series of clear questions—all of this has a point. It helps us pursue issues of consistency and fairness, so that we abstract away from superficial characteristics and deal with deeper and less obvious similarities or differences between one case and another. We do this because we think issues of fairness are important even when they are not obvious, and when there are multiple issues of fairness it is important that they be dealt with in a systematic way. I think the method of analysis and abstraction is also important from the point of view of justice. When we take a messy, complex situation and try to unravel the separate lines of principle involved, we are pulling threads and following leads that involve clear identification of the reasons law associates with justice. Clear analysis and explicit identification of issues is a way of being scrupulous in our attention to the reasons that law associates with the just rather than unjust disposition of cases like the one I am considering. I don’t mean that the law that gives us these categories is always just. But it presents itself as aiming at justice, and it presents the methodology it commands as a way of being maximally responsive in a systematic way to the considerations it regards as central to the justice of the matter.65 The two points connect with one another. When we say it is important to treat like cases alike, we mean by “like” the similarities that seem important or have seemed important to the law in the past in regard to the just disposition of cases like this. And so our alertness to relevant similarities and differences is governed by principles of justice and is focused on what real individuals might have at stake in the issue, which justice requires us to take into account. It is not consistency for its own sake that we are looking for, the

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consistency that might require us to dispose of the one dilapidated, abandoned house on the same basis that we disposed of another. It is fairness to people that is at issue. We want cases disposed of consistently because we want to be fair to the individual persons involved; it is their stakes in the matter that command our attention, and it is the questions of justice that are entangled in their legal positions that our analytic lawyerly method is trying to unravel.66 Legal and political philosophers used to envisage a sort of science of law that involved analysis of this kind. In the work of the late seventeenthcentury philosopher Gottfried Leibniz, for example, legal science was envisaged as a deductive enterprise on the model of geometry.67 It was supposed to be a science of reasons, reasons pertaining to justice and human happiness.68 These reasons served as axioms, and then theorems would be developed indicating the way in which reasons of justice and happiness interacted in various kinds of motion, interrelation, transaction, and conflict. The theorems in turn could be applied to determine in advance an outcome for all potential case combinations, and this would be the basis of a logical and comprehensible scientific code: “Law could now be seen as transcending the whim of an individual judge or confused case-law.”69 Both in theory and in practice law involved “the application of logic and reason to first principles, and so long as the reasoning was sound, proper results would always follow. Instead of being a set of irrational positive rules to be learned by rote and applied by whim, law became a rational science.”70 As Leibniz put it, “The whole of judicial procedure is a kind of logic applied to questions of law.”71 A similar aspiration is found in Immanuel Kant’s “science of right” in The Metaphysics of Morals. There, the philosopher intimated a sort of algebra of freedom with a system of law aiming to secure the greatest possible freedom to each, over the array of complex circumstances in which humans interacted, compatible with an equal freedom for all.72 The idea was that with a clear analysis of the freedom-related and freedom-impacting dimensions of typical issues concerning property, contract, or criminal law, one could try to solve these equations and draft laws that would realize the highest possible values of the freedom of the individual. Generations of neoKantian thinkers in the nineteenth century took this science of freedom very seriously in their jurisprudence. We are less confident about this algebra today, though we do still quite often use the formula of the greatest freedom for each compatible with a like freedom for all.73 The philosophers perhaps took the analytic aspiration to an extreme. But working lawyers and judges aspire to some informal version of this in

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their conception of an enlightened legal system. They too want the law to be comprehensible, and for them that involves sorting out difficult problems by analyzing their elements and matching that analysis to the terms and categories provided in an intelligible set of legal principles. This was not always seen as an easy matter, accessible as a matter of course to an untrained mind isolated from an intellectual community. Rather than attempt it on their own, jurists would often have recourse to the history of legal science’s grappling with a given problem. They would try to relate this attempt to analyze some particular conundrum with the attempts to grapple analytically with similar problems in the past. In this way the theme of analysis is connected to the themes of ius gentium and ius commune discussed in chapter 2. Lawyers and judges did not just analyze issues on their own; they stood in the company and on the shoulders of others who had brought the same aspiration to similar problems in the past. And ius gentium was not just a set of rules; it comprised principles that would draw our attention systematically to the reasons of justice, freedom, and human happiness that were tangled together and sometimes partly obscured by one another in some problem of property, contract, or delict. Even in common law countries, lacking the benefit of a codified tradition, jurisprudence is replete with examples of this methodology. We have seen it at work in President of the Republic v. Hugo, where South African judges drew on American jurisprudence to help them analyze difficult problems of discrimination. Americans pioneered that sort of analysis, and other countries follow their lead. Nor is it just a modern phenomenon. In an article entitled “There Is a World Elsewhere,” T. H. Bingham discusses historic examples in which something similar happened as between English and Continental sources: I can point to the celebrated speech of Francis Hargrave in the great case of the slave Somersett, ranging as it did not only over such English authorities as Blackstone, Coke, Glanville and Fitzherbert, but also over authorities such as Justinian, Grotius, Pufendorf, Bynkershoek and Stair, and practice among the Jews, the Greeks, the Romans and the ancient Germans, with appropriate reference to Spain, Portugal, America, Holland, Scotland, France, Poland, Russia and Turkey. I can point to that great flower of common law jurisprudence, Baron Alderson’s formulation in Hadley v. Baxendale of the rule governing the measure of damages in contract, and confidently trace the unacknowledged ancestry of that rule to the American author Theodore Sedgwick, whose Treatise on the Measure of Damages was published in New York in 1847 and was itself based on the

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Napoleonic Code; from the Code the rule laid down can be traced back through Pothier, French authorities of the sixteenth and seventeenth centuries, medieval doctors of the law and Justinian to the classical Roman jurists.74

The impression one gets from Lord Bingham is that judges do not arrive at doctrinal rules simply on the basis of their own speculations about justice or efficiency or by reference to some immediate forbear or framer in their own legal system. They arrive at them by drawing down on a centuries-long and civilization-wide tradition of analyzing and thinking through difficult problems that are likely, in one form or another, to be faced by judges and lawyers again and again in time and in space around the world. Oliver Wendell Holmes famously remarked, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV,” especially “if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”75 But that is not what Lord Bingham has in mind when he traces the rule in Hadley v. Baxendale back to French authorities of the sixteenth and seventeenth centuries and to medieval doctors of the law or when he traces the reasoning in Somerset v. Stewart, which, by the way, had an immense influence in antebellum America, back through authorities like Lord Stair, Samuel von Pufendorf, Grotius, and Justinian.76 The judges in those cases did not blindly imitate their juridical forbears but followed lines of reasoning that their juridical forbears had pioneered. They did this because they didn’t believe it was possible to grapple with these issues using their own resources. The most clearsighted of them, even when they possessed an adequate way both of looking at a problem and of solving it, understood that this was the work of generations, not just of their own personal intellectual capacity or their local legal resources. Some might be tempted to minimize what they owed to others in this regard. But as John Locke put it in another context, “He that travels the roads now, applauds his own strength and legs that have carried him so far in such a scantling of time; and ascribes all to his own vigor; little considering how much he owes to their pains, who cleared the woods, drained the bogs, built the bridges, and made the ways passable.”77 To sum up, it is not so much empirical facts or moral insights or attractive reform proposals that jurists glean from others’ judgments or from a worldwide legal consensus. They learn ways of analyzing difficult problems—modes of specifically legal analysis which relate the elements of a problem to the basic reasons of justice and public welfare with which the law is concerned. They learn how others do this with difficult problems, and

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they seek to replicate or elaborate that analysis in facing difficult problems of their own.

7. An Analogy with Scientific Consensus I have long been intrigued by what might be called the cosmopolitanism of scientists,78 that is, the way scientists talk about what we know or what we think we have established, where “we” doesn’t mean just the scientist concerned and his or her friends and colleagues in the laboratory, but the community of scientists the world over, understood collectively. We think the big bang happened some ten or twenty billion years ago, but there are one or two inconsistencies in the theory and some observational anomalies we haven’t figured out. We have a pretty good account of what causes AIDS and of how to mitigate its progress, but we don’t have anything in the way of a vaccine. The “we” always refers to the consensus of the community of scientists in the world, scientists who read the same literature, who are aware of one another’s findings, who check and recheck one another’s results, and who grapple with research problems in roughly the same terms. It is a wonderful notion, not least because it involves a cosmopolitan idea of community, a civilization-wide connection among humans working together.79 I do not mean only a matter of common method. The “we” locutions I mention are often used to convey a sense of current scientific consensus on various issues. They purport to represent the current state of scientific knowledge shared and accredited by laboratories and authorities around the world. So there is the community of scientists, and there is scientists’ consensus for the time being on which theories are valid, which explanations are adequate, which empirical results are reliable, which theoretical constructs are useful, where the intractable problems lie, and what the current state of play is. No doubt the consensus is loose and continually evolving, but every scientist the world over thinks in terms of this consensus and of the community that sustains it, and treats it, if not as the last word on the issues it addresses, certainly as the prescriptive starting point. An existing scientific consensus does not claim either unanimity among scientists or infallibility. Nevertheless, it stands as a repository of enormous value to individual researchers as they go about their work, and it is unthinkable that any of them would try to proceed without drawing on that repository to supplement their own individual research and to provide a basis for its critique and evaluation: “Where the global community reaches a relatively strong consensus on a particular question, that consensus [has] a strong

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claim to respect as a[n] . . . agreed disciplinary benchmark that deserves adherence unless a participant in the community can persuade others that the particular starting point is flawed or inapplicable.” 80 No one in the modern world would take seriously novel claims about energy or gravity that did not refer to the work of the scientific community at large. Even if one wants to challenge the existing consensus as a scientist, one necessarily works out from the inside of it, at every stage submitting one’s results and the inferences drawn from them to be checked and evaluated by one’s peers. There is a useful and illuminating analogy between the role played by consensus and community in science and that played by consensus and global legal community in law.81 Scientific consensus is available as a resource and as a prescriptive starting point for individual scientific endeavor. Similarly, the ius gentium is available to lawmakers and judges in every country as an established body of legal insight, reminding them that their particular problem has been confronted before and that they, like scientists, should try to think it through in the company of those who have already had to deal with it. The analogy is no doubt imperfect—like all analogies it is not supposed to convey an equivalence—and I will address some objections to it in a moment. First, however, I want to elaborate its implications for the use of foreign law. My analogy is between scientific analysis and legal analysis and the role played by global consensus in each. But consider for a moment a more direct, less analogical, relation between policy making and the global scientific consensus. How might we expect public health authorities to deal with a new disease or epidemic appearing within our borders, one which we had never confronted before but which had afflicted other countries? It would be ridiculous to say that because the problem had arisen in the United States, we should look only to American science to solve it—as if to say, “We must never forget that this is an American epidemic we are fighting.” On the contrary, we would want to look abroad to see what scientific conclusions and strategies had emerged, what had been tested, and what possible solutions had been validated in the public health practices of other countries and in their relations with one another. Of course the choice of a strategy or proposed solution would be in the end a matter for us. Our scientists would have to take responsibility for their recommendations, and our policymakers for their decisions. But it would be culpable folly for either group to turn their back on other countries’ experience and accumulated expertise. Even if they were convinced that American conditions were different, that the disease was mutating and responding differently to our particular

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environment, still they would want to ensure that they responded rationally to those differences, identifying conditions that called for an approach unlike those tried in other countries and having some detailed sense of how to measure and respond proportionately to the differentiating factors. So even in this case, we would want to pay attention to the world’s experience with such differences as the disease had faced beyond our shores, in order to ensure that we were taking a rational approach to the differences it exhibited among us. That’s a matter of policy, but I believe it helps us think through the process of legal analysis. (Some don’t see any difference between legal analysis and policy analysis, in which case the argument here is even tighter than I believe it is.) When we face a novel legal question in the United States—say, a question about the possible implementation of a regime permitting euthanasia—we need to consider the experience that other legal systems have had with this problem. Most countries that consider anything like legalized euthanasia want to maintain a prohibition on certain forms of encouraging and assisting suicide, and they want to hedge their assisted suicide regime against abuses and forms of coercive pressure that might be put upon ailing individuals. But in doing so they don’t want unduly to encumber end-of-life decisions by individuals who otherwise face a prolonged process of dying in circumstances of pain and degradation; and they want to accord the greatest respect to individual autonomy and dignity, mindful of the fact that each of those values points in several directions in this problem. The countries of the world are at different stages in working through this tangle of issues. Some of the world’s knowledge about how to think all this through is available primarily in the experience of only one or two countries: that is why Chief Justice Rehnquist drew extensively on the experience of the Netherlands in his opinion in Washington v. Glucksberg.82 Other broad conclusions have emerged as a matter of consensus among those that have experimented with various permissive regimes: certain forms of regulation have been found to work; others have proved less reliable, so far as protecting vulnerable individuals is concerned. It makes no sense to try to work through the legal dimensions of this problem in ignorance of both the individual and accumulated experience of other countries. And I mean not just experience about what works and what doesn’t, but experience with the legal analysis of the problem—looking to forms of analysis that others have pioneered that open the prospect of our being able to identify and attend methodically to the issues and values that matter in this issue. That is the prospect that consensus and juridical community hold out in the world, and we would be fools not to avail ourselves of it.

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It is true that conditions in the United States may be different from those in other countries: perhaps wealth-maximizing Americans are more likely than, say, the Dutch to pressure their elderly relatives to die. Still, the world has experience of responding to different conditions, and we would do well to avail ourselves of that experience to ensure that we are not responding arbitrarily or irrationally to local peculiarities. It is true, too, that any legal analysis must in the first instance respect the constitutional dimensions of these problems. The federal structure of the United States is a prime example: is the matter to be decided at a federal level or left up to the states? But even on that point we may be able to learn from other countries how to analyze the bearing of federal structure on a problem such as this—just as we think there is something we can teach the world from our experience of addressing the federal dimension of the abortion issue. Fortunately, our Constitution is capacious in the values it invokes and in that respect sufficiently like other bills and charters of rights, so that even while we work within its provisions we still find ourselves having to grapple with the same complex of autonomy-related, dignity-related, and protective issues that other countries have to grapple with. So there is the analogy. A scientist doesn’t think of pursuing research on gravity or energy without reference to the existing work of the scientific community. He relies on and begins from the scientific consensus of established and verified results. And the same is true for law. We don’t try to solve these problems as though the world had never grappled with them before. We pay attention to what other jurists have done with the issue we face. We treat it as a problem to be solved by paying attention to the established deliverances of legal science—the experience, which many legal systems share, of grappling with, untangling, analyzing, and resolving rival rights and claims, principles and values that come together in issues of this kind. The idea of ius gentium treats the problems that arise in our courts as though they were questions for legal science. It does not simply look to “foreign moods, fads, or fashions.”83 It relies instead on the idea that solutions to certain kinds of problems in the law might get established in the way that scientific theories are established. They do not get established as infallible; they change over the years, and there are always outliers who refuse to accept them—some cranky, some whose reluctance leads eventually to progress. But to ignore foreign solutions or to refrain from attending to them because they are foreign betokens not just an objectionable parochialism, but an obtuseness as to the nature of the problems we face. I am anxious that this analogy with science should not be misunderstood: it does not claim an equivalence between law and science; it is

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oriented specifically to the role that global community and consensus play in each of two otherwise quite different enterprises. A first point is that I am not trying to assimilate legal method to the experimental methods of science. Roger Alford thinks I am. He points out that a scientist posits “a theoretical hypothesis, tests that hypothesis in the laboratory through experimental study, controls all variables that might alter the results, and reaches a scientific conclusion based on falsifiable tests in a controlled environment. The constitutional jurist does nothing of the kind in interpreting constitutional norms.”84 But we need not conflate legal analysis and scientific analysis in order to see that in both cases global community and scientific consensus play a similar role. About as far as I would want to go in proposing a direct analogy with scientific method is to concur in the suggestion of Justice Laurie Ackermann (recently retired from the South African Constitutional Court) that judges heed Albert Einstein’s admonition that “the formulation of a problem is often more essential than its solution.”85 Justice Ackermann writes, At some stage in a judge’s reasoning process . . . the judge will come to a preliminary conclusion or hypothesis as to what the result should be and why. . . . However, my experience . . . has been that . . . one can easily become trapped into a sort of tunnel vision, from which it is difficult to escape, or to see other or lateral answers. . . . It is in this context that foreign law can play a particularly valuable role. It may be that, when one commences the enquiry into foreign law one is psychologically hoping to find confirmation for one’s hypotheses, but if one remains alive to falsifying possibilities, the foreign law can be of particular value. In any event, foreign law may stimulate, in Einstein’s words, “creative imagination” by “rais[ing] new questions, new possibilities . . . regard[ing] old problems from a new angle.” In this context, I should like to acknowledge my own great indebtedness to the American example and to American constitutional and human rights scholarship.

I find this attitude more attractive than that of Justice Kennedy in Roper v. Simmons, which seems to look to foreign authority only for confirmation of his liberal impulses.86 I do not deny the considerable differences between the episteme of science and the episteme of law. The point is that in each case there is a shared methodology underwritten by some sort of global community. It is community on that scale that enables scientists from one country to talk to one another, to share a sense of common enterprise, and to recognize and assist one another with their common methodology. And I believe

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something analogous enables lawyers, jurists, and judges from different legal systems to share a sense of common enterprise. Second, in invoking this analogy I am not intending to advocate a consensus theory of scientific truth. On the contrary, the scientific community’s consensus for the time being is always understood to be fallible, and it is judged in the last analysis by criteria of external truth. (Some philosophical skeptics may quibble with that; but my position is not built on that sort of skepticism. I am an objectivist about the world that the scientists are trying to describe and explain.) It is precisely because scientists are trying to describe and explain a theory- and mind-independent world that the business of checking and rechecking and endeavoring to duplicate one another’s experimental results is so important. Engagement with community and attention to consensus are like mandatory heuristics relative to the pursuit of truth; in science they are not the point of the exercise, but they are indispensable to it. The consensus and the community I have in mind, then, comprise not just an accumulation of authorities but a dense network of checking and rechecking results, experimental duplication, credentialing, mutual elaboration, and building on one another’s work. Neither the scientific nor the legal community offers any guarantees so far as the overall aim of the enterprise is concerned: truth in the case of science, justice or right in the case of law. A consensus in either field can be wrong. Still, in neither field is there a sensible alternative to paying attention to the established body of findings to which others have contributed over the years. Third, there is a question about whether I am assuming some sort of “right answer thesis” in law, a right answer we are supposed to be able to reach by drawing on consensus in legal science (but that might also be used to criticize any given consensus).87 Some critics think that this is what the analogy must assume and that this is where it fails. James Allan maintains that I nowhere provide any reason for us to believe that law is analogous to science in regard to what is supposed to underlie and support the role of consensus in the two realms:88 Penicillin does not save millions of lives just because a coterie of top doctors thinks it does. . . . Science rests on a belief that . . . there is an external, causal world. . . . [T]he consensus of experts in a particular scientific field . . . matters in an indirect, evidential way because it is such a strong indication of what is likely to be true in the external, causal world. These people, who have spent their lives studying and testing the complex causal interactions, have far more expertise than we do. . . . This is the only . . . nonmysterious, nonmystical way to understand the presumptive force of any consensus of experts in the realms of science.89

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He says that my analogy “suggests that the legal consensus of [foreign] judges somehow sits atop a body of mind-independent, imposed-on-humans truths, as it does in the scientific realm.” But, says Allan, that makes no sense at all. Judges are not trying to access mind-independent truth in their deliberations in the way scientists are, and even if they were there is no mind-independent truth, corresponding to their assertions about justice or right, for them to access: Waldron’s attempt to harness for the realm of law the same sense of solid, objective, timeless knowledge that exists . . . in the realm of the natural sciences is not successful. If American judges ought to . . . consider . . . the consensus of opinion of foreign judges, it cannot be because that consensus represents what it does in the natural sciences, namely the currently existing best understanding by us limited, biological humans of the underlying, mind-independent reality of our external causal world.90

Allan is relying on three propositions. First, he assumes that when judges appeal to foreign law they are aiming simply to satisfy moral sentiments of rightness or justice (to the extent that they are oriented toward anything other than just applying the law that they are supposed to administer.) Second, he assumes that pursuing these subjective sentiments is a relatively straightforward matter: one can do it on one’s own; one either satisfies them or one doesn’t; one doesn’t need help in this enterprise. Third, he denies that there is any “solid, objective, timeless knowledge” about justice or right that can perform the function for legal analysis that the “mind-independent reality of [the] external causal world” performs for physical science.91 One might grant him the first assumption or something like it. Judges are aiming at something like justice or rightness when they venture to consult foreign law. For much of this chapter I have proceeded on the basis that legal analysis aims at a just solution. But it may also aim pragmatically or more modestly at a workable solution, or an efficient one, or one that simply seems right. I don’t mean, as Allan may mean, that these are illicit subjective preferences that are at odds with what the law requires the judges to seek. Often the best way of understanding what law requires in complicated cases involving fundamental rights is something like a just solution or a solution that is workable and right. That is usually the best way of understanding familiar provisions that lay down and limit fundamental rights. True, local legal provisions frame those aims in particular ways; but often the framing is broad and abstract and, as we have seen, quite similar from system to system.

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But I want to question Allan’s second assumption. Even if justice and rightness are just moral sentiments, their pursuit and their implications for particular cases can be complex and difficult. It is not just a subjective issue. These difficulties are common to a great many legal systems. They can be addressed more or less competently. And a condition of addressing them competently might be to draw upon the wisdom of a community which has accumulated the experience of various jurists in analyzing and untangling them. That is what my analogy is supposed to convey. Last, what about Allan’s reference to timeless objective truth? Does one have to be a moral realist, a believer in moral objectivity, to accept my analogy? I don’t think so, though it is not ruled out. I have argued elsewhere that issues of meta-ethical objectivity are largely irrelevant to questions in legal and political philosophy.92 Whether one is a moral realist or not, one will likely proceed in argument and analysis as though it mattered to deal competently with issues of rightness and justice. Even someone who in the philosophy seminar room denies moral realism will still take her or his values seriously, will still want to pursue them competently, and will be ready to take lessons from the way in which they are pursued by others.93 We know of course that people disagree about justice and rightness, and they bring different conceptions of these values to any particular exercise in legal analysis. In theory, a conservative judge approaching, say, assisted suicide or the juvenile death penalty will approach those problems with different sentiments and perhaps with a different sense of what counts as an adequate analysis compared with a liberal judge. If the conservative were to engage in an inquiry into foreign law, she may use that in a different way than her liberal counterpart. Still, both of them may learn something from that inquiry, even if it is not the same thing. But it is also possible they may both benefit in the same way from paying attention to a global consensus. For the propositions they are grappling with need not be the ultimate loci of their moral or ideological disagreements. Often what legal analysis focuses on is the bearing on a tangled situation of intermediate principles that may well be shared by those who disagree about ultimate values. They may be shared either because the intermediate principles represent a sort of plateau of moral commonsense or because the two opposed judges are required by the law they are supposed to be administering to address a common question—say, about the cruelty of a given punishment (even if only one of them thinks that cruelty is a bad thing in a punishment) or about equal protection (even if one of them is, at base, not an egalitarian). The two of them may think themselves bound to analyze the bearing of one or several of these principles on a multifaceted legal problem, and they may both welcome or

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profit from the assistance that a global consensus offers in indicating what counts as a respectable, disciplined way to conduct such analysis.

8. Law as Reason Versus Law as Will One thing the scientific analogy is dependent upon is a view of law as, in large measure, a matter of reason, not a matter of will. To echo Herbert Wechsler in his essay “Neutral Principles in Constitutional Law,” “Those who perceive in law only the element of fiat . . . will not join gladly in the search for standards of the kind I have in mind.”94 People who think legal problems are ultimately solved in simple Alexandrian fashion—by just cutting the Gordian knot with a determination to privilege this value or to promote that policy—will be uninterested in the exigencies of a jurisprudence that talks about patient analysis, the untangling of issues, the ascertaining of just resolutions, and the learning and cooperation characteristic of a scientific approach. Approaching law as a matter of fiat, those people will not see any reason expressions of will elsewhere in the world should affect expressions of will in America. For them, the question is, Whose will should prevail? And they will see in the citation of foreign law nothing much more than Justice Scalia saw: “the subjective views of five Members of this Court and like-minded foreigners.”95 In this chapter I have tried to present law in a different light, as essentially a problem-solving enterprise. Even in the areas where law is governed entirely by democratic decision, I don’t see it as a matter of will. I don’t believe in a unitary will of the people, and I don’t think even that voting should be construed as a mere expression of will. What I do think is that areas where there is reasonable disagreement about what the law should be, democratic legitimacy requires that each person has a right to have respect accorded to his or her reason and to have equal weight assigned to his or her reasoned conclusion.96 But it is still reason that we are talking about in the context of democratic decision making. Even common people can reason, individually and together. And reason will not refuse assistance, when it turns out that others have been wrestling with what we too are trying to figure out.

CHAPTER FIVE

Treating Like Cases Alike (in the World)

1. Hopkinson v. Police In 2003 a young man named Paul Hopkinson set fire to a New Zealand flag on the grounds of the New Zealand Parliament. He was protesting Australia’s support of the United States in the war in Iraq on the occasion of a visit by the Australian prime minister. Hopkinson was arrested, charged, and convicted of an offense under the Flags, Emblems, and Names Protection Act 1981, a statute which makes it an offense to destroy the New Zealand flag with the intention of dishonoring it. The penalty was a fine of NZ $600. Hopkinson appealed his conviction on the ground that burning a flag in protest was not a way of dishonoring the national symbol, at least not under any interpretation of dishonor that would avoid conflict with the free speech provisions of the New Zealand Bill of Rights Act 1990 (NZBORA).1 To understand this, it helps to know that New Zealand has a form of very weak judicial review, one which does not permit courts to strike down legislation but which requires them to choose, among available interpretations of offending statutes, those that are most congenial to the letter and the spirit of the NZBORA.2 The court hearing the appeal had no doubt that prohibiting Hopkinson’s conduct was prima facie a breach of his right to freedom of expression. But like many modern bills of rights, the NZBORA allows rights to be qualified by such “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”3 And so the court had to consider whether the protection of the flag satisfied that test. Hopkinson contended that protecting the flag was a goal of relatively little importance in New Zealand’s multicultural society. The judge, Justice Ellen France, disagreed. She said, “I believe the objective remains an important one. In Texas v. Johnson . . . the United States Supreme Court ruled that 109

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the Texas flag-burning legislation was unconstitutional, but did consider that the state’s aims of preserving the flag as a symbol of national unity and preventing breaches of the peace were legitimate ones.”4 That was the court’s first reference to foreign law in Hopkinson. The second came when Justice France turned to consider whether a ban on flag burning was a rational and proportionate means of advancing this legitimate objective. She noted the disagreement on this matter among justices on the U.S. Supreme Court in Texas v. Johnson.5 And she also referred to a case from Hong Kong involving the mutilation and defacing of both the Chinese flag and the flag of the Hong Kong region.6 There, the Hong Kong court upheld a flag protection statute, on grounds of special exigencies of public order having to do with the newness of Hong Kong’s constitutional arrangements and the delicacy of its position in relation to the rest of China. Observing that there is “room for differing views” on this issue, Justice France reached her own conclusion: “Obviously, the flag is important. However, even in the United States where the flag is such a dominant symbol, the majority concluded its protection did not warrant the interference of the criminal law. . . . In the end I have concluded that the rational connection part of the s 5 test is not met here so that the prohibition on this appellant’s conduct was not a justified limit on his free speech.”7 Justice France then turned to the question of interpretation, and she adopted Hopkinson’s suggestion that “dishonor” in the flag protection statute should be read in a very narrow way to mean “defile” or “vilify.”8 She drew on a New Jersey case from 1941 for this definition.9 And she said that this definition would be consistent with the NZBORA and yet not cover Hopkinson’s conduct. And so Hopkinson’s conviction was reversed, and he did not have to pay the fine. Hopkinson was not a very momentous case. It was not even a high appellate decision. Justice France is now on the New Zealand Court of Appeal, but the High Court in which she sat in Hopkinson is just one step up from the District Court where Hopkinson was initially convicted. (There are two appellate levels above that in New Zealand: the Court of Appeal and the Supreme Court.) So this was nothing fancy, just a low-level case before an ordinary working judge. But Hopkinson did involve the citation of foreign law, that is, law from outside the jurisdiction of the court dealing with the particular case. In an appendix to her decision, France outlined the position on flag burning in twelve countries besides the United States: Austria, Canada, China, France, Germany, Hong Kong, India, Italy, Japan, Norway, Portugal, and Turkey.10 Unlike Roper v. Simmons (see chapter 1), Hopkinson involved a foreign court citing American law, rather than an American

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court citing foreign law. I think turning the tables in this way is sometimes quite important. It helps one see that what seems like a big deal in the American context is often done quite easily and without fuss in other courts, high and low, around the world. It is interesting, too, that Justice France found it useful to cite foreign law even though, as she said, the results were inconclusive, leaving room for her own judgment. She was at pains to point up the dissensus among U.S. Supreme Court justices on the matter, even while she was encouraged in her own view of the matter before her by the holdings in Texas v. Johnson and U.S. v. Eichman. Also notable is that Justice France cited cases from jurisdictions that were administering statutes similar to the one she was dealing with under circumstances somewhat different from those that obtained in New Zealand. She mentioned the delicate position in Hong Kong and the greater culture of reverence for the flag in the United States.11 But, like any good lawyer, she was able to identify the differences and calibrate their bearing on the New Zealand case accordingly. Hopkinson also shows how the citation of foreign law can work in constitutional or rights cases even when there is not strong judicial review. Justice France used her citation of Texas v. Johnson and U.S. v. Eichman not to strike down a statute but to assist in the interpretive task she faced—the task of reconciling a statute with the NZBORA. Critics of the use of foreign law sometimes say that it won’t work when there are differences in constitutional structure.12 But Justice France’s analysis proves that idea wrong, at least for lawyers and judges who can hold more than one or two ideas in their head at the same time. I have said that I want to explore two kinds of normative idea in this book— two kinds of consideration that might justify the use of foreign law in American constitutional cases and that might give the modern ius gentium whatever authority it has for us. One of the arguments is that there is something to be learned from foreign law (see chapter 4), and Hopkinson is certainly an illustration of that. Justice France found it helpful to follow some pathways of American constitutional analysis. When a judge faces a case like this, she addresses the issues in a certain order: Is the protection of the flag a legitimate state objective? If it is, is a ban on flag burning a reasonable way of pursuing that objective? With free speech at stake, how necessary is this particular mode of pursuing that objective? Are there alternatives? Is this alternative overly broad? And so on. Analysis like this has been pioneered by American courts, and it seems enlightened and appropriate for judges around the world to adapt these analyses in carrying out their own judicial tasks, at least when they face similar or analogous issues.

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The other line of normative argument I said I wanted to consider was the idea that reference to foreign law might be understood as a way of securing consistency in the world. I mean consistency in the sense of treating like cases alike. Reading the decision in this flag-burning case, I get the impression that Justice France thought it important that her treatment of Hopkinson should not be too far out of line with the way flag-burners are treated the world over. It was important to her to see whether his conviction in the face of free speech guarantees would introduce a jarringly dissonant note into free speech jurisprudence, not just in New Zealand but in the world. She was considering how to balance values like free speech and respect for national symbols, and she knew very well that this was something every country had to deal with. In this connection, Justice France was also looking to apply the New Zealand version of the provision that, as I noted above, many modern bills of rights have: the provision that says rights may be subject to such “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” She wanted to apply that in a way that would be consistent, as far as possible, with the way it was administered in other countries. Her inquiry into foreign law was in large measure a matter of finding out how things stood, insofar as a possible decision by her, one way or the other, was concerned, in relation to the consistency or integrity of this body of law in the world.

2. The Value of Consistency Across the World So here are the questions for this chapter. How important is the demand for sheer consistency, that is, treating like cases alike, in justifying the citation of and reliance on foreign law? What is the case, if any, for attempting to harmonize the way in which the laws about fundamental rights are administered all over the world? Should judges be trying, each as far as she can, to harmonize the jurisprudence of NZBORA with that of the Canadian Charter, the U.S. Bill of Rights, the U.K.’s Human Rights Act, the European Convention, and so on? Most legal scholars think there is a case for consistency within a given legal system. We think it is important for a given legal system to treat like cases alike, to ensure that cases that come before its tribunals are treated in a way that is consistent with the way similar cases have been treated in the past. This is what precedent and stare decisis are based on. There are various explanations of why we think this is important within each legal system. Some jurists emphasize pragmatic values like certainty and predictability. Others emphasize fairness, comparative justice, and integrity. Do any of

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these values extend beyond the bounds of a single legal system to require consistency across legal systems? Or are there quite different values engaged to justify a requirement of consistency in that context (if indeed consistency is required in the global context at all)? Some have argued that the requirement of consistency across legal systems can be justified on rule-of-law grounds. Nelson Tebbe and Robert Tsai cite Lon Fuller’s remark that the requirement of generality is “the first desideratum of a system for subjecting human conduct to the governance of rules.” They suggest that generality arising out of the use of “constitutional borrowing” from one system to another hinders hyperspecialization and thereby facilitates participation by nonexperts. . . . People who value legal consistency will have greater opportunities to press decisionmakers not to exercise their power in patternless or idiosyncratic ways. Migration of legal ideas may also break down outmoded categories, heighten awareness of the limitations of context-specific adjudication, and encourage the search for commonalities. Perhaps most significantly, generality across areas of law can foster a sense of fairness among litigants—a perception that comparable cases are being treated comparably. . . . In other words, borrowing can foster a felt sense of evenhandedness by encouraging the spread of common methods and devices across domains of constitutional discourse. For reasons like these, generality has long been prized by those who seek to promote the rule of law. Yet few have noticed that migration among legal fields can promote that quality.13

But some of these arguments are question-begging—not wrong necessarily, but they assume some of what we are going to have to prove. For example, do feelings of unfairness attach to disparate results between legal systems in anything like the way or with anything like the intensity they attach to disparate results within legal systems? Are convicted flag-burners in Hong Kong really likely to complain that they are being treated unfairly compared to flag-burners in the United States? Does the demand for transnational consistency really help to focus democratic accountability in each country? Perhaps it gives people something to focus on, providing a comparator to show that the demand they are making has at least proved workable in another country. But it is hard to see this as the basis of a powerful argument for transnational harmonization. Tebbe and Tsai suggest that it might be easier to expose a local rule as arbitrary if it does not fit into a global pattern. But this invites two questions. First, is this a common basis for complaints about arbitrariness? And second, does it disclose a justified complaint? I am not saying that these questions are

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necessarily answered in the negative. But they indicate that I must show, not just assume, that there is something arbitrary about “patternless” exercises of power from nation to nation. The appeal to the rule of law to justify a requirement of harmonization presupposes that the appropriate subject for rule-of-law scrutiny is the pattern of governance across several nations. For we have to grant the opponents of harmonization the assumption that law is being administered consistently and in conformity with the rule-of-law requirement of generality in each society. The question Tebbe and Tsai raise but fail to answer is why the rule of law requires anything more than that. After all, other ruleof-law requirements don’t operate transnationally. We don’t say that the principle of prospectivity is violated, for example, if violations of the law in one country are prosecuted in advance of the relevant law being introduced into another society. And we don’t say that the principle of publicity is violated if the government of country A fails to publicize the laws it has enacted in country B. Prospectivity and publicity within each society are all we demand. Why should it be any different for generality?

3. Pragmatic Arguments There might be pragmatic arguments for harmonization: maybe some degree of consistency as between the laws of different countries makes for a more predictable or a more manageable legal environment or makes the administration of justice in each country easier. As noted, predictability is commonly cited as a ground for insisting on like cases being treated alike within a legal system. We say that following precedent allows people to form stable expectations about how the actions they perform and the transactions they engage in will be regarded by the law. It lets them know what they can rely on and affords them some security that the legal ground will not suddenly be cut from under their feet. We may be inclined to revise the opinion we formed in one case about the just way to treat a certain action or situation; we may think we can do better in a second case. But the cost of doing better will be to undermine predictability, and people and businesses in the community may prefer a predictable result they can rely on to the possible but less predictable correction of past injustice. The importance of these considerations is indisputable, but the predictability argument for following precedent—for treating like cases alike, even when we are tempted on grounds of justice to vary the result—can be taken only so far. For one thing, almost all modern courts allow departures from precedent in certain circumstances, at least so far as one court following its

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own past decisions is concerned. For another thing, the application of precedent is always subject to qualification by the possibility of more or less artificial ways of distinguishing one case from another, that is, noticing differences or complexities that might permit us to say that the two cases are not really alike. Taken together, these possibilities mean that the room for reliance is actually rather limited.14 The cases in which a precedent is secure, that is, invulnerable both to overturning and to distinguishing, are not as numerous as the argument from predictability would suggest. But if all this is true within a legal system, it must be true in spades across legal systems. In theory, harmonization might promote predictability, but in fact the pressure for harmonization is going to be considerably weaker in most legal systems than some pressures in the opposite direction, for example, pressures for distinction and idiosyncrasy. Courts may pay some attention to foreign precedents in the way Justice France did to Texas v. Johnson in the Hopkinson flag-burning case. But it would be a brave Kiwi flag-burner who actually relied on the force of Texas v. Johnson to secure an acquittal for him in New Zealand. If we want an argument for harmonization, it is going to have to be based on something more robust than this. A second pragmatic argument that is sometimes heard is that, on certain fundamental matters, the stability of precedent makes the legal environment more manageable for courts and parties alike by simply taking certain issues out of contention. In a discussion of stability in constitutional law, Richard Fallon has argued that “among the greatest effects of stare decisis is to justify the Court in treating some questions as settled, at least for the time being. The doctrine liberates the Justices from what otherwise would be a constitutional obligation to reconsider every potentially disputable issue as if it were being raised for the first time.”15 Examples he gives, from the American context, include the application of the Bill of Rights to the states and the application of the duty of equal protection to the federal government. Maybe it is unhealthy for these principles never to be reconsidered. But, Fallon argues, “it would overtax the Court and the country alike to insist that everything always must be up for grabs at once.”16 Can this be extended beyond the realm of one stable national constitution? Possibly. It is arguable that, in the new world of human rights claims, each legal system is vulnerable to being overwhelmed by a large array of new issues—all of them issues in which individuals and nongovernmental organizations (NGOs) are passionately invested, all of them imbued with a heavy dose of moral controversy. These controversies include the pursuit of any of a number of possible conceptions of religious freedom, for example, in relation to generally applicable laws, all sorts of concerns about

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punishment and treatment of detainees, and every kind of democratic or forensic challenge to the procedures used in governance. These controversies do have to be resolved. But it is a further question whether they need to be resolved separately in country after country—hundreds of cases addressing substantially the same issue. One need think only of what is sometimes called libel tourism, in which vexatious litigants scour the world in search of a legal system (usually in London) that has not yet settled on a sensible relation between defamation and free speech. It might be more manageable, from the point of view of any particular country, to be able to say after a while to a petitioner or a respondent, “The claim you are making has been raised time and again around the world, and each time it has been raised it has been settled the same way. Though we recognize the passion you have invested in its being raised yet again here, we want to say that the world appears to have adopted a settled principle to deal with this sort of claim, and we are going to rely on that, rather than treat the issue as up for grabs simply because it has never been settled within our borders.” That certain issues should be just out of the question and not up for reconsideration is a claim commonly associated with explicit human rights provisions like the prohibition on torture. It was part of the shock and horror associated with certain policies adopted by the United States in 2001–8 that the Bush administration seemed to want to reopen something that everyone had thought was legally settled. But the settlements that make law manageable are not just the clear principles laid down in human rights instruments. They are also the principles that emerge from human rights practice. Some of the examples I gave in chapter 1 are of this kind: the principle that pregnant women are not to be executed (at least until after their pregnancy has come to term), that children are not to be executed, and possibly that young adults are not to be executed for crimes they committed when they were children. It might seem better from a pragmatic as well as a moral point of view that these principles be simply put beyond question so that the legal systems of the world can get on with new and more pressing business. A third pragmatic argument for harmonization is that the administration of dissonant conceptions of rights can undermine comity between nations, making things like extradition more difficult.17 As Harold Koh has argued, since “concepts like ‘liberty,’ ‘equal protection,’ ‘due process of law,’ and privacy have never been exclusive U.S. property, . . . [t]o construe these terms in ignorance of . . . foreign and international precedents virtually ensures that our Supreme Court rulings will generate conflict and controversies with our closest global allies.”18 For example, in the case of Soering (1989), it proved impossible for the State of Virginia to extradite a

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young German man from the United Kingdom to be tried for the murder of the parents of his American girlfriend.19 No credible assurance could be given that Soering would not face the death penalty and hence become vulnerable to the death row syndrome, which is regarded in itself as an inhuman or unacceptably cruel form of treatment in European human rights law, but not in American law. The failure of Justice Breyer’s argument in Knight v. Florida and Foster v. Florida means that American law and European law remain unreconciled in this regard.20 Justice Thomas might deride Breyer’s dissents as pandering to “foreign moods, fads, or fashions,” but there is a real practical cost to this disparity.21

4. The Universality of Fundamental Rights Pragmatic arguments are all very well, but is harmonization among different legal systems important in principle? An obvious answer is, Yes, of course, because what each of these countries is administering under its Bill or Charter of Rights are human rights, and human rights, being based on universal principles, are surely the same the world over. Some people may deny the underlying moral universalism here. I am going to assume they are wrong, though there is much more that needs to be said.22 Some may object to the argument for harmonization that it confuses human rights with constitutional rights, and they are really two quite different things. They will say that a court enforcing constitutional rights in the United States has nothing in common with an international tribunal enforcing the International Covenant on Civil and Political Rights (ICCPR). (I address that objection in section 5 of this chapter.) But even if we concede that the rights protected in the U.S. Bill of Rights and the Canadian Charter and the NZBORA and the South African Constitution are human rights, I still don’t think the principled argument from universality is a good one. Certainly “universalism posits the existence within liberal democracies of broadly similar constitutional problems,” and it is evident that “our judges operate with a universalist mindset . . . that adheres to the view that, by and large, the British, Canadians and Americans all share fundamental values and are experiencing similar human rights dilemmas in situations like the war on terrorism.”23 But none of this implies that all countries should follow the same solution, or that a solution adopted on a widespread basis in one part of the world should therefore be adopted elsewhere. As to solutions, universalism is not a consensus notion; it is an objective truth notion, and it says that the truth is the same everywhere, whatever people happen to believe. Harmonization with a given line of

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decisions does not guarantee we have got the right answer; all it means is that we have the same answer. The answer that every legal system gives may be wrong, and if it is, surely it would be better if some of us were to move away from the consensus and start looking afresh for a right answer elsewhere. In its earliest stages, that process would almost certainly involve a decline in global consistency. Like cases would be treated differently, as courts of different countries went off in different directions in search of the one common universal truth. So, even if the truth about human rights is singular and universal, we should not necessarily be worried by the variety that results from different institutions’ searching for the truth in different places or on the basis of different lines of reasoning. It is surely better that truth prevail somewhere in the absence of consensus and that a few people get the benefit of it, if the only alternative is a consensus around a false principle. For example, maybe the consensus among nations is wrong in holding that no person who committed a crime when he was technically a juvenile should ever be punished with death for his infraction. After all, it would be odd if the objective moral right answer to a question like this were sensitive, in an absolute way, to the conventional age of majority. Maybe the pre-2005 Missouri answer is the better one: this is something that should be decided case by case, by a tribunal sensitive to all the facts, rather than by a per se rule sensitive only to the “eighteen year old” American definition of adulthood. I am not saying we should accept that view, though I suspect there is more to be said for it than many people suppose. The point is that it is not inconceivable that the case-by-case approach is objectively superior as a matter of moral principle to the per se rule, and we might not be able to find out whether it was superior except by defying the global consensus. Or consider the position of the United States on questions of hate speech. The United States is virtually alone among advanced democracies in not permitting legislatures to prohibit or limit speech that expresses racial or religious hatred. I happen to think the United States is wrong about this and that the rest of the world is right.24 But I might be wrong; most of my friends tell me I am. They say this issue has been thought through more carefully in the American tradition of First Amendment jurisprudence than it has in the councils of the world. If they are right about that, then defying the global consensus is a good way of pursuing universal truth. So we need a better explanation than the simple appeal to moral universalism. Why should we insist that like cases (in the world) be treated alike? Universality gives us a strong sense of why the cases are alike; but it doesn’t automatically endorse any particular mode of like treatment, and it does not

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explain why a national court should feel pressure to conform to whatever global consensus happens to have become established on these issues. International law does not give much of an answer. The Universal Declaration of Human Rights raises the issue in the final “whereas” of its preamble. It says that “a common understanding of these rights and freedoms is of the greatest importance for the full realization” of the pledge that member states have given to promote universal respect for human rights. “A common understanding” among them is of “the greatest importance.” That is an announcement of the value of consistency. But it is not an explanation. One possible line of argument might be that a patchwork of disparate human rights provisions and judgments would be something of a scandal; it would create an impression of relativism; it would create an impression that countries were not really signed on to the human rights enterprise at all but were just parading their own parochial standards. (Bentham said something along these lines in response to the claim that inheritance was a natural right: “Succession a natural, a universal right? How can that be?—when in no two nations it is the same!”)25 Justice Kennedy has said that it is important for courts around the world to adopt a “unified concept of what human dignity means.”26 One reason for this might be to rebut the scandalous inference that some jurists are already drawing, that “human dignity” means different things to different courts and is used in a chameleon-like way as a place-holder to fill in the gaps in human rights reasoning.27 But I think it would be unfortunate to have to fall back on this argument about avoiding scandal. It is a bit too much about packaging and presentation. It reminds me of the portion of the opinion in the abortion case of Planned Parenthood v. Casey (1992), where Justices O’Connor, Kennedy, and Souter asserted, “There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation.”28 The plurality in Casey worried about the scandalous appearance of variation over time in the decisions of the Court; we are worried about the scandalous appearance of variation in space across jurisdictions in the world. Perhaps this is a reasonable concern, but does it really take us to the heart of the matter? I believe there are good answers to the question of why we want some harmonization in the way fundamental rights are viewed in countries across the world. These answers, which I will set out in sections 6 through 9 of this chapter, form part of the underlying normativity of the appeal to foreign law

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and the force and authority of what I am calling the ius gentium. But before we proceed, we need to address an objection that was raised but not answered at the beginning of this section.

5. Human Rights and Constitutional Rights Even if we can show that it’s important for there to be some harmonization of the way human rights are administered in the world, who says that American constitutional law is part of that enterprise? Unless we fill in that step of the argument—that national rights law should be seen as part of human rights law—we can talk all we like about global consistency, but it will not have any bearing on what the U.S. Supreme Court ought to do. To some it seems obvious that the two sets of rights are distinct. After all, they are found in different documents: one in the amendments to the Constitution of the United States, the other in, say, the ICCPR. The first document says nothing about human rights and the second document says next to nothing about constitutional rights. Some will emphasize also that the two documents have different sets of authors; that is correct, though their authority as law is conferred, for Americans, by the same clause of the U.S. Constitution—the Supremacy Clause of article 6—which stipulates that “this Constitution . . . and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” The ICCPR is a multilateral treaty which the United States signed on October 5, 1977, and ratified on June 8, 1992. That the lists of rights have different names can be conceded. The question is whether they are supposed to be different in their underlying character. After all, the ICCPR is called something different from the Universal Declaration of Human Rights, but we easily understand that human rights are the subject matter of both documents. And we know too that in some countries the national bill of rights has the term “human rights” in its title: the United Kingdom’s Human Rights Act 1998 is the best-known example. Suppose some American patriot were to insist that, whatever the case in England, in America constitutional rights are different from human rights. And suppose an outsider took that at face value and responded, “So are you saying that human rights are not respected in the United States?” The patriot would reply indignantly, “Of course human rights are respected in the United States! We have free speech, freedom from arbitrary arrest, religious freedom, freedom of movement, political freedom, almost everything that a sensible human rights advocate might regard as important.” And if the outsider were to ask how we know that those human rights are protected in

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the United States, the patriot would respond by pointing to the effectiveness of U.S. constitutional provisions. The inference is clear. Constitutional rights in America do the work of human rights; indeed, they do exactly the work that article 2 of the ICCPR, the leading document of human rights law, requires should be done: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.

If some mischievous dictatorship on the U.N. Human Rights Committee were to accuse us of falling short of our obligations under article 2, we would point to our Constitution and the effectiveness of our system of fundamental rights-protections and announce proudly that we were doing this a hundred years or more before the ICCPR came into effect. In thinking about continuity between international human rights law and the administration of national bills of rights, I find a term used by Gerald Neuman useful: “dual positivization.”29 Human rights, like the right to free speech and religious freedom and the right not to be tortured, begin, no doubt, as moral ideals. But they are made into positive law, and this happens at two levels. They are laid down in the form of treaties like the ICCPR. And they are also made into positive law in the form of national charters, like the Bill of Rights in our Constitution and the Canadian Charter of Rights and Freedoms and the British Human Rights Act. Neuman talks about “dual positivization,” but multiple positivization is probably more accurate, for there are regional layers in between (like the ECHR), and there are statutory and regulatory layers, too, below the level of national constitutions.

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The treaties, at the top level, are no doubt very important. But probably for most people in most rights-respecting nations it is the national bills and charters that offer their primary and most reliable line of defense against human rights violations. This picture sometimes makes human rights scholars a little uneasy, as they see their turf being eroded by constitutional lawyers. As a result, as Philip Alston has noted, “bills of rights tend to be neglected . . . in terms of their relationship with the international human rights regime.”30 The fact is, however, that this is how human rights law works. The treaties are important, but the primary expectation is that the human rights treaty obligations will be fulfilled by the terms of the treaties being mirrored in the laws and constitutions of particular nation-states. The treaties, of course, embody a single set of global formulations laying down common standards for the whole world.31 At the level of national law, the positivization is more piecemeal and fragmentary, more of a patchwork. There are numerous distinct national documents, many of them inspired by the treaties at the top level and many of them imitative of one another, but they differ—in some respects slightly, in some respects significantly—as to their content and wording and certainly as to the history of their administration. That is fine, so long as each of them is considered only in its own terms. But when we consider them together, as a single layer of positivization of the global human rights idea, then the introduction of some degree of harmonization becomes a challenge, and the importance of that harmonization becomes normative.32 Are we in the United States accustomed to thinking of our Bill of Rights in this way? Not really.33 For one thing, the Bill of Rights predates the modern human rights movement by 150 years, and we have elaborated it in our own way without always paying much regard to this wider enterprise of which, as I say, it may now be seen as a part. Not only that, but we think of the Bill of Rights as part of our quintessentially American constitutional heritage, and in law schools human rights law and constitutional law are treated as two quite distinct areas of study. So it is a bit of a wrench to look at the Bill of Rights and the law surrounding it in this different way. It is disconcerting to have to look at it as a mechanism by which we discharge our international duties and play our part in the common responsibilities laid down at the top level by the law of international human rights. Still, I think it is important to see it in that light. Doing so may be made easier by my adding that we don’t have to view our Bill of Rights in just one way. All I am arguing is that this dimension of global positivization needs to be given its due, among everything else that the Bill of Rights is and stands for.

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I think those who cite to foreign law in the course of constitutional interpretation are seeing it in that light. They do not forget Justice Scalia’s reminder that it is an American constitution they are expounding.34 But they see this other dimension as well. Our Bill of Rights recognizes many of the core rights that both the international documents and the other foreign bills and charters of rights recognize. It is true that we have chosen to positivize our beliefs about fundamental rights in our Constitution; some other countries, like South Africa, do this as well; others, like Britain and New Zealand, however, do it through specific legislation or, in the case of Canada, through a free-standing Charter of Rights and Freedoms. But differences in the form of positivization should not obscure the important points about continuity that I am pursuing here. The point is that we recognize these rights not just as rights for Americans but as fundamental rights associated with the dignity of the human person. They weren’t called human rights when we embodied them in our Constitution at the end of the eighteenth century. But it was the U.S. example, among others, that taught the world to take them seriously. We were pioneers in this common enterprise, and it is odd that we should have such difficulty in acknowledging this fact now.

6. Fairness and Reciprocity Let us return to the principled case for consistency. Recall how in Hopkinson Justice France gave the impression that a disparity between the New Zealand and the American way of treating flag-burners would be a bad thing: we ought to administer the right to free speech in a harmonious manner. And in Roper v. Simmons Justice Kennedy implied that a disparity between the United States and the rest of the world on the punishment of juvenile offenders would be a bad thing: the human right that prohibits cruel punishment ought to be administered in a harmonious manner. Like cases in the world should be treated alike. But why? In our national law, we sometimes justify following precedent on grounds of fairness: it is unfair to treat case B differently from the way case A was treated if the two cases are similar in all relevant respects. True, if we think the first case was wrongly decided, then perhaps we ought not to persist in our error in the next case that comes along. And so we overrule the precedent in A and decide B differently. But when we do, we feel a qualm, and the losing party in case B is likely to feel it acutely. That qualm about unfairness does not go away even when we justify the correction of our original decision. That is why the principle of treating like cases alike still has some

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weight for us, even in cases where we think it might be necessary to overturn the earlier precedent. Philosophers say that some issues of justice are noncomparative and that those issues may be more resistant to an analysis in terms of fairness and unfairness.35 What matters in noncomparative justice is that a person be treated rightly, and what counts as right treatment is not a function of the treatment that has been accorded to anyone else. For example, it is wrong to torture people. And the wrongness is fully explained by what torture is and what it does to each person who suffers it; it is not a matter of fairness or consistency vis-à-vis other detainees who might not have been treated in this way. To take another example: it is right that a person, X, who carelessly damages Y’s property should be required to make good the loss, whether others have been required to provide similar compensation for those whose property they have carelessly damaged in the past or not. The case for requiring X to make good the loss is focused simply on what happened between him and Y. If a previous careless injurer, V, was not required in similar circumstances to make good the loss he inflicted on W, we might think that wrong. But X could hardly complain of unfairness by reference to that case. Many issues of justice are not like that. They are cases of comparative rather than noncomparative justice. We are often much more confident that similar parties should be treated similarly than we are about the way they are actually treated. And we often complain about the unfairness of a disparity even when we have little idea about what a substantially just outcome would be. Should someone who commits robbery be sentenced to ten years in prison? or twenty years? Who can say? But we do say that two robbers who have committed the same crime should receive similar sentences, and we think it quite unfair if they don’t—unfair to at least one of them. In these cases our intuitions about justice are comparative. The like cases of the two robbers should be treated alike. Anything else is unfair. The philosophical distinction between comparative and noncomparative justice is an interesting one. But I suspect that in the end it is less important than the philosophers assume. For even in noncomparative cases there is room for some concern about fairness. Consider a variation on my earlier negligence example. In a city like New York, the population divides into drivers and pedestrians, though some people occupy both roles at different times. Suppose that X, a driver, has been found liable time and time again for injuring pedestrians under a legal rule that X disagrees with. Maybe the rule awards compensation to pedestrians even when they stepped into the crosswalk without looking, provided only that the lights were in

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their favor, and X believes that pedestrians have an obligation to look out for turning traffic even when the pedestrian has the right of way. Still, despite the disagreement, X is a good citizen and she pays up every time. But one day X leaves her car at home and becomes a pedestrian. Because she is in a hurry she steps into a crosswalk as soon as the light turns to “Walk” without looking and gets hit by a driver (Y). “Hallelujah!” X thinks. “At last I have a chance to recover damages through this rule that I have been paying out under all these years.” But when the case of X v. Y comes to court, the court takes the opportunity to correct the injustice it now recognizes in the rule, the very injustice X complained about in the earlier cases. So Y gets off more or less scot-free because of the large amount X has to pay in contributory negligence. Wouldn’t X regard this as unfair? The complaint is not that the wrong rule is being administered. X actually agrees with the new rule. Her complaint is that she bore the burdens of a rule she disagreed with for all these years, and now, when the tables are turned, fairness demands that she should receive the benefits of the rule under which she suffered so long. The issue is no longer the noncomparative issue of contributory negligence; it is now the acutely comparative issue of the fair distribution of benefits and burdens in a society whose members disagree about what the appropriate distribution of benefits and burdens should be. So far, this has all been about fairness and comparative justice within a given society. On comparative issues or issues that can be made into comparative ones in the way I have just described, there is a fairness-based case for treating like cases alike, even when we think that the different way in which we might treat the second case is better. I have used illustrations from tort law. But the same point can be made about fundamental rights. If one person in a society is acquitted of flag burning on free speech grounds, then the next flag-burner should be acquitted too. The flag-burners may reach different conclusions about what the rule ought to be, but if there is a liberal rule, they might both reasonably demand the benefit of it. A Tea Party activist may deplore flag burning by hippies and liberals. But he sees that they get away scot-free on free-speech grounds, and he might think it only fair that he too should get away scot-free when he burns a flag to protest the policies of the administration of Barack Obama. The question now is whether any of these intuitions survive when the various parties are not members of the same legal system but citizens of different countries acting and litigating under the auspices of different legal institutions. Is there something wrong when disparate sentences are imposed upon two robbers who are similar in all respects except that they committed their crimes in different countries? Is there something wrong

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with this in circumstances in which the only thing that is clear about sentences for robbery is that like robbers should be treated alike? Is there something unfair when a flag-burner in one country is not given the benefit of a precedent in another country that exempts flag burning from prosecution on free-speech grounds? In an atmosphere of disagreement both within and between societies as to what the law relating flag burning to free speech ought to be, is there anything unfair about denying to one flag-burner his share of the benefits of a liberal society that other flag-burners in other countries have been enjoying? Is there anything we can say about that situation without taking sides necessarily on the best way of reconciling free speech and respect for national symbols?

7. The Agency Problem: The Top-Down Approach A big question mark hangs over the use of the principle Treat like cases alike in an international context. “Treat like cases alike” sounds like an admonition addressed to a particular agent. But surely the point about foreign cases and American cases—surely the point about Hopkinson and Texas v. Johnson or about Roper and the global consensus—is that there is no single agent or no single institution that could be condemned for treating them disparately. Treat like cases alike doesn’t seem to be violated by anyone when government G treats case X in one way and government H treats case Y, which is similar to X, in a different way. It is like a child who complains that her friends are allowed to stay up late on Sundays whereas she has to go to bed at 7:30: “It’s not fair!” she says. And we respond that no one is being unfair; other parents’ practices are not binding here; that’s not how we do things in this house. We don’t determine the bedtime of your friend, so we are not being unfair to you when we send you to bed at a different time. And your friend’s parents don’t determine your bedtime, so there is nothing unfair on their part so far as your having an earlier bedtime is concerned. No one is being unfair.36 We might say, analogously, that it cannot be fairness that requires a New Zealand judge in Hopkinson to follow an American precedent about flag burning even when all the circumstances are the same. Why? Because the New Zealand court was not responsible for what was done in Texas v. Johnson—from which it follows that the New Zealand court has no duty of fairness to let Hopkinson off as well.37 Other parents’ practices are not binding in this house. This represents a serious difficulty for principled defenses of the invocation of foreign law that rely on the value of fairness or consistency. It is not a problem for the pragmatic defenses of consistency I considered in section 3:

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if consistency is pragmatically valuable, then any agent who has the ability to promote it should do so. But it does seem to be a problem if the basis of the principle of legal harmonization rests on a principle of fairness that is usually addressed to a single agent: Treat like cases alike. There are two ways to respond to this point about no single agent in the international context. The first is to stretch to try and find a single agent, to cover the cases even across national boundaries. The second is to argue that the single-agent requirement is in fact dispensable. I shall consider both of these, but I will put most weight on the second. For maybe it is a mistake to push too hard on the single-agent point. We surely don’t want to end up saying that what goes wrong when like cases are treated differently is just a failure of Kantian rationality on the part of some individual agent, and that the focus of concern is on the agency of the person who treats the two cases disparately rather than on the disparity as experienced by the people who are suffering the disparate treatment. To treat this as an agent-relative concern or a concern about agency as such seems to shift the moral focus away from where fairness demands it should be: on the individuals whose fair or unfair treatment is in question.38 If we really do think of the harmonization of law in the world as an issue of fairness, we ought to be focused primarily on the people affected and think in terms of their having a claim to be treated alike, a claim that is incumbent on all the agencies that have dealings with any of them. This would be a sort of bottom-up demand for fairness rather than a top-down approach. This claim I consider in sections 8 and 9. However, before doing that, I want to give the top-down approach its due. Can we not find or define a single agent or institution to cover the cases even across national boundaries—a single agent or institution on whom it is incumbent to treat like cases alike in the world? We know that for certain purposes the nation-states of the world do operate as a single system. For example, they jointly administer the arrangements whereby everyone is supposed to be accorded citizenship of at least one country—the system by which the world and its population are divided, in what we hope is an orderly manner, into territories and citizenships, with not too many ragged holes for stateless persons to fall through. Nation-states have joint responsibility for the integrity of that network, and it is therefore incumbent on each member of the state system to apply the principles of the network to its own subjects consistently with the way principles of the network are applied by other states to their subjects. I think this helps explain at least one case involving the citation of foreign law by the U.S. Supreme Court. In Trop v. Dulles (1958), the Supreme Court ruled that

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depriving an individual of his citizenship was an impermissible punishment; one of their grounds for thinking this was that “the civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.”39 But this is a very special case, turning (for present purposes) entirely on the fact that what was proposed as a punishment was something which would redefine an individual’s relation to the state system as a whole. We cannot say that about the capital punishment cases or the other cases in which, recently, foreign law has been invoked. Perhaps the most promising possibility is to show that the legal systems of the world—or at least the ones whose practices we are trying to harmonize—are linked together into a single administrative system. We do this with courts: different courts may belong to the same system, and it may be the system that is required to treat like cases alike notwithstanding that it acts through the agency of different judges or panels or circuits of judges. Decisions by different courts in a single legal system can be imputed to the state as a unitary actor. Conceivably this might work for the legal institutions of an empire: citizens of Rome were entitled to be treated consistently throughout the empire. Something similar might have been true of Great Britain and its dominions and colonies in the late nineteenth century. But it was not true by the mid-twentieth century or probably earlier. Some Commonwealth countries maintained a substantial link with British judicial institutions until quite recently. In New Zealand the right of appeal to the Privy Council was abolished in 2003,40 and the best-known case on the death row syndrome is a Privy Council decision pertaining to Jamaica.41 But even in these instances care was taken to ensure that the Jamaican right of appeal to the Privy Council and the New Zealand right of appeal to the Privy Council did not make the Privy Council into a single decisionmaker in right of both New Zealand and Jamaica. It operated in a distinct legal capacity in each case, much as Queen Elizabeth operates as a distinct sovereign in each case: Queen of New Zealand and Queen of Jamaica, respectively. Some jurists in the Commonwealth have toyed with the idea of a Commonwealth-wide Supreme Court or a Supreme Court for the Pacific.42 But it has come to nothing. Even when judges in New Zealand and Australia hear appeals for the smallest South Pacific nations, they act pro tem as part of the judiciary of the relevant micronation rather than as judges of some informal confederation.43 The upshot is that if the courts of the Commonwealth nations cannot be said to constitute a single system, the courts of the United States taken together with, say, the courts of the Commonwealth and the courts of Europe will hardly be susceptible to that characterization.

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We must also bear in mind the sort of unity we are looking for. Not just any sort of judicial camaraderie will do to rebut the agency problem. Anne-Marie Slaughter has spoken about the emergence in the world of a “global community of courts.”44 She says that judges recognize each other “as participants in a common judicial enterprise . . . with identifiable organizing principles” and that this sense of community represents “the gradual construction of a global legal system.”45 She goes on to say, “The institutional identity of all these courts, and the professional identity of the judges who sit on them, is forged more by their common function of resolving disputes under rules of law than by the differences in the law they apply and the parties before them. It stretches too far to describe them all as part of one global legal system, but they certainly constitute a community.”46 Slaughter has presented an attractive picture of networking among judges at a number of levels.47 I am very sympathetic to this approach. But to ground a requirement of consistency and to provide the sense of a common agent on whom it would be incumbent to treat like cases alike, it is not enough for the judges to like each other, bond, and enjoy cocktails together in Florence, Cape Town, The Hague, or Martha’s Vineyard.48 We have to have reason to describe them as a unit for the purposes of the principle of fairness, and that means identifying them, in effect, as constituting a single locus of authority and perhaps coercive power. In the area of human rights, are the governments of the world combined into a single agency by the fact that they all accept the same universal principles? I don’t think that by itself is enough. The parents in my bedtime example, having read Dr. Spock, might accept and try to apply the same principles of child rearing, but that fact doesn’t make them a unit for the purpose of fielding complaints about unfairness. One set of parents interprets the child-rearing principles to require an early bedtime, and the other set of parents interprets them to require a somewhat later bedtime. They are two separate families, and it seems there is not yet any ground for a complaint about inconsistency. What about the fact that the nations of the world have all signed the same treaty or covenant about human rights, like the ICCPR? Does that not make them into a single entity so far as consistency of treatment is concerned? Doesn’t the existence of the treaty regime bind states together into a single system, resolving jointly as well as severally to promote human rights. Possibly the answer is yes. But one should not exaggerate the possibility. The prime responsibility of states party to the ICCPR is responsibility (under article 2) for their own conduct, not other countries’ conduct. There is formal provision for states to complain about one another’s rights

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violations under article 41(1) of the ICCPR, but apparently it has never been used, and only forty-seven states have signed up for participation in that facility.49 Nation-states also take responsibility for human rights in the world in another sense. They hold themselves ready to engage in “humanitarian intervention” for the most egregious violations. Joseph Raz says we should actually define human rights as “rights which set limits to the sovereignty of states, in that their actual or anticipated violation is a (defeasible) reason for taking action against the violator in the international arena.”50 Since this sort of intervention is in principle a matter for the whole international community—even though it is not always under the formal control of international institutions like the U.N. Security Council—it seems to follow that there will be some pressure on countries to keep their understandings of the rights whose violation might precipitate these interventions consistent with one another. So the agent with responsibility to treat like cases alike is the international community that might authorize intervention on some of these cases. However, it is not clear whether this extends to their understandings of rights generally, in a way that would affect the judgments of courts on rights issues in which the international stakes are not so high. A case can also be made with regard to the unity of the members of the Council of Europe under the ECHR and the work of the European Court of Human Rights (ECtHR). There is no overarching government responsible for administering the ECHR—the European Convention regime is quite different from the European Union—and the ECtHR has no power of itself to enforce any of its edicts. But we still think it appropriate for the ECtHR to treat like cases alike wherever they arise in Europe: a case about inhuman and degrading treatment in Russia is to be dealt with on the same broad principles as a like case in Britain (subject to whatever concessions are made to national individuality by way of “margin of appreciation”). Though Russian nationals are dealt with by the Russian state and British subjects by the British state, the ECtHR is required to address the question of their rights on the basis of a single consistent, harmoniously administered scheme. This is an interesting case because our intuitions support the idea that the ECtHR should deal with like cases alike across countries, even though it is not itself responsible for enforcing the treatment it says they ought to receive. Further arguments along these lines might disclose a top-down locus of responsibility for fair, evenhanded administration of rights across countries. And that discovery could be leveraged into an explanation of why it is important for courts in any one country to pay attention to the way in which fundamental rights are administered in other countries and to play their

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part in maintaining global evenhandedness. But I suspect a stronger case can be made by abandoning the quest for a single constituted agency at the top with responsibility for treating like cases alike in favor of considering a bottom-up approach.

8. The Community of Rights Bearers When we say it is important for like cases to be treated alike, what is the focus of our moral concern? It sounds odd to say that it is on the agent responsible for the inconsistent treatment, as though something bad is happening to him when he acts unfairly. True, he may be the source of the problem, but the problem itself is what happens to one or another of the persons who are subject to him. The complaint of unfairness is made on their behalf, and if we want to understand what is wrong with this sort of unfairness, it is to their plight that we should turn. All this suggests we should be very careful about the agency demand, that is, about the proposition that there can be no problem with inconsistent treatment so long as there is no identifiable agent responsible for both the actions that constitute the inconsistency. In my view, the complaint about inconsistent treatment sometimes does not presuppose a single agent, though it can lead to a demand that one be set up to ensure consistency. Here is an analogy. Imagine a large refugee camp after a famine or humanitarian emergency, where, as often happens, several aid agencies and NGOs are working side by side with the same large population in the same camp. Suppose one of the organizations becomes aware that the provision it is offering the refugees is quite different in quantity and quality from the provision that the other aid agencies are offering to members of the same population in the same camp. Oxfam, for example, is giving two meals a day to the people in the north part of the camp, and other agencies are giving one meal a day to people in the southern sector, even though the people in the north are no more needy and no more deserving than those in the south. And everyone can see what is going on. It seems to me that Oxfam and indeed all the aid organizations would have to acknowledge that there is a problem here—a problem that does not evaporate or cease to be of concern when it is pointed out that no single institution is treating anyone inconsistently. The people in the south are likely to be distressed by the disparate treatment. They are likely to complain that their treatment is unfair. They may demand that like cases should be treated alike. And that demand does not presuppose a single agency responsible for all the treatment, although— and this is important—the complaint about unfairness may become the

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basis for a demand that the various agencies should start to behave as a unit. In other words, the demand for fairness could be a reason for the various entities to begin working as a system; their working as a system is not a precondition for the legitimacy of the demand. Another analogy: A widow and a widower enter a romantic relationship. Each has children, and the children are introduced to each other and sometimes accompany their parent on visits to the other party in the relationship. Sometimes the children sleep over when their parent does, and even though the two households never formally merge, occasionally, sometimes for days at a time, the two parents and all the children live under one roof. Now suppose the familiar complaint about bedtimes comes up. The widower’s children complain that they have to go to bed earlier than the widow’s children, though they are no younger. They say their father is being unfair by sending them to bed earlier than the widow sends her brood to bed. The response I envisaged at the beginning of section 7 may or may not be appropriate now, depending on the circumstances. Everything will depend on how far the children have been effectively merged into a single community, a single family. That is not just a matter of asking whether the widow and the widower have merged into a single parental unit. Whether they should regard themselves as acting as a single parental unit, making joint and consistent decisions about the children, will depend on what the overall situation with the children is. Even if the couple don’t want to constitute themselves as a single parental unit, they have to start thinking and acting in that way after a certain point has been passed in the merger of their children into a single community. Again, the identification of an agent with the responsibility to act consistently follows, rather than is presupposed by, there being a community of subjects among whom complaints of inconsistency may reasonably be made. The point of the analogies is to illustrate that the case in favor of consistency, that is, of treating like cases alike, can be made, as it were, from the bottom up. We look to those among whom complaints of disparate treatment might be made and ask whether they are related to one another in a way that would make sense of those complaints. Perhaps their all being subject to the authority of one agent is one way of being so related. But it is not the only way. It is not even sufficient to generate the demand for consistency. Suppose a man is a secret bigamist and has a second family over whom he exercises parental authority. There is nothing unfair about his requiring an earlier bedtime for his first family than for his second family, at least not till they become aware of each other and are embroiled in the sort of interconnectedness that makes sense of these grievances.

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Returning to the demand for transnational harmonization in the way fundamental rights are administered, I will assume that several countries all have roughly similar bills of rights. But the bills are independent of each other. Initially, there is no single authority administering rights in all of them. Still, people in one country are aware of how individual rights are accorded to similarly situated people in the other countries. They know their government is supposed to be responding to the same principles, the same concerns, and the same circumstance as the other governments, and so they wonder about fairness and why the governments haven’t worked together to ensure that, in this world, like cases are treated alike. Such points will be sharpened in cases in which the movement of population back and forth between two countries is frequent, as in Australia and New Zealand. Under these circumstances I believe it is possible to begin thinking about all peoples as members of a single community insofar as the administration of human rights law is concerned. I don’t mean to be fanciful about any broader cosmopolitanism.51 I am talking not about an all-purpose global community but about something like a club all peoples are members of, one dedicated specifically to advancing the idea of human rights for all, to pressuring governments (from whom we all have a lot to fear in this regard as well as a lot to hope for) to take rights seriously, and to watching out for each other when it comes to rights.52 It is not easy to state this conception precisely, but it goes something like this. Neither modern human rights law nor national bills of rights came into existence by magic. Historians trace the two ideas to the activity of certain elites: philosophers and statesmen at end of the eighteenth century and a small group of influential statesmen and diplomats in the decades following the Second World War. Elites were certainly the immediate sponsors of these ideas. But there is a broader sense in which the emergence of individual rights guaranteed by law was the product of a popular movement among the rights bearers themselves. The people themselves—the peoples themselves—indicated that they were no longer willing to be ruled without these layers of protection and indeed that no one should be willing to be ruled without these guarantees. It was not the rulers of the world, but the people of the world who insisted on this arrangement, though the rulers did respond affirmatively and more or less enthusiastically to their demands. In the previous section I mentioned Raz’s conception of human rights as rights that it is appropriate for outsiders to support even if that involves intervening in the affairs of other sovereign states. Raz has also pursued the idea of shared responsibility among peoples for one another’s rights, not just among states:

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One of the most important transformations brought about by the pursuit of human rights has been the empowerment of ordinary people, and the emergence of a powerful network of nongovernmental as well as treaty-based institutions pressurising states and corporations (and, to a lesser extent, international organisations) in the name of individual rights. The human rights movement launched a new channel of political action, which continues to be a major corrective to the concentration of power in governmental and corporate hands. . . . The importance of human rights . . . is in affirming the worth of all human beings, and in distributing power away from the powerful to everyone, including any group or association willing to advocate and promote the interests of ordinary people.53

This shared sense of each other’s rights is rooted, Raz says, in “the common conditions of life today, especially in view of the worldwide broadening and deepening of those conditions in the rapidly evolving circumstances of the emerging world order.”54 In this way, then, the peoples of the world have constituted themselves as a single community so far as the demand for human rights is concerned. We look out for each other in this regard. And we develop a global consensus on rights to help sustain certain demands for rights that may be made here and there in the world as well as to scrutinize and perhaps downplay or discredit demands that strike the global rights community as fanciful or utopian. The sense of community here is partly reinforced by institutions: I mentioned the role of regional courts like the ECtHR and the halfhearted efforts of states and international institutions to authorize humanitarian intervention. But the argument I am making here is a bottom-up argument. It is because we, the individual rights bearers, know and care about our own rights and others’ rights that we might voice legitimate concern for harmonization—so that we will all be treated by the same standards. With this sense of community as background, we have moved, by the logic exhibited in analogies of the refugee camp and the merging families, to a situation in which it is appropriate for the members of that global community of rights bearers to voice concern about inconsistencies and disparities in the administration of fundamental rights and to complain of unfairness if like cases are not treated alike in the world. I mentioned at the beginning of the chapter the general limitation provision found in many bills of rights: that rights are subject to such “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Language something like this is standard in various modern bills and charters of rights around the world. This was the provision whose application to free speech the New Zealand court

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considered in Hopkinson v. Police, and it is very similar to the one whose application to nondiscrimination the South African court considered in President of the Republic v. Hugo (see section 2 in chapter 4).55 These “reasonable limit[ation]” clauses are based on a shared sense that claims of right sometimes need to be modified for the sake of the common good, and they embody a common standard for evaluating such limitations: the general idea is to look to what can be justified in a free and democratic society. There is an obvious danger that clauses like these will be used opportunistically as a sort of get-out-of-jail-free card for states and their publics, that is, countries will use them as a way of avoiding political costs associated with particular rights, to the detriment and demoralization of the individuals or minorities who were relying on the rights in question. I can imagine an individual complaining that the reasonable limitation clause was being administered inconsistently to his detriment, as between one legal system and another. Other flag-burning statutes are not given the benefit of this clause, but now in exactly similar circumstances the flag-burning statute of his country is being upheld. He might say, “I have no quarrel with a reasonable limitation clause, but when it refers to a common idea, it is only fair that it be administered consistently.” The phrase “demonstrably justified in a free and democratic society” seems to mean justifiable in any free and democratic society, and it seems to me that cries out for us to take a look at what other free and democratic societies have regarded as justifiably consistent with their commitment to rights. That’s the sort of case, I think, that can be made in favor of global fairness and in favor of the demand for harmonization that is based on that idea. And I believe that that, perhaps together with the point about learning, furnishes the best explanation of what is going on when courts in one country pay attention to what courts in other countries are doing about fundamental rights.

9. Dworkin on Integrity The jurist who has done more than any other to deepen our understanding of the role of consistency and evenhandedness in the administration of law is Ronald Dworkin. His book Law’s Empire is about the role of integrity in legal reasoning, by which Dworkin means precisely a nonpragmatic requirement of treating like cases alike: “It requires government to speak with one voice, to act in a principled and coherent manner toward all its citizens, to extend to everyone the substantive standards of justice or fairness it uses for some.”56 In his earlier work Dworkin used the term

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“fairness” to explain the importance of keeping faith with earlier decisions: the question, he said, is “whether it is fair for the government having intervened in the way it did in the first case, to refuse its aid in the second.”57 In his later work he adopted the language of “integrity” and gave the term “fairness” a different use;58 but the two ideas are very close. Integrity requires judges in particular to pay attention to the coherence of what they are doing in any one case with what is also done in the government’s name in other cases. This is their way of helping redeem the “promise that law will be chosen, changed, developed, and interpreted in an overall principled way.”59 Does Dworkinian integrity support the case I have been making? And if so, to what extent? As we saw in chapter 3 in the discussion of Riggs v. Palmer, Dworkin’s idea of principles is helpful in conceptualizing the kinds of legal norms that emerge as a result of global consensus. But Dworkin didn’t address the transnational character of the principle appealed to in Riggs, and his discussion of integrity was developed much later. I want to try to bring together the discussion of integrity and the discussion of “universal law administered in all civilized countries.”60 I begin with why integrity is supposed to be important. On Dworkin’s account, it is not so much for any pragmatic reason, like certainty or stability, but for the contribution it makes to political legitimacy. In any modern community there will be disagreement about the norms that ought to be enforced, and so inevitably many people will have to live and comply with norms to which they are morally or ideologically opposed. By offering such people a promise that whatever norms are enforced will be enforced in a principled, consistent manner, we can present our society to them as a sort of community that has a claim on their obligation. Dworkin believes in an associative rather than a consensual approach to political obligation. Our duty to comply with a set of social principles, even those we vote against, is rooted in our association with one another in political community. But not every collection of persons is the sort of association that can ground requirements of this kind: it must be a principled association, in which we all accept that we are bound together in a common enterprise enjoying reciprocally the benefits and enduring on a fair basis the burdens of life under a common set of principles in circumstances of disagreement.61 If integrity were not an important factor, it would be mysterious why judges insist on looking at what other courts have done and at what has been done in the past by their court in deciding how to dispose of some hard case that presents itself now. Maybe we can learn something from what our predecessors have done, or maybe there is some pragmatic value in

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predictability, but Dworkin does not believe these factors come close to explaining the relentless way in which we focus on lines of precedents and try to work out their implications for the present case, long after any hope of certainty or predictability has evaporated.62 We worry away at the interpretation of existing and past legal materials because, whatever else we want, we also want to ensure some sort of principled consistency between what we are deciding now and what else has been decided in our name in this community. In Law’s Empire these claims are developed wholly within the context of a single nation-state, and the possibility which is my subject matter in the present chapter—the possibility of extending the requirement to treat like cases alike to cover cases decided in several nation-states—is not considered at all. “Integrity,” Dworkin says, “holds within political communities, not among them. . . . Each sovereign speaks with a single voice, though not in harmony with other sovereigns.”63 The relevant association or community in Law’s Empire is a national community, and the sort of inconsistency, or failure of integrity, that Dworkin wants to avoid is a checkerboard of disparate standards administered in one and the same country. Since 1986, when Law’s Empire was published, Dworkin has said in conversation that he believes that something like integrity does provide a jurisprudential basis for the attention the Supreme Court pays to foreign law. But some work has to be done in his theory to reach that conclusion. An intermediate case has to do with law in a federal system. Dworkin says, “There is no violation of political integrity in the fact that the tort laws of some states [in the U.S.] differ from those of others even over matters of principle.” This is so either because they are to be regarded as separate communities or because they are subject to a single, consistent set of constitutional principles which permit this sort of disparity (within principled limits). But on some matters, the laws administered in different states are subject to overarching requirements. The Fourteenth Amendment is interpreted to require all fifty states to recognize and be bound by the same set of fundamental rights held by all citizens. And then there are cases that are controversial in between. Some opponents of the Supreme Court’s abortion jurisprudence believe the matter should have been left to the states. Dworkin concedes that might not seem to violate integrity: “Each state would retain a constitutional duty that its own abortion statute be coherent in principle.” But, he says, a question of integrity would remain: “whether leaving the abortion issue to individual states to decide differently if they wish is coherent in principle with the rest of the American constitutional scheme, which makes other important rights national in scope and enforcement.”64

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His own view is that since abortion law raises the question of whether the fetus is a person for constitutional purposes, that question must be settled nationally not state by state, since personhood is a key element in the federal Constitution.65 Unfortunately, this argument does not help us with the transnational case. Dworkin assumes, as he is perfectly entitled to do, a unified national sovereign administering federal law, and he argues that abortion has to be settled at the federal level because of what else that unified national sovereign does for the rights of its citizens. However, when we move from national law to law in the world, we no longer have any entity that has this sort of responsibility. And so it seems the same agency problem arises. In one of Dworkin’s formulations, integrity is the duty of the government to speak with a single voice.66 But there is no single government talking to the flag-burner Hopkinson and the flagburner Johnson; there is one government talking to Hopkinson and another to Johnson, and it’s not clear whom the duty of integrity is incumbent upon. Sometimes, however, instead of a state-based approach, Dworkin says that integrity requires members of a community to treat one another (and to demand treatment for one another) on the basis of a consistently administered set of principles.67 That is more like a bottom-up approach. And that is the key, I think, to extending Dworkin’s analysis beyond the nation-state: we have to expand the sense of community that underlies the demand for integrity, focusing, as we did in section 8, on the idea of a community of fundamental-rights bearers extending around the world.68 I guess we might simply adapt the argument made in section 8 to the framework of Dworkin’s theory. Given that there is this worldwide community of people that care about one another’s rights, doesn’t a demand for integrity arise naturally out of that in the way it arises out of national community in the pages of Law’s Empire? I would like to think so, but there are a couple of hurdles to overcome. First, the argument about community and integrity in Law’s Empire proceeds in connection with a concern about coercion, obligation, and political legitimacy. It has to do with the circumstances under which members of a given community might feel obligated to norms they disagree with, and the conditions under which it might be legitimate to deploy coercive force to uphold the law. True, there is an element of coercive force involved in the argument I set out in section 8: the element of humanitarian intervention. But it is not clear to me that it is involved in the right way to ground the demand for integrity. We can’t just assume the Dworkin argument goes through whenever the words “coercion” and “community” are in

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play: we have to be sensitive to the detail of how the argument from legitimacy to integrity is supposed to work. Or consider the elements of obligation and reciprocity. To be bound together in Dworkinian community is to think of oneself as obligated to the others in some sort of reciprocal respect and mutual assistance, so that what others in the community are willing to do for you, you are willing to do for them. The mutuality of this sense of obligation helps explain why we would look to what we have done for each other in the past or why we interrogate what we are doing for each other already, in order to get a sense of what it would be to go on in that same associative spirit. Again, there is something of this mutuality in the promise of external concern and humanitarian intervention for the sake of one another’s rights. But that is not the same as the obligations correlative to rights. When I illustrated the point about reciprocity in section 6, I used a private law analogy: X, a perennial defendant in torts suits, finally gets the opportunity to act as a plaintiff and might rightly demand that she should be allowed to benefit under the very same principles whose burden she has borne for so long. Is there anything equivalent to that sort of reciprocity in relations among members of the global community of rights bearers I have identified? It would seem not, for human rights are held in the first instance against governments, not horizontally against other right bearers. Maybe that supposition is too quick. Some scholars, and indeed some courts, do take the horizontal application of certain rights seriously. 69 Or consider again the argument about the general limitation provision found in many bills of rights. I said that a clause like this represents the belief that rights sometimes need to be limited for the sake of the common good. We think, carelessly, that it is governments who make the case for such limitation; but often they do so because of public pressure, because the public do not want to suffer the costs that respect for individual rights sometimes imposes on them.70 Rights, as Dworkin has argued on other occasions, are held not just against the government, but also against the majority’s pursuit of its own interest:71 they constrain utilitarian and other, similar calculations of public benefit. When a right is limited, then, many members of the public benefit, for example, from a safer or more orderly environment, one in which there is less protest or fewer threats to security. But those who benefit in this way are also right bearers, bearers, if not necessarily potential exercisers, of the very rights that are being limited. Insisting on a disciplined, consistent use of limitation clauses is thus a way of insisting that members of the community of right bearers act fairly and consistently to one another in the demands they make in favor of rights and in the demands they make

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for their limitation. This consideration might provide the appropriate background for a demand for integrity. Second, however, we need to consider how important the thickness of community is for Dworkin’s model. In section 8, I imagined a rather thin ad hoc worldwide community of fundamental-rights bearers interested in their own and one another’s rights. But it is not clear that this model can extend beyond the arena of human rights to encompass all the topics that modern law addresses. In Law’s Empire it is crucial that the sense of community and reciprocal obligation be diffuse and multifaceted: “The community must respect principles necessary to justify one part of the law in other parts as well.”72 Without that thickness or density, the demand for integrity does not really take hold. This is a serious impediment to the generalization of Dworkinian integrity beyond the borders of a national legal system, where all sorts of matters are comprehended. It will remain an impediment unless one can envision or construct the sort of community background for the ius gentium generally that I have constructed for the specific part of it that deals with human rights. But maybe I am wrong. Perhaps we can ground a demand for global integrity in a thinner sense of community than the one Dworkin appeals to in Law’s Empire. If we can, then Dworkin’s theory will explain why—at what he calls the pre-interpretive stage73—judges in any one country may have to include foreign decisions among the materials they interpret when they approach a difficult question about rights. The chain novel the judge is writing will include chapters written by judges outside his jurisdiction as well as chapters written by previous members of the same court; and he will sense an obligation to try and make his new chapter consistent with all those other chapters, foreign as well as domestic.74 Dworkin’s account of this process also has the advantage of explaining why foreign precedents might have weight but not be fully binding in our courts. Failing to cite a relevant foreign precedent might be seen as an embarrassment once the force of these considerations about harmonization is recognized; but it will hardly be fatal to a brief or an opinion.75 Integrity is not the only thing that matters: we all think that justice (getting it right about rights) matters too, and sometimes our attachment to justice, as we understand it, might override the demands of integrity, qualifying or limiting our allegiance to treating like cases alike. Integrity is just one vector among several in our political morality.76 In addition, the account I have developed helps explain why foreign law might have somewhat less weight than domestic precedents, even nonbinding domestic precedents, in our courts. For even if we can identify a

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sense of community that supports a demand for global integrity, that doesn’t discount the integrity demands arising out of the firmer, thicker sense of community that binds us together at home. The two have to be reconciled, and a string of domestic precedents will likely prevail in the event of any conflict. Generally, then, for the arguments I have set out in the last two sections: consistency, harmonization, and integrity are not the be-all and end-all, certainly not in their global manifestation. Other things must be taken into account as well. I said the quest for the universal truth about rights doesn’t explain the need for consistency, but it is important nonetheless, and often it will have to be balanced against the need for consistency, such as it is. Demands of local integrity and of predictability and certainty within particular legal systems must also be given their due. All in all, the argument for treating like cases alike is pretty modest, and it certainly wouldn’t support anything remotely like courts in one country having to regard a decision by a court in another country as a binding precedent. Still, I have given an account of why foreign law might have some weight with us, even over and above its immediate persuasiveness. We are bound into a global community, especially on questions of fundamental rights, and we cannot ignore the concerns about fairness and evenhandedness that might arise in the world on that basis.

CHAPTER SIX

Democratic and Textualist Objections

1. Democracy and the Ius Gentium One of the most persistent criticisms of the U.S. Supreme Court’s recent recourse to foreign law is that it is undemocratic. The practice allows the decisions of foreign courts to have influence over the fate of Americans, who have neither participated in the election of the politicians who appointed the foreign judges, nor as a people adopted or had any opportunity to consider or amend the charters and constitutions these foreign judges are interpreting.1 True, it does not give the foreign judges direct authority over Americans, but through the medium of judicial review it subjects them, in the words of Justice Scalia, to “the subjective views of five Members of this Court and like-minded foreigners.”2 Usually those who make this objection are attacking what I have called the retail or piecemeal use of foreign law, not the ius gentium argument. However, we should not expect the ius gentium argument to improve matters on this front, at least not immediately. The idea of ius gentium contemplates the idea of a whole body of law applicable in this realm that is not at the mercy of our elected lawmakers. And that body of law is supposed to be constituted by a consensus among political and judicial decisionmakers, the overwhelming majority of whom are not accountable directly or indirectly to the Americans who will be affected by their decisions. The objection is a serious one. In a way, it is linked to the position laid down in Erie Railroad v. Tompkins (1938). When he insisted in the Black & White Taxicab case—a view later vindicated in Erie—that “law in the sense in which courts speak of it today does not exist without some definite authority behind it,”3 Justice Oliver Wendell Holmes need not be read as some mindless authoritarian positivist. He can be read as insisting that law must not float free of political and democratic accountability, which is 142

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exactly what will happen if we posit a law that is not dependent on the decisions of a specific sovereign.4 Like airy postulation of general common law, an airy reference to ius gentium enables us to evade the question of political responsibility. If we insist that any law applied to us must come attached to a political label, the name of the authority who made it, then we can at least determine our position vis-à-vis that law so far as democratic control and accountability are concerned. If it has the name of a federal or an American state lawmaker attached to it, then well and good: we know how to control that sort of law. Even if it has just the name of an American judge or an American court attached to it, we know how to choose and discipline its makers. If it has the name of a foreign court or a foreign lawmaker attached, then as good democrats we know to resist its imposition. But if it has no name at all or a nonsense name like world law, ius gentium, or the law of all the nations, we should suspect that something is being put over on us to conceal the absence of political accountability. So runs the democratic objection. The insistence that Americans be governed only by American law should not be condemned out of hand as know-nothing parochialism. There is something dignified and important about a people giving law to themselves and owning the law by which they are governed, and something abject about a people submitting tamely to the imposition of law in whose enactment they have had no say or over which they have no political control.

2. The Controversy About Judicial Review I sometimes hear it said that it’s strange that I, of all people, should be defending the practice of citing and relying on foreign law in constitutional cases, associated as that practice is with the enhancement of judicial power at the expense of local democracy and exercised as it is in the context of strong judicial review of legislation, of which I am a sworn enemy. 5 By “strong judicial review,” I mean judicial review of legislation that enables judges to strike down or decline to apply enacted statutes they find inconsistent with the provisions of the constitution or the bill of rights. This is the system that operates in the United States, in Germany, in South Africa, and in many other countries. In a system with weak judicial review (the system currently operated by British courts under the Human Rights Act), the courts may formally express an opinion about the incompatibility of a statute with fundamental rights, and that opinion may have some further constitutional effect; but the court is not entitled to refuse to apply the statute, though it may insist on applying only a strained interpretation of it

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that is consistent with fundamental rights.6 Roper v. Simmons was an instance of strong judicial review, since the Supreme Court in effect refused to allow the Missouri death penalty statute to take effect according to its terms; and Lawrence v. Texas was an example of strong judicial review because the Supreme Court struck down a Texas sodomy statute.7 In each case the Supreme Court invoked foreign law to bolster its exercise of strong judicial review. And so people ask: why is Waldron, an opponent of strong judicial review, arguing in favor of the Court’s use of foreign law to this end?8 Surely if I were consistent I would associate myself with those like Justice Scalia who denounce recourse to foreign law as undemocratic. Surely, like him, I should be “appalled by the proposition that . . . the American peoples’ democratic adoption of the death penalty . . . could be judicially nullified because of the disapproving views of foreigners.”9 James Allan is a friend of mine and a fanatical opponent of judicial review.10 In an article he published in 2008—an article reeking with a sense of disappointment and betrayal—he said, “Waldron’s underlying thesis in his ‘Foreign Law’ paper is at odds with the core of his own anti-judicial review, anti-bill of rights position.”11 He speculated that the reason for this (alleged) inconsistency was that I strongly disapproved of the juvenile death penalty, the substantive issue in Roper v. Simmons, and that I was willing to do whatever was necessary, such as write in favor of whatever jurisprudence would work, in order to “support [my] substantive moral opinion on this matter.”12 And he chided me for this betrayal: The anti-Bill of Rights Waldron who punctures the pretensions and purported moral superiority of the unelected judiciary . . . and who emphasizes the fact that dissensus and disagreement on virtually all rights questions is to be expected, with no side easily characterized as evil, stupid, or uninformed—that Waldron lays out a demanding moral path. My understanding has always been that on that Waldronian moral path, when I find that a majority of my fellow citizens disagrees with me in their moral judgments, even as regards the juvenile death penalty, the remedy is not to urge unelected judges to impose my view on the legislature and on all those fellow citizens who disagree with me, even if that urging be indirect and wrapped up in an appeal to the law of nations. The Waldronian remedy is for me to spend a few Saturdays a month campaigning for politicians and political parties who share my view, to write newspaper columns urging a change, to participate in the democratic process in an effort to change opinions. If Waldron is hinting in his Foreign Law paper that the juvenile death penalty issue is somehow idiosyncratically distinct from other rightsbased issues, . . . then he should tell us why that is. . . . He should avoid erecting an erudite and learned edifice that, at the end of the day . . . makes

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less demanding the path of convincing one’s fellow citizens to revise their rights-based moral views.13

It seems I have some explaining to do. Let us take it step by step. The decision in Roper v. Simmons involved an unelected court modifying the application of a Missouri statute, namely, its legislative provision for the death penalty for murder; accordingly, opponents of strong judicial review should be expected to oppose this use of judicial power. But should these opponents be further offended by the Supreme Court’s reliance on foreign law—the absence of the juvenile death penalty elsewhere in the world—to support its decision? Or does that make no difference to their opposition to this exercise of judicial power? It might seem that they should be further offended. After all, strong judicial review is opposed as undemocratic: the decisions of foreign judges and foreign legislatures have no democratic legitimacy in the United States, so the use of such decisions by American courts seems to aggravate the antidemocratic character of their striking down or modifying American statutes. Though reliance on foreign law does not give the foreign legislators any direct authority over us, nevertheless, it provides the Court with an opportunity to impose on Americans what Justice Thomas has called “foreign moods, fads, or fashions.”14 Certainly the existence of strong judicial review in the United States makes the issue of foreign law more difficult and politically more volatile. People are already uneasy about judges having the authority to strike down what representative legislatures have done, and that uneasiness is bound to be exacerbated by a sense that this power is being exercised on the basis of law that is not American. Background resentment of judicial power in America and reflex opposition to what is called judicial activism probably make it difficult for people to think clearly about the many sources of law that judges have to appeal to in their decisions. Actually, there is no reason in principle why recourse to foreign law should be the monopoly of liberals or judicial activists. Used honestly, the invocation of foreign law might contribute to judicial restraint or to outcomes that are judged conservative or deferential by American standards. Some foreign countries have used American law to that effect: for example, in President of the Republic v. Hugo the South African Constitutional Court used an analysis based on American antidiscrimination law to reach a deferential result, rebutting a challenge to the exercise of presidential power (see chapter 4).15 The crucial thing is to figure out whether recourse to foreign law is consistent with what the Constitution commits us to, so far as the proper

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understanding of its substantive provisions is concerned. Just as we have to decide whether it is appropriate to refer to the historically revealed intentions of the Framers, just as we have to decide how much store to put by the literal meaning of the Constitution’s eighteenth-century language, just as we have to decide how much authority to accord to Supreme Court precedents and to the traditions of governance that have grown up since the framing of the Constitution, so we have to determine how much authority to accord to the opinions of the rest of mankind in interpreting the Bill of Rights. All these issues need to be sorted out as a matter of the basis of constitutional interpretation. I want to argue that this important enterprise is separable from the controversy about the legitimacy or desirability of judicial review. Consider the Eighth Amendment to the U.S. Constitution. I believe that the question of what counts as unacceptably cruel punishment and how we figure that out ought to be separable from the institutional consequences of a court’s finding that a legislated punishment is cruel. In the United States, a finding that a legislated punishment is cruel and unusual will lead to the legislation being struck down or applied by the courts in a modified form. In Great Britain, that finding (or a similar finding that a legislated punishment is inhuman) may lead to a Declaration of Incompatibility, which will likely be followed by a parliamentary amendment. In New Zealand, such a finding may lead judges to strain for an interpretation, often a pretty distant one, which is consistent with the New Zealand Bill of Rights Act (NZBORA). These are three different responses to a single finding about the cruelty or inhumanity of a legislated punishment. But the discussion of the place of foreign law in our jurisprudence is not about that choice: strong (U.S.-style) versus weak (U.K.-style) versus minimal (N.Z.-style) judicial review. It is about the earlier stage of the inquiry, which systems of all three types have in common: how do we determine whether a type of punishment is cruel or inhuman? and what is the place of foreign law and global consensus in that stage of the process? After all, opposition to judicial review does not mean one denies the existence or importance of the law that the courts administer when they exercise this power. I oppose strong judicial review, but I do not deny the existence of the U.S. Constitution or the importance (as law) of the standards set out in the Bill of Rights. In Britain, I do not deny the existence of the Human Rights Act or the European Convention on Human Rights (ECHR) on which it is based or the importance (as law) of the human rights standards that those two documents embody. When I am home in New Zealand, I do not deny the existence of the NZBORA or its importance (as law) or the

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importance (as law) of the international instruments—notably the International Convention of Civil and Political Rights (ICCPR)—on which it is based. In each of these cases, the laws themselves are important and so is the question of their proper interpretation. As far as the use of foreign law is concerned, therefore, everything depends on whether a convincing argument can be made that the proper interpretation of provisions like these requires or permits recourse to foreign law. If a convincing argument can be made, then courts may or should invoke that material. If not, they should leave it alone. What they go on to do with their judgment that a given punishment is or is not cruel or inhuman is another matter. Whatever the constitutional consequences of its decision, a court asked to address an issue such as whether a legislated punishment is cruel or inhuman has no choice but to return the best answer it can give to that question. The court will no doubt stare at the text of the Bill of Rights or its local equivalent for a while and consult its own precedents; it may look up “cruel” or “inhuman” in the dictionary. In America there might be some felt need to read through the diaries of the Founding Fathers or a justice’s tattered copy of the Federalist Papers that he read when he was at Dartmouth to try to figure out what the Founders had in mind when they used this language. To me, it is perfectly intelligible that a court, having done all these things, may still feel that its inquiry is incomplete. It may be aware that it is administering a standard whose wording is similar to, or in some cases an exact echo of, a standard administered in another jurisdiction. The Eighth Amendment and the Canadian Charter of Rights and Freedoms both reproduce the words of the English Bill of Rights of 1689 on the issue of punishment. The Human Rights Act in the United Kingdom deliberately reproduces the language of article 3 of the ECHR. The cruelty or inhumanity of punishment is made an issue in the ICCPR and in the various national bills of rights (like New Zealand’s and South Africa’s) that draw from it. (I will talk more about these textual similarities in section 4.) A court administering such a standard in any one of these countries might therefore want to examine how the same or closely similar standards are administered in other countries. This may be done out of intellectual curiosity, or because it is thought that there is something to be learned, or because it is thought inappropriate to neglect these sources, given that the countries in question, in adopting provisions like these, took themselves to be engaging in a common enterprise. A judge might feel that, having been given this question to answer, it would be irresponsible of him to fail to consider this foreign material, just as it would be irresponsible of him to fail to consider historical precedents or to consult a dictionary or to speculate about framers’ intentions.

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In general, my opposition to judicial review does not mean I am a skeptic about any particular source of law that a court might draw upon. I have doubts about some of them: about Framers’ intentions, for example. But what matters is the argument for using any particular source of law. This applies to precedent, to historic intent, and to foreign law as well. Putting this separability thesis the other way round, I am inclined to say that if strong judicial review is an undesirable practice, then it is undesirable whatever the courts cite as the basis of their decisions. It is undesirable whether particular exercises of judicial review are grounded in the text of a country’s constitution or in the so-called original intent of the framers or in foreign law or in constitutional case law or in the free-standing moral cogitations of the members of the judiciary. On this account, the basis of a given institution’s political legitimacy or illegitimacy is quite separate from the desirability of its using or appealing to any particular set of materials in the course of its decision making. In his “fads and fashions” opinion, Justice Thomas said that “Congress, as a legislature, may wish to consider the actions of other nations on any issue it likes.”16 There the separability thesis is clear. People say it may or may not be a good thing for our elected legislators to consider foreign law, but it makes no difference to the political legitimacy of their actions; it leaves their democratic credentials untouched. Why should we not say, similarly, then, that the citation of foreign law by judges may or may not be a good idea, but that it leaves the issue of their legitimacy untouched. I guess the problem with the separability thesis is that the question of legitimacy of judicial review is not always insensitive in this way to the sort of grounds on which judicial review is exercised. Someone who ponders the legitimacy of judicial review and decides on balance that it is legitimate may find himself wavering from that position when he considers the way in which judges exercise this power. For instance, if citizens thought judges were simply relying on their subjective moral views or their party-political affiliations, then those who had initially been inclined to favor judicial review might rethink their position. They might say something like, “Strong judicial review is okay in principle, but not when it is exercised like this.” The citation of foreign law might be a factor of this kind. It might intensify any misgivings one has about strong judicial review or even tilt the balance. And if it does that for wavering supporters of strong judicial review, surely it should aggravate or intensify the opposition of opponents. Certainly a moderate opponent of strong judicial review may find his opposition growing ever stronger as he sees courts continually citing from sources that themselves fall foul of the democratic standards that motivate his position in the first place.

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Here is another possible route to the same conclusion. Some of us oppose strong judicial review of primary legislation, state and federal, but not of executive action or subordinate legislation or agency rule making.17 But our reason for supporting judicial review of executive action is that we believe it’s important for the executive and its agencies to be held to the standards laid down in legislation enacted by a democratically elective national or state assembly. If the courts begin holding the executive and its agencies and other subunits in the political system to other standards—to standards not laid down democratically—then we might be expected to oppose judicial review in these areas as well. So I do not deny the possibility that someone’s evaluation of the legitimacy of the power of judicial review may turn on the sort of materials judges use and cite when they exercise that power. I do not deny the possibility that the use of foreign law might undermine the legitimacy of judicial review. But it is a strange and contrived possibility, predicated on the preposterous idea that, absent the use of foreign law, judicial review is a democratic practice and that recourse to foreign law pollutes or overturns the democratic credentials that judicial review would otherwise have. For consider the materials that judges in the United States do use, materials that there doesn’t seem to be any problem about their using. Judges of an originalist temper look back to the historic intention of men who lived and thought more than two hundred years ago: the Framers of the Constitution. Now this may or may not be a good idea; but let us not kid ourselves that it is democratic. The Framers may have had democratic credentials in their time, but that doesn’t mean they have them so far as their power over us is concerned, any more than the democratic credentials of a lawmaker in England give him democratic status in our community. I am not arguing here against the proposition that originalism is a good interpretive philosophy. But if it is, it is good for reasons that have little or nothing to do with democratic legitimacy. Or consider the use of constitutional precedent. There is a great debate in the United States about the place of precedent in constitutional law, particularly in interpreting the Bill of Rights. Should the Supreme Court feel strongly constrained by stare decisis, as the plurality opinion suggested in Planned Parenthood v. Casey?18 Or should it say that, since stare decisis is not a matter of principle but is predicated upon certain advantages that are supposed to accrue from stable expectations, and since rights are supposed to be able to trump mere considerations of convenience, such as those that accrue from stable expectations, a precedent should not be able to drive us away from an independently supportable conclusion about what respect for

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rights requires. This is an important debate in constitutional law, and I am not sure which side is winning.19 But the debate has nothing to do with democracy. The use of precedent, if it is justified, is not justified on democratic grounds. Some of the precedents we use are as old as the decisions of the Framers. We didn’t vote for the judges who laid them down or for the judges who, in the intervening centuries, began to hallow the decisions of that first generation of judges with constitutional sanctity. Modern judges in the United States are simply inheritors of lines of constitutional tradition, and we Americans think it perfectly appropriate for them to work within those traditions despite the fact that neither they nor we had any hand in creating them. I say all this not as a way of defending either originalism or stare decisis, but as a way of saying that we have to evaluate the possibility of judges using foreign law in the same way we debate these other sources of constitutional insight and constraint. Talk of democracy is largely a distraction in our consideration of the use of precedent or the appeal to original intent, and I think it is a distraction too in the consideration of foreign law. I will make one last argument about democracy. At his confirmation hearings Judge John Roberts (later Chief Justice Roberts) said the following about “democratic theory” and the use of foreign law: In this country, judges . . . are not accountable to the people, but we are appointed through a process that allows for participation of the electorate. The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory. If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he’s playing a role in shaping the law that binds the people in this country. I think that’s a concern that has to be addressed.20

(I am not sure whether I agree with his assumption that the nomination and confirmation process makes judicial review “consistent with . . . democratic theory”; I think I would use the phrase “adds a scintilla of democratic respectability, but does little to dispel the real democratic concerns about the practice.” But let that pass.)21 Roberts’s concern runs together two issues that need to be separated: (i) What materials are being used? and (ii) Who is using them to reach constitutional decisions? Democratic considerations may be relevant to both questions. With regard to question (ii), the use of foreign law does not detract from the fact that American constitutional cases are adjudicated by American judges, nominated and confirmed as they have

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been in the democratic process Roberts identifies. The invocation of foreign law does not alter that fact. After all, when an American court cites some opinion by a German judge it does not take the case in front of it and send it to Germany for decision. The American court decides the issue itself. So much for question (ii). What about question (i)? Well, in the case Judge Roberts imagined, an American court cites a German decision and may give it some weight in its thinking. And that decision which is cited and given weight is indeed a decision made by someone who has not been through the American nomination and confirmation process and so does not have the scintilla of democratic legitimacy that that process confers. But, as we have just seen, it has that in common with most of the other materials the court uses in deciding the cases that come before it: precedents, original intent, and so on. They too lack the scintilla of democratic legitimacy that the nomination and confirmation process confers. But it still may be necessary to resort to them; the use of them may be required by the best account of what it is to interpret the Constitution responsibly. So once again we are back with the question I have been trying to answer in this book: does the responsible interpretation of the Constitution sometimes also require or permit the invocation of foreign law? To repeat, democratic theory no more helps us answer that question than it does the question about stare decisis or original intent.

3. Ius Gentium and Political Legitimacy Is it not a pity, nevertheless, that the invocation of foreign law introduces this undemocratic element into the deliberations of our courts? It may be just one undemocratic element among others, but isn’t it a pity that with this additional element the reasoning of our courts is shifted even further away from democratic conformity with the sentiments of the American people? I am not quite sure I have formulated that question properly, but I guess the answer is yes. It would be nice if every consideration a responsible court needed to invoke or appeal to in its interpretation of the Constitution came with a seal of democratic approval. It would be nice if the Founding Fathers were still among us, basking in the democratic legitimacy that was conferred on them in the American people’s selection of them to undertake this work of drafting a constitution: then there would be something democratic about original intent. It would be nice if every doctrine and precedent in our constitutional law were endorsed by the American people—endorsed now, I mean, whether or not it was endorsed at the time the precedents were laid down. Then, by following a precedent, the Court could be sure it was

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following the will of the people. It would be nice; but it’s not going to happen. What should one make of this point? The first thing to say is that the absence of this sort of democratic element does not make the normative argument for the use of any of these sources of law or constitutional insight go away. The argument for the use of precedent still sits there, despite the fact that the precedents we use have not been democratically endorsed. And the argument, such as it is, for appealing to the Framers’ intent stands fast, despite the fact that they have no democratic authority among us now and had it when they lived, hundreds of years ago, on the basis of a radically restricted franchise, one with exclusions on grounds of race, sex, and property that we would reject out of hand today. Anything we miss in the way of precedent or Framers’ intent which is needed for responsible constitutional decision making, we need and we miss despite its being nondemocratic. And the same may be true of foreign law For suppose there is something important to be learned from foreign authorities about, say, the meaning of “cruel” in the Eighth Amendment, and suppose, for the sake of argument, that it cannot be learned in any other way. Then failing to learn it will lead to a constitutional decision at home that is to that extent imperfect or flawed. There will be something taken into account that ought not to have been taken into account or there will be something that has not been taken into account that ought to have been taken into account. There will be a line of argument that ought to have been pursued or ought to have been pursued in a different way. Issues will be tangled together which could, if the foreign law had been consulted, have been disentangled, and so on. And someone may die as a result, because flawed or incomplete arguments can lead to bad conclusions, or considerations favoring a different conclusion might end up being given less weight than they ought to have been given, and so on. Something similar may be said about the fairness or integrity argument. If the argument for reference to foreign law is that it is important for countries to work together and harmonize their application of what are essentially common standards of human rights, then those reasons should weigh with our judges even when the foreign laws they ought to be trying to harmonize with are not the products of American democracy. American judges have it in their hands to bring our understanding of fundamental rights into harmony with the understanding elsewhere in the world; or they have it in their hands to widen the gap between American understandings of human rights and understandings of human rights elsewhere. Maybe these possibilities don’t matter; maybe we shouldn’t care about harmony.

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But that’s where the argument should be made, not in this sideshow about democracy. I have argued throughout this book that there is such a thing as the ius gentium and that it is a body of law that it is incumbent on us to pay attention to. It is not binding in the peremptory, no-holds-barred, no-questions-asked manner in which some legal philosophers suppose authoritative law has to bind us. But still, we ought to take it seriously and give it weight in our legal deliberations. Now it is no part of the theory of ius gentium that this body of principles is enacted democratically. It is hard to see how it could be, since it emerges by consensus across the world and often over long periods of time—generations, if not centuries. In section 3 of chapter 8, I will consider whether the modern notion of ius gentium should be focused on legal consensus among democracies; but even if it is, that is not the same as the consensus having democratic credentials in its own right. But again, its nondemocratic character does not diminish its claims upon us. We might wish, fancifully, for a democratic ius gentium, but if a nondemocratic one is all we have, then, assuming there is a case for appealing to it at all, we have to make the best of it. Someone will ask, “What claim does the ius gentium have upon us, particularly in the cases where we disagree with the tenor of its principles? What is the basis of its political legitimacy?” In Law and Disagreement I spoke about “the circumstances of politics.”22 In order to think clearly about the claim that a law or a body of law has upon us, we must take into account two things: one is whether there is a need for a collective decision of some kind in the area that the law addresses; and the other is the existence of disagreement as to what our collective decision in that area should be. Now, as to the second of the circumstances of politics, I argued in that book that the legitimate way to arrive at a collective decision in the face of disagreement is by some method that treats as equals all those who are going to be subject to the rule or arrangement: majority voting among an enfranchised population is the clearest example of this (or maybe majority voting among elected representatives). People must be expected to disagree about almost everything. What is important is that their disagreements be treated as good faith disagreements and that they should respect one another’s opinions sufficiently to accord one another an equal vote on matters of rights so that the issues on which they disagree can be settled democratically. In some cases, however, that respectful way of proceeding is not available. It is not available sometimes in an emergency, when it is important that something be done quickly and decisively—that a decision that can stand in

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the name of us all be made—for the sake of the common good, and there is not time to hold a vote. In that case, anyone or any institution who can, should make the decision, and others should support and comply with it, without cavil, on account of their recognition of its necessity. In these circumstances it is, as John Finnis puts it, “the sheer fact of effectiveness that is . . . decisive.”23 If democratic procedures are available and can be made to work quickly enough, then they should be used; or if they can be brought to bear in even a limited way without undue delay or obstruction, it will be wrong to sideline them. The point is that the urgent need for a collective decision does not evaporate if, for some reason, there is no prospect of resorting to the respectful procedures of democracy. Democracy is not the whole of the basis of political legitimacy. The first circumstance of justice must be given its due, even when there is no respectful way of addressing the second. I’ll illustrate this with the case of international law. Some scholars have argued that we should not accept the authority of international law because it is not made democratically.24 But either international law is needed in the world or it is not. If it is not, then the critics are right: in the absence of a democratically expressed predilection for it, there is no possible basis for its legitimacy. But if it is needed, then that need must be addressed whether or not any democratic basis can be established for its enactment. In the case of treaty-based international law there is an element of democratic legitimacy: treaties are signed by an elected president and ratified by the Senate, an elective institution. But critics direct their attention particularly to customary international law, arguing that “it has a democratic deficit built into its very definition.”25 But again, the acknowledged fact of a democratic deficit does not undermine the point that in the circumstances “the emergence and recognition of customary rules . . . is a desirable or appropriate method of solving interaction or co-ordination problems in the international community.”26 The mere claim that it is important that these problems be solved is not self-certifying. Some of the critics of customary international law may disagree with that, too, in particular cases or in general. But the existence of a democratic deficit does not dispose of the matter because, as I have said, democracy is not by itself the key to political legitimacy. I think the same reasoning can be applied to the ius gentium and to the desirability of our taking guidance from foreign law and the importance of harmonization with foreign law. Arguably these features of ius gentium are morally necessary. And the necessity does not evaporate with the absence of a democratic basis for giving weight to foreign precedents or ius gentium principles.

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It does help certainly that the judges who recognize this necessity, who give some weight to these foreign precedents and take into consideration principles of the ius gentium, are judges of our legal system, with whatever scintilla of democratic legitimacy that confers. People in America disagree with one another about what there is to be learned from foreign law; they will disagree about the order in which to pose and untangle the various questions that a given rights-conundrum involves, and accordingly they will disagree about whether we should try following a pathway through such a conundrum pioneered in other countries. They will disagree about the importance of consistency in a particular setting; they will disagree about how to understand the rights enterprise as a common enterprise shared by various nations; they will disagree about the weight that should be given to the various reasons one country has for remaining an outlier on some issue (because of its confidence that it is right, for example, or its desire to experiment, or because of some felt need to keep faith with its peculiar traditions). They will disagree as much about all these things as they do about any substantive issue regarding rights. I wish all such disagreements about rights were sorted out democratically, so that people could deliberate and vote on what rights we have and how foreign law should be taken into account in the areas where it is arguably important. But the more general point is that grappling with the question of the use of foreign law is indispensable to any intelligent decision making about basic rights. Whoever is charged in a polity with making decisions about basic rights should be prepared and willing to cite to foreign law and should face up to the question of how that is to be done and how to deal with the bearing it might have on issues of rights. The legislators should do this if it is up to them, and so should the voters. And so should the unelected judges, if, as in the United States, issues of rights have been left in their hands.

4. Justice Scalia and Textualism I want to turn now to a different but related ground of objection to the invocation of foreign law—an objection based not on democracy, but on the respect commanded by the constitutional text that our courts are supposed to be interpreting. I have a great deal of respect for Justice Scalia. A few years ago, when I spoke with him, Justice Scalia expressed dismay when he heard I was working on arguments supporting the use of foreign law in constitutional and human rights cases. How, he asked, could a textualist support the use of

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foreign law in cases where our courts have a responsibility to focus on a constitutional text of our own? I am a textualist; I have learned a lot from Justice Scalia’s account of how to approach the interpretation of legislation and from his excoriation of some of the excesses of the American doctrine that statutes should be interpreted in light of the intentions and expectations of the senators and representatives who enacted them. Like Justice Scalia, I believe that the laborious processes of enactment in two chambers and presentment to the president for his assent (or the equivalent in the case of state legislation) give the text of a statute special authority that extraneous sources lack.27 I think I am also a textualist on constitutional matters, though that is complicated by an uncertainty as to whether self-styled textualists have been successful in holding the line between text and history in the case of the Constitution that they have rightly insisted on holding in the case of statutes. Constitutional textualism sometimes veers into originalism, especially intended-application originalism, in a way that would seem indefensible in the statutory context. Justice Scalia combines textualism with opposition to reliance on foreign law in matters constitutional. In the eyes of many people, these two positions fit comfortably together. Textualism requires a judge to focus his interpretive energies on a particular piece of constitutional text, binding on him and his society on account of the circumstances of its framing and ratification in that society. In cases involving constitutional or fundamental rights, will foreign judges have their attention riveted on the same text as the one on which an American textualist does? Surely not. In the unlikely event that a foreign judge is a textualist, he or she will be preoccupied with the meaning of some text laid down by Canadian or English or European framers, not on the one laid down by American Framers. So it seems inevitable that an American judge will be distracted from his textualism by paying attention to foreign decisions. At best, he will be distracted from the textualism appropriate to him as an American judge dealing with American text by the textualism of a Canadian or English or European judge dealing with Canadian or English or European text. At worst, he will be distracted as well by the antics of foreign judges that have no textualist aspect to them at all. He will be distracted by their “living tree” approach to the Canadian Charter or the ECHR, an approach that they may have learned from our nontextualist judges but that has flourished abroad (“metastasized” is Scalia’s phrase) and now comes back to distort our constitutional jurisprudence still further.28 Paying attention to foreign law constitutes a double distraction from a textualist point of view: an American judge should have

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nothing at all to do with the interpretation of foreign constitutions or bills of rights; and even if he did, he should be urging his foreign counterparts to take a textualist approach to those documents, an approach which will no doubt cure them of the impudence that motivates their preaching to him about how his texts should be understood. Nevertheless, I believe textualism is consistent with support for the citation of foreign law.29 I am tempted to say even that in certain circumstances textualism actually requires a court to consider foreign law. It is a position that sounds paradoxical; but I hope that in the course of defending it I will be able to cast some light on all the positions in play in these controversies, particularly on the distinction between textualism and originalism. I hope I can make this case without being patronizing or dismissive of the textualism of those who disagree with me.30 Before I go any further, there is a preliminary point to address. The citation of foreign law is a controversial instance of a more general practice: judges citing other judges. Should textualists have a problem with this more general practice? I don’t think so. As I understand textualism, it is a view about what judges should be preoccupied with: they should be preoccupied with the natural-language meaning of the texts that have been authoritatively laid down for them to administer. Whether they should be preoccupied with this solipsistically or in teams; whether they should do it in a Protestant spirit eschewing all reference to what other judges have made of the same or a similar assignment in earlier cases; or whether they should take notice of how earlier generations of textualists have approached their task—all these considerations, I think, are left open in textualist jurisprudence.31 But it is perfectly conceivable that a textualist would say the following: an individual judge can learn a great deal from what has been said in other cases about the proper understanding of a given piece of statutory or constitutional text; moreover the public may be thought to have an interest, one based upon certainty or fairness, in statutory or constitutional interpretation being constant from case to case. This might be so as between two competing textualist interpretations: judge B might feel under some constraint to accept judge A’s textualist interpretation of, say, the Eighth Amendment even though, if it were just up to him, judge B would think that there is a better textualist interpretation available. Since textualists can disagree, even when they are both working in good faith on the same piece of text, it is perfectly reasonable for the legal system to ordain some principle of constancy among their decisions.32 So far in dealing with this preliminary issue, I have assumed that the judges we are speaking of belong to the same legal system. But once we

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establish that in principle there is nothing inconsistent with textualism in a textualist judge’s deference to other judges, especially if the other judges are engaged in the same sort of textualist inquiry he is, then we can raise the more specific question of whether there is any particular reason for a textualist to confine his deference to judges who belong to the same jurisdiction. My argument is going to proceed from the proposition that judges in different countries are sometimes required to interpret what is, in effect, the same piece of text—text that has been lifted from one constitutional context and put in another, or from a human rights treaty to a constitutional document, or from a treaty to a statute. When this is so, judges may be required to treat the judges in some other jurisdiction as being engaged in the very same textualist enterprise they are engaged in. Not just the same type of exercise, but a textualist exercise focused on the same piece of text. Sometimes such intertextuality is clear from the statute or constitution that the courts are dealing with. The avowed purpose of the U.K.’s Human Rights Act is, as its preamble says, “to give further effect” to rights and freedoms guaranteed under the ECHR, and the provisions of the statute (sections 3, 4, and 6) require English courts to pay attention to whether legislative decisions are in accordance with the rights and freedoms set out in the ECHR, to issue a Declaration of Incompatibility if they are not, and to hold public authorities to compliance with the convention rights. The text of this statute plainly requires English judges to pay attention to the text of the ECHR, which is not in itself an English enactment. In addition, section 2 of the Human Rights Act says, “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any . . . judgment, decision, declaration or advisory opinion of the European Court of Human Rights.” Faced with this mandate, an English textualist has no choice but to pay attention to what foreign judges (hopefully, foreign textualist judges) have made of a foreign text. Sometimes the intertextuality is implicit rather than explicit. Here is a half-imaginary example.33 Countries A, B, and C enter into a treaty to facilitate international air travel—something like the Chicago Convention on International Civil Aviation of 1947. The treaty lays down certain standards for flight paths, landing rights, aircraft registration marks, and certificates of airworthiness. And it requires the signatory countries to enact national legislation to cover these matters. The point of such legislation is to make duplicate provision at a statutory level corresponding to the provision made in the treaty:, to borrow Gerald Neuman’s term again, it is a matter of “dual positivization,” and it is very common in the interplay between national and

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international law.34 The countries are under an obligation to incorporate into their national legislation the exact standards laid down in the treaty and to notify the treaty authority if they are unable to do so. What is intended here is not just that the civil aviation statute enacted by country A should mirror the terms of the treaty, but also that, in doing so, it should mirror the terms of the civil aviation statutes enacted by countries B and C. Uniformity between countries is the aim. (One does not want much of a “margin of appreciation” when it comes to flight paths.) In a case like this, even if the statute does not explicitly direct us to the treaty or to the corresponding statutes of other countries and to how they are being interpreted, courts plainly are supposed to consider these things; anything else would defeat the purpose of both the statutory regime and the treaty.35 Justice Scalia acknowledges something like this when he says that it is legitimate to use foreign law in interpreting a treaty obligation: In a recent case I dissented from the Court, including most of my brethren who like to use foreign law, because this treaty had been interpreted a certain way by several foreign courts of countries that were signatories, and that way was reasonable—although not necessarily the interpretation I would have taken as an original matter. But I thought that the object of a treaty being to come up with a text that is the same for all the countries, we should defer to the views of other signatories, much as we defer to the views of agencies—that is to say defer if it’s within the ballpark, if it’s a reasonable interpretation, though not necessarily the very best.36

Scalia is referring to his dissent in Olympic Airways v. Husain (2004), in which he said the following, also in regard to an aviation treaty, about his colleagues’ refusal to consult foreign law: Today’s decision stands out for its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us. This sudden insularity is striking, since the Court in recent years has canvassed the prevailing law in other nations (at least Western European nations) to determine the meaning of an American Constitution that those nations had no part in framing and that those nations’ courts have no role in enforcing. . . . One would have thought that foreign courts’ interpretations of a treaty that their governments adopted jointly with ours, and that they have an actual role in applying, would be (to put it mildly) all the more relevant.37

A third type of intertextuality occurs when language happens to be copied from one constitution or bill of rights to another. A well-known example I have already mentioned is the English Bill of Rights of December 16, 1689, which provided as follows: “The . . . lords spiritual and temporal,

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and commons . . . do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare . . . [t]hat excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.” The language I have emphasized was used again, word for word, in the Eighth Amendment to the U.S. Constitution, ratified just over a hundred years later. It was also used in the constitutions of many American states, for instance, in article 1 (section 13) of the Constitution of Texas. Almost two hundred years after the ratification of the Eighth Amendment and three hundred years after the English Bill of Rights, the Canadians enacted their Charter of Rights and Freedoms. Article 12 of that charter uses something quite like the language emphasized above: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” My focus here is on cases where the language used in one constitution or bill of rights is the same as the language used in another. Slight differences of wording may or may not matter. In Texas, the prohibition is on “cruel or unusual” punishment, whereas in the U.S. Bill of Rights it is “cruel and unusual.” Some scholars have thought that made a difference.38 But even that is not a reason for courts interpreting the one provision to ignore the way in which the other provision has been interpreted; one can learn sometimes from difference as well as from uniformity. In other cases, we might say, “There is a slight difference of wording here, but still the best way of understanding two pieces of similar, though not identical, text is that they are different attempts, within the legal or linguistic traditions of two communities, to capture the same principle or standard.” As I said in chapter 3, much of what we draw from foreign law takes the form of principles, and principles do not have a canonical formulation. I am not even convinced that textualists should be stopped in their tracks by the use of different languages. The French version of article 12 of the Canadian Charter reads, Chacun a droit à la protection contre tous traitements ou peines cruels et inusités. There are no Canadian textualists in my experience, but if there were, a textualist judge in Quebec who was riveting his attention on this piece of French text might well think of himself as being engaged in exactly the same textual inquiry as an Anglophone judge in Alberta considering the English language version of article 12. Natural languages are like that: increasingly the translation conventions between languages, in which translation back and forth is very frequent, come to seem part of the respective languages themselves, and the differences begin to look as irrelevant as differences of font. A similar case is the use throughout the world of the phrase “inhuman and degrading” (or, in article 5 of the Brazilian Constitution, desumano ou

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degradante) to identify a class of treatment prohibited by human rights law. The phrase is used in the European Convention on Human Rights (article 3), the U.K.’s Human Rights Act, the South African Constitution (article 12), and so on. Or we could consider the common use in modern bills of rights of the language for permissible limitations of rights (the language I discussed in chapter 5). Section 5 of the NZBORA ordains that “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Very similar language is used in bills of rights the world over, including article 1 of the Canadian Charter of Rights and Freedoms and section 36 of the South African Constitution. In both of these examples the language in national bills of rights corresponds to the language of international instruments. The ICCPR prohibits “inhuman or degrading treatment or punishment” in article 7, and the language of “restrictions . . . which are prescribed by law and which are necessary in a democratic society” is used in article 22. Can we therefore assimilate these cases to the example of dual positivization mentioned above, the example of statutes that are enacted to incorporate treaties into national law? Arguably many national bills of rights stand in roughly the same relation to, say, the ICCPR as I imagined the civil aviation statutes of countries A, B, and C standing in relation to an international civil aviation treaty. This is evidently true of constitutions like South Africa’s and of bills of rights such as the NZBORA. Among the many excellent reasons for adopting these instruments was a desire to be in compliance with article 2(2) of the ICCPR which requires that “each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.” This aspect of the recent rights legislation or the recently adopted constitution of these countries provides good reason for paying attention both to international law and to the similar national provisions of other countries—reasons entirely analogous to those that would obtain in my civil aviation example. Or almost entirely analogous. In the civil aviation example, we are imagining that the dominant purpose of the national legislation was to mirror the international treaty and the civil aviation arrangements of other countries. No doubt each country would need a civil aviation regime governing airworthiness, flight paths, and so on even if there wasn’t an international treaty regime; but the orientation toward the existing treaty

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regime seems overwhelming in a way that perhaps exceeds the orientation to international human rights conventions in the adoption of national constitutions and bills of rights. In the latter case, the desire to mirror the international human rights consensus and to be in compliance with article 2(2) of the ICCPR is one important reason. But it stands alongside others— having to do with each country’s particular traditions of freedom and respect for rights and each country’s particular history and problems—that are not oriented internationally or transnationally in the same way. But this point does not eliminate the argument for the citation of foreign law. It means rather that the foreign law approach will seldom be dispositive, seldom be more than one persuasive factor among others. That should be accepted; defenders of the citation of foreign law do not usually maintain that consistency with foreign law should be the be-all and end-all. The argument just considered won’t quite work for the Eighth Amendment. The United States did not adopt that amendment in order to satisfy its obligations under ICCPR. It adopted it almost two hundred years before the ICCPR was dreamed up. Indeed, the U.S. Bill of Rights may be regarded as one of the inspirations not only of the ICCPR but also of many of the national bills of rights I have been talking about (rather than vice versa). No doubt this heightens the qualifications acknowledged in the previous paragraph. But it by no means implies that we have to abandon the whole frame of analysis. For it is not clear why a difference in the historical order should be crucial. In the civil aviation example, I imagined that the treaty came first and the national statutes followed. But suppose one of the national statutes, say, country A’s statute, predated and was in part a model for the treaty, and then some of the other national statutes were attempts to mirror the treaty. Then, even though we could not say that the purpose of the enactment of A’s statute was to standardize treaty provisions and harmonize with B and C, it may still be appropriate to regard the text of A’s statute in this light: its provisions remain as they are, without change or alteration, because they mirror the subsequent treaty and the statutes adopted in other countries under the treaty. This still seems to me to be an important fact about the text, one that it would be inappropriate for a textualist to ignore. In any case, a jurist who is preoccupied simply with the meaning of a given text may have reason to pay attention to what others have made of that text—that same form of words—in a different constitutional system, whether the use of the same words is intended to fulfill some overarching joint purpose or not. If perchance all the English dictionaries in America were burned, American textualists might have to pay attention to what

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Canadian judges have found out about the meaning of “cruel” and “unusual” from dictionaries in Canada. To refuse to do that, on the grounds that these are foreign judges would be ridiculous, given that they are embarking on the same dictionary analysis as our judges ought to be embarking on. It is a silly hypothetical, but I use it to open our minds to other, more serious cases in which one judge’s reflection on the meaning of certain words in one country might actually help another judge’s reflection on the same form of words in a different country. Certainly that is how the Canadians see it with “cruel and unusual.” In the leading Canadian case of R. v. Smith (1987), Justice William McIntyre observed that “American jurisprudence upon the question of cruel and unusual punishment is more extensive than Canadian and it provides many statements of general principle which merit consideration in Canada.”39 It seems to me quite appropriate for Canadian judges to pay attention to some of what Justice Scalia says in his discussion of “cruel.” He says that the use of this word should not be regarded as a flexible standard adjustable to the sensibilities of each age: “otherwise, it would be no protection against the moral perceptions of a future more brutal generation.”40 If this is a sensible insight for Americans, it is surely one for Canadians; and if Canadians have somehow missed it, it would be appropriate for them to glean this insight from Justice Scalia’s jurisprudence notwithstanding its foreignness. There are many differences between the Canadian Charter and the U.S. Bill of Rights that a textualist would want to take notice of,41 not least the fact that the U.S. Bill of Rights appears in some of its other provisions to countenance the taking of life by the state as a punishment, whereas the Canadian Charter does not. (I shall say more about differences in meaning and context in a moment.) But these will be retail reasons for blocking some particular extrapolation from foreign law, not wholesale reasons for condemning the practice out of hand. Or we can consider the way countries might learn from one another in their textualist approaches to the phrase “inhuman and degrading,” as used to identify a class of treatment or punishment prohibited in Bills of Rights. The phrase is not an easy one to interpret and apply, and courts around the world ought to be willing to draw insights from what other courts have made of this text. So, for example, the South African Constitutional Court has held that the phrase “inhuman and degrading” (in their case, “cruel, inhuman and degrading”) should be regarded as two (three) separate standards rather than as a single standard (as though it were a portmanteau term: “inhuman-and-degrading”), which is a position that some human rights bodies have been tempted by.42 The New Zealand Supreme Court has

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addressed the difference in word meaning between “inhuman” and “inhumane,” which is a common source of confusion in the United States.43 These are textualist reflections, and they are obviously valuable wherever these words are being interpreted. I do not mean they should dictate textualist conclusions to us. On some of these matters there is disagreement among courts. But even when there is disagreement we may profit from considering the controversy, just as we profit from considering, for example, the different ways in which constitutional provisions are interpreted in the United States by different Circuit Courts of Appeals. Textualists are interested in language; they believe that judges in each jurisdiction should focus on the words of the constitution or the bill of rights that has been entrusted to them. I have argued that the texts entrusted to judges in one country may often be exactly the same as those entrusted to judges in another country, and textualists ought to take notice of what those foreign judges are doing. But here is a possible difficulty. Textualism is not just a theory about words; it is also a theory about process. We are to pay attention to particular texts not because we like them or on account of their literary, decorative, or rhetorical properties, but because they are the end product of an authoritative political process. The text has been given authority as a result of that process; that is why we are to defer to it. In the case of a statutory text, the process is the laborious one of bicameral enactment, with all its stages, safeguards, and opportunities for input and voting among elected legislators as well as its presentment to the president for signature, and the overriding of his veto if he refuses to sign. In the case of constitutional text in the United States, the process is that of ratification by the states or the article 5 amendment process. We respect the text because we respect the process that produced it. We disdain extraneous materials because they have not emerged from the process or—if, like legislative history, they are part of the process—they have not emerged from it in the right way.44 It may be thought that the process-text connection provides a strong argument against the use of foreign law, even when the foreign law is focused on what is linguistically the same text as our own courts are focused on. For what we should be interested in is not linguistically identical texts but politically or procedurally identical texts. So, we might say, even though the Canadian Charter prohibits cruel and unusual punishment just as our Eighth Amendment does, it is a distinct text inasmuch as its authority stems from a quite different political process, not to mention a political process that took place in and around 1982 as opposed to 1791. But it is not clear that this position can be sustained by anyone who denies that the word “cruel”

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has changed its meaning between 1791 and 1982. If the word has not changed its meaning, then it is unclear why a textualist judge in the United States should not pay attention to the insights of a textualist judge in Canada so far as this particular piece of text is concerned. The respective political processes explain why each judge is fixated on this piece of text; but since the pieces of text on which they are explicably fixated are identical, one would think they might have something to learn from one another. Conceivably, one might say that a given text considered as part of a constitution—as the upshot of a constitution-making or constitutionamending process—differs from the linguistically identical text considered as part of a statute.45 Maybe constitutional texts that are very hard to amend need to be read more cautiously and conservatively than texts that are easy to amend. Maybe we should be wary of drawing textual conclusions for a jurisdiction that has strong judicial review from the work of judges in a system that has weak judicial review, even when they are focusing on the same text. I am willing to concede all that, though I’d like to see it spelled out. I doubt, though, that this shows that a textualist should have nothing to do with foreign consideration of linguistically identical text. What it does is place limits on or add caveats to what can be learned from the foreign textualists. All of this discussion presupposes that the words do not change their meaning when they are transferred, for example, from London in 1689 to Philadelphia in 1791 or from Philadelphia to Texas in 1848 and to Ottawa in 1980. That is a long voyage for a word to embark on without losing its meaning. And it is certainly true that words change their meanings over time. The collect prescribed by the Book of Common Prayer for use throughout Lent—“Prevent us, O Lord, in all our doings. . . .”—uses a sense of “prevent” that was current in 1549 but is now archaic: “Go before us with spiritual guidance and help” as opposed to “Find out what we are doing and stop it.” We would need to know which of these meanings was in play if we were interpreting an imaginary constitutional provision that permitted the president “to make judicial appointments, prevented by the Senate.” And to know that, we would need to know how the word was understood by those who framed and ratified the provision. But despite the great lapse in time between the drafting of the U.S. Constitution and its present application, very few words in it have changed their meaning in this way. One example, perhaps, is “militia” in the Second Amendment, which to us conveys the impression of a tight, elite group of militarists like Hezbollah or Aryan Nation, but which to the founding generation meant something like “the whole citizenry under arms.”46 But that is an exception. Most of the

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language in the Constitution means now what it used to mean. And the language that the Constitution shares with other constitutions around the world does not seem to have changed its meaning in the course of its export. It is sometimes said that Britain and the United States are two countries divided by a common language. But it is hard to think of any term or phrase in the text of, say, the U.S. Constitution or in the U.K.’s Human Rights Act which would have a substantially different meaning on the other side of the Atlantic. Sometimes different doctrines have accreted around the same term, as, for example, in the case of “due process,” but that it not the same as the words themselves having different meanings. Textualists observe that legal systems place great faith in natural language.47 They use it to coordinate understandings in otherwise diverse legislatures, and they use it to regulate and to coordinate affairs and interactions among diverse communities in a given country.48 They could not do this if it were thought that a piece of natural language text acquired a new and distinct meaning on every occasion of its use or apprehension. Natural language is certainly not perfect for the purposes of the law, but whatever usefulness it has rests largely on its constancy from context to context. For example, the language that prohibits excessive bail and excessive fines and cruel and unusual punishments in the U.S. Constitution seems to mean more or less the same as that used to express similar prohibitions in the English Bill of Rights in 1689. “Excessive,” applied to fines and bail, is still a word of negative evaluation as to quantity; cruel” continues to mean what it meant when it appeared in the English language in Chaucer’s time: “causing or characterized by great suffering”; and “unusual” is a synonym of “uncommon” and “exceptional” in common usage since 1630.49 Some things that are unusual now, like riding to work on a horse, were not unusual in the seventeenth and eighteenth centuries. But that is not a change in the meaning of the term; rather, the constant meaning of “unusual” makes reference to a certain relativity. Likewise, “cruel” means the same thing now as it did in 1689 and 1791, even though, as the framers of the various texts knew perfectly well, people are disposed to apply the word in good faith to different practices from one age to another and to disagree within a given age about the practices to which it applies. Yet this is not a matter of difference of meaning: it is not as though “cruel” used to mean “harsh” but now means “indelicate.” We judge certain things wrong which our ancestors did not, but “wrong” still means the same. And similarly we judge methods of execution that cause considerable pain as cruel, whereas our ancestors did not; but “cruel” retains its meaning. Meaning is not the same as application; meaning is the linguistic resource that directs

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and is supposed to govern application;50 and meaning, not application (not even original application), is what the textualist, at his most consistent, wants us to focus on. Understanding the meaning of “cruel,” even the meaning which it originally had, is not the same as understanding how it was originally applied. I emphasize this distinction because it seems to me that there is bound to be a difference between a textualist approach to the use of common language in two different constitutional settings and an originalist approach to that phenomenon. From a textualist point of view, the citation of foreign law looks more suspect the more one’s textualism takes on the aspect of original intent. An originalist approaches the meaning of constitutional language by asking what the framers of that language had in mind so far as its likely application was concerned. If James Madison, say, was inclined to think that executions would not be prohibited under the Bill of Rights he had created, then, according to this sort of originalism, the meaning of “cruel” in that Bill of Rights cannot possibly be such as to cover the death penalty. And if someone else, Thomas Jefferson, say, subsequently comes to the conclusion that the death penalty is cruel, it must follow, on the originalist philosophy, that he is using “cruel” in a different way. According to this view, the language of “cruel” is likely to mean something different in the English Bill of Rights and the American Bill of Rights and the Canadian Charter because in each case different people have different views about which practices are cruel and different expectations about how the term will be applied by their contemporaries. This is not the place to dwell on how stupid such a position is. Suffice to say that it would follow from the originalist premise that if Madison were debating Jefferson about the death penalty, with Jefferson saying it is cruel and Madison saying it is not cruel, the two would have to be construed as talking past each other, using “cruel” with different meanings, as though they were arguing about whether something was a bank, with Madison meaning riverbank and Jefferson meaning financial institution. The point I want to drive home is that originalist methodologies of this kind are not textualist methodologies. We can certainly expect opposition to the use of foreign law from an originalist position or from a textualism which, like that of Justice Scalia, lapses into an appeal to the historic intent of the Framers whenever that is politically convenient. But textualism as such can easily accommodate the idea of attending to and making use of others’ textual insights. Legal systems copy each other, and they learn from each other. Textualists are in a position to relate the one phenomenon to the other and justify the learning by their attention to the significance of the copying.

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5. Sovereignty The last objection to the invocation of foreign law that I will consider in this chapter is an objection based on the importance of American sovereignty. I distinguish now between sovereignty and popular sovereignty, in the sense in which the latter term is sometimes confused with democracy.51 And I also distinguish between internal sovereignty and external sovereignty. I am not interested here in what the British might think of as the sovereignty of Parliament, or the concerns we might have about the role of courts (supremacy, equality, or subordination) in the separation of powers. I want to confront the suggestion that the sovereignty of the United States as a whole, as an independent nation, is being undermined by references to foreign law in our courts. The sovereignty objection loomed large in the political reaction to the decisions in Lawrence v. Texas and Roper v. Simmons. In the Senate, John Cornyn rose to express concern that “step by step, with every case, the American people may be losing their ability to determine what their criminal laws shall be—losing control to the control of foreign courts and foreign governments.”52 And in the House of Representatives a resolution was introduced to say that “inappropriate judicial reliance on foreign judgments, laws, or pronouncements threatens the sovereignty of the United States.”53 Sovereignty, said one scholar, dictates that a nation creates its own laws, not outsiders: “Internalization of governance and control is critical to the concept that a Nation . . . has the prerogative to, govern itself. When authorities begin to allow the piercing of the veil of sovereignty—allowing outside sources to pierce the boundaries of domestic law—there is a surrender of the legislative autonomy a Nation holds in a Westphalian system.” He concluded: “A Nation’s right to exclude, the right to include, and the methods for determining lie at the heart of sovereign authority.”54 I do not want to just “deny this with a shrug,” but when you think about it, it is a pretty silly objection.55 I will not rely on the doubts that many express about the concept of sovereignty in the modern world, although this played a slight role in my discussion of human rights and humanitarian intervention (see chapter 5).56 I fully acknowledge the importance of independent nations not being dictated to by foreign institutions. Still, it is preposterous to suggest that judges who refer to foreign law are undermining the sovereignty of the United States. For one thing, judges in the United States are not just submitting to decisions of courts elsewhere as to a foreign overlord; they are consulting them because they believe they are helpful, and they give them some weight, though certainly nothing

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approaching binding weight, in their decisions.57 For another thing, it is U.S. judges who are doing this in the course of American judicial reasoning. As Mark Tushnet points out, the use of the language of sovereignty here “obscures the fact that it is always a domestic decision-maker who concludes that a non-U.S. rule should be a rule of decision within the United States.”58 The decisions in Roper and in Lawrence never left the hands of U.S. authorities, and they were largely decided on the basis of endogenous considerations. Sometimes when people say “sovereignty,” they seem to mean self-sufficiency or autarchy. The idea is that a sovereign country should not have to look beyond its boundaries for anything. But this is as absurd in jurisprudence as it is in world trade. Countries consider and take notice of each others’ ideas all the time. But just as no foreign exporter forces us to take its goods, so no foreign legal system forces us to consider its precedents. In both cases, we look abroad because we judge it appropriate to do so. And in both cases, as we have seen, the United States is an exporter as well as an importer. Jed Rubenfeld argues that trade in legal ideas is all very well, but not when it comes to constitutional ideas. A constitution, he says, is supposed to reflect a country’s own fundamental legal and political commitments, “not a set of commitments that all civilized nations must share.” It is “the selfgivenness of the Constitution, not its universality, that gives it authority as law.”59 The platitudinous aspect of these remarks can be accepted. But not the implication that Rubenfeld wants to draw from it. Countries learn from each other’s constitutional traditions all the time, particularly when they are drafting their constitution. The United States did when the Framers looked to Britain, for example, for guidance on the separation of powers and on the impeachment process:60 If we take the eighty-five Federalist Papers as a guide to what the founders considered relevant to understanding their new Constitution, we find references to England and to Britain, to be sure, but also to Ireland, Scotland, Wales, to Europe in general, France, Germany, Swabia, Bavaria, Westphalia, Hanover, Saxony, Prussia, Austria, Sweden, Poland, Holland, the Netherlands, the Dutch, Zealand, Utrecht, Flanders, the Belgic confederacy, the League of Cambray, Switzerland, Berne, Luzerne, Italy, Savoy, Venice, Greece, Portugal, Spain, Aragon, and twenty-two other place names from the classical world.61

And other countries have followed American constitutional ideas on a host of issues, including the power of judicial review itself. Our Constitution has had an enormous influence on others. Rubenfeld may try to say, with Justice Scalia, that these influences are relevant only to the task of designing

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a constitution, not to the task of interpreting one.62 But that is an evasion here because what we are evaluating is Rubenfeld’s absurd claim that a constitution is supposed to reflect a country’s own ideas, not those of anyone else. The sovereignty objection is easily rebuttable when it is stated in general terms: other countries do not have this preoccupation with legal insularity, why should we?63 But maybe there is something special about American sovereignty: the city on the hill, and so on.64 When Americans exclaim indignantly, “This is our Constitution, we made it for ourselves; its interpretation is a matter for us alone, it has nothing to do with anyone else,” and so on, they may mean to point proudly to a unique, original experiment happening here which is not happening with other constitutions and which gives our sovereignty a special whiff of defiant but defensible parochialism.65 Other countries may be inclusive, even promiscuous, in their constitution mongering, and Americans sometimes are too. But there is always this unique, special pride ready to break out at a moment’s notice, ready to denounce jurists whose “elaborate show of false humility,” or, in other words, a decent respect for the opinions of humankind, ends up extolling Europeans and denigrating Americans.66 Maybe it is this prickliness which is really fueling the debate, and, if so, there is little to be said. You can’t argue with a feeling.

CHAPTER SEVEN

Practical Difficulties

1. Picking Cherries Of all the objections I hear raised against the use of foreign law, the most common is that it involves a form of cherry picking, that is, picking one or two laws or precedents from here and there in the world simply because they happen to support the position one is arguing for in the United States or wherever the controversy about the use of foreign law arises. The objection is that the use of foreign law is undisciplined by any jurisprudence more scrupulous than that. At his confirmation hearing after being nominated for Chief Justice, Judge John Roberts was called on by Sen. Jon Kyl to denounce the use of foreign law. He responded as follows: “Foreign law. You can find anything you want. If you don’t find it in the decisions of France or Italy, it’s in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends.”1 The phrase “picking out friends in a crowd” has a remarkable history. It seems to have originated with George Santayana, in talking about the work of the historian.2 In legal circles it is usually attributed to Judge Harold Leventhal in regard to appeals to legislative intent. As reported by Leventhal’s colleague Patricia Wald, it was a remark he made in conversation.3 But it has been adopted, as it were, by the Supreme Court,4 and it is used by Justice Scalia in his frequent denunciations of the resort to legislative history, which he says provides something for everybody because it can be “relied upon or dismissed with equal plausibility” to support decisions based upon the justices’ own policy preferences.5 Ironically, it has been used also to condemn certain forms of textualism6 and also to condemn the sort of “law office history” that is characteristically involved in constitutional 171

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originalism.7 Says one scholar, “A judicial decision premised on friends-inthe-crowd historical research is no more helpful in reading the Constitution than it is in reading a statute.”8 Another has observed, “The likelihood that busy judges will master the vast amount of historical material is not great. Given this large, complex historical record, a substantial risk exists that judges—or more realistically, their law clerks—simply will look for friendly faces in the crowd, picking out the historical data that most clearly support their position.”9 Once one starts following this thread, the allegations of cherry picking and friends-in-the-crowd methodology pop up everywhere. It is used in connection with the citation of precedents generally, not just foreign precedents.10 It is brought against the Supreme Court’s practice of choosing for itself the cases it will review.11 It is used against the choice of evidence that is invoked to support death penalty verdicts12 and against courts’ use of scientific evidence generally.13 In Roper v. Simmons, quite apart from the reference to foreign law, the allegation was used against the way the Court established a national consensus in the United States against the juvenile death penalty: “The majority showed that evidence of a national consensus could be satisfied simply by cherry-picking the favorable indicia, essentially making the inquiry a pretext for the subjective moral judgment of the Justices.”14 It is used in hundreds of other contexts as well.15 As Judge Nancy Gertner has observed, “ ‘Cherry picking,’ so called, is a problem throughout legal research—whether one is evaluating legislative history, and ‘cherry picking’ the language that supports the interpretation you favor, or choosing legal precedent from the vast body of state and federal decisions. It applies even in civil code countries—choosing which rule to apply in an extensive and complex code, or which exception to invoke.”16 Still, hackneyed or not, cliché or not, the cherry-picking objection does have to be addressed in this debate about the use of foreign law. What exactly is cherry picking supposed to involve? It has been defined as “searching for an authority that supports [one’s] own view while ignoring contrary opinions.”17 It is often connected with an allegation of judicial activism, with opportunistic judges accused of citing only those cases which appear to lend support to their political agendas. In his dissent in Lawrence v. Texas, for example, Justice Scalia observed that the Court’s discussion of foreign law involves “ignoring . . . the many countries that have retained criminal prohibitions on sodomy.”18 His implication was that, in order to bolster “the so-called homosexual agenda,” the Court had gone out into the world in search of a few citations to foreign law from legal systems that happened to have decriminalized homosexual activity, trying to create the

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impression that Texas was an outlier on this matter in the rest of the world. In fact, however, Justice Kennedy used foreign law in Lawrence not so much to advance his agenda as to refute the sweeping claim in Chief Justice Warren Burger’s concurrence in Bowers v. Hardwick (1986) that Western civilization had consistently condemned same-sex intimacy.19 That’s the thing about generalizations: they can be refuted by a handful of instances, and there can be no objection to cherry picking the cases that are used to refute them.20 However, that is not always the logic of what is going on. A common complaint is that judges cherry pick the countries they cite and get away with it because so few people know the foreign laws in detail.21 Some of these concerns are just silly: one scholar complains that a judge “could potentially use law from Zimbabwe, for example, to prove whatever point she wants to make without a required reference to any other foreign authorities,”22 as though there would be no brief from counsel for the other side or no opinion expressed by a fellow judge (like Justice Thomas in his opposition to Justice Breyer in Knight v. Florida)23 to impugn such a haphazard or unreliable citation. Roberts made a similar criticism of the use of foreign law at his confirmation hearings. The citation of foreign precedents, he said, “expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent.” It is quite different in this regard from the citation of domestic precedent, which, he said, can confine and shape the discretion of the judges.24 Actually it is not clear what this distinction is based on since, in other contexts, judges are accused of cherry picking domestic precedents as well. And a domestic precedent can be used as much to advance an activist agenda as to confine it. Presumably Roberts’s point is that when domestic precedents are introduced into legal argument, judges and opposing counsel are familiar (or can easily become so) with the material cited and familiar also with the array of precedents that might have been tendentiously omitted in counsels’ arguments or a colleague’s opinion. That is what confines judges’ agendas, not the restriction to domestic precedents as such. The citation of foreign law can look random and haphazard. But it is early days for this practice in the United States. If the normative arguments I made about learning and harmonization are accepted (see chapters 4 and 5), then it is important for us to persevere in the practice until we get better at it. I am reminded of a passage in Felix Cohen’s great essay “Transcendental Knowledge and the Functionalist Approach,” published in 1935. Arguing that legal reasoning cannot any longer be regarded as just

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the autonomous study of doctrine but must expand to include psychology, economics, and political theory, Cohen observed, Courses in our more progressive law schools are beginning to treat, most gingerly, of the psychological doctrines embedded in our rules of evidence, the sociological theories assumed in our criminal law, the economic assumptions embalmed in our doctrines of constitutional law, and the psychological, sociological, and economic facts which give force and significance to rules and decisions in these and other fields of law. The first steps taken are clumsy and evoke smiles of sympathy or roars of laughter from critics of diverse temperaments. The will to walk persists.25

Something similar must be said about the supposed clumsiness of the cherry picking that the citation of foreign law currently involves. Suppose we acknowledge that, as things stand, there is something haphazard about the citation of foreign law. Still, if I am right in my normative arguments, these citations represent the first hesitant steps of a new way of doing law, a new addition to the repertoire. As in the case of social science, the clumsiness of the first steps must be grounds for straining to improve the practice, not for laughing it out of court. Some judges who support the use of foreign law take a more brazen attitude to the cherry-picking problem than this. Michael Kirby, formerly of the High Court of Australia, has protested against the criticism in the following terms: “If a judge is going out there to be dishonest, if you’re just going to pick out the ideas and reasoning that you like, if you’re going to shove them in your opinions, and give what you wrote decoration, well, that’s dishonest. If judges want to be dishonest, then they’ll be dishonest.”26 But he didn’t think that dishonesty was so endemic on the bench as to justify abandoning the practice. Other judges deny the derogatory overtones of cherry picking. In a recent interview Deputy Chief Justice Moseneke of South Africa admitted, “Yes, we cherry pick all the time when we use authorities, foreign or domestic. . . . The very process of adjudication implies a selection, and a reasoned and rational process to search for the truth by weeding out what’s irrelevant and finding what is cohesive and that best answers . . . the problem before us.”27 One American scholar has argued, “There is nothing wrong with lawyers and judges using skills and discernment honed by experience to choose the foreign laws most likely to prove useful in the interpretive enterprise.”28 This is true especially when one legal system is seeking to learn from another. That one should carefully pick the source of one’s insights seems obvious, unless one is proposing to learn simply from the fact of consensus. Such picking and choosing may mean that one remains ignorant of other insights that might have been available if

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the choice had been made differently, but that does not necessarily detract from the learning that has taken place. The complaints about cherry picking sprang up in the wake of the decision in Roper v. Simmons. How exactly was the cherry-picking objection to the use of foreign law supposed to work in that case? The objection can hardly be that Justice Kennedy looked out over the legal systems of the world and picked out only those which had repudiated the juvenile death penalty. With the exception of the United States they had all repudiated the juvenile death penalty: no cherry picking there. Maybe the problem is that the Court took at face value the official declarations of some country that its law does not include the juvenile death penalty, while ignoring other evidence about, say, extrajudicial executions in that country.29 Admittedly, Roper may be an unusual case: a genuine 100 percent consensus among the nations of the world (or 100 percent minus the United States). According Alberto Gonzales, the attorney general in the Bush administration, “There are 191 members of the United Nations. There are even more legal jurisdictions. . . . [I]t cannot be expected that the laws of all sovereign nations . . . will agree on a disputed point of constitutional law. The decisionmaker will then be left somehow to choose among them.”30 (I mentioned the possibility of a less-than-100-percent consensus in chapter 3, and I will say more about it at the start of chapter 8. And the basis on which jurists select which nations to include in such a consensus is discussed in chapter 8. I hope I can show there that there is something principled to be said about such choices and that it is not just a matter of a liberal jurist smirking behind his hand as he picks out the opinions of his ideological friends.) To anticipate: everything depends on the exact argument being developed for the use of foreign law. We can learn from foreign decisions one by one or in clusters or in something approaching a world consensus. In the context of the learning argument, there is nothing magic about 100 percent, except that anything less may indicate there is possibly something to be learned on the other side. On the consistency approach, there can be reason for pursuing harmonization on a regional or some other lessthan-universal basis. And our experience of working with precedent in a domestic context shows that 100 percent consistency with past decisions is not always necessary. Inevitably there are outliers, and inevitably an integrated body of doctrine is a work in progress. The judgments this requires are no doubt delicate, but that does not mean they are necessarily begging the question with respect to the case at issue. One other aspect of the cherry-picking complaint needs discussion. Although there can be little to object to in Roper v. Simmons so far as the

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content of the alleged global consensus about the juvenile death penalty is concerned, there might be a sort of meta-cherry-picking worry about the court’s choice of issues on which it looks to foreign law. There may not be any cherry picking in observing a consensus on the juvenile death penalty, but still, as Justice Scalia observes, the court does not appear to believe in the use of this methodology for other cases. It certainly does not look for foreign guidance on issues on which we stand in our constitutional law as liberal outliers in the world.31 Scalia mentioned the exclusionary rule, principles of reproductive choice, and the strong separation of church and state, including the prohibition on school prayer—all areas where, he thinks, the Court would not entertain an argument to the effect that awareness of our outlier status on these issues should lead us to a more moderate position. “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making,” he said, “but sophistry.”32 The point is a fair one as far as it goes. But it misconceives how things work in an adversarial system of justice. The proper response to Scalia’s accusation of inconsistency is not for Justice Kennedy to denounce American-style abortion on demand or the exclusionary rule in the course of his opinion in Roper, on pain of otherwise having to give up the reference to foreign law so far as the juvenile death penalty is concerned. The proper response is for those who seek to overturn Roe v. Wade or Mapp v. Ohio to set out the global consensus for more moderate positions in these areas as a basis of legal argument and see what, if anything, there is to be said on the other side so far as this sort of appeal to foreign law is concerned.33 Maybe such an argument would reveal an inconsistent attitude toward foreign law on the part of Justices Kennedy, Breyer, and Ginsburg, if they were to respond by opposing its use in these cases. Or maybe it would not. Perhaps there are things to be said about the bearing of foreign law in these cases, including some of the things about disparities of constitutional culture that opponents of foreign law mention when it is convenient. However, as I understand it, Justice Scalia, though happy to mention our outlier status on abortion and the exclusionary rule when he thinks he can embarrass his opponents, is actually not prepared to put the foreign law arguments on these issues to the test in a case where it might actually count, presumably because he eschews all such arguments in principle. Very well then; in an adversarial system, those arguments will likely not be made.

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2. The Adversarial System A source of law can be used in an inconsistent and unprincipled way and still be a respectable source of law. Case law is the best example: judges often say of one another that their use of the principle of stare decisis is inconsistent, but that doesn’t mean it would be right to abandon appeals to precedent. Case law is taken seriously for a number of reasons. And unless we want to abandon or squander the advantages of stability, fairness, and so on that we are supposed to derive from our deference to precedent, we continue to use it and try to improve the way it is used. It helps that there are institutional ways of disciplining lawyers’ appeals to domestic precedents. We do it through the adversarial system. If lawyer A cites one line of precedent to support his argument but neglects another that points in the other direction, B, his opponent, if she is competent, will bring the other line of precedent to the attention of the court. If A cites a precedent which has been overturned or discredited, B will denounce it in her argument. And the same thing will happen if A tries to draw more from a given precedent than it supports. As we have seen, citing precedents from a single nation’s huge body of case law can be described as cherry picking and picking out friends in a crowd. But “the courts, exercising judgment, are supposed to resolve the competing selection of ‘friends’ by the competing parties.”34 If A resorts to a distorted, self-serving account of the existing case law, we rely on opposing counsel, B, to point this out and to weave the precedents into an argument that is legally sounder. Judges are supposed to pay attention to this and incorporate the better argument into their opinions. We also have ways of disciplining judges’ use of precedent. The appellate structure of our system of courts and the use of separate opinions, including public dissents, in multimember courts mean that errors in the use of precedent in judges’ opinions will be spotted and commented upon. It also means that judges, sparring with one another in the way that is familiar in the politics of our higher courts, will be quick to point out when they think a colleague has drawn more from a precedent than it supports or has left uncited a relevant precedent. Critics of the use of foreign law sometimes ask, How are judges supposed to know which foreign sources they should be citing in their opinions? It is the responsibility of counsel on either side to put this material before the judge. Gerard La Forest, a former justice on the Supreme Court of Canada, has remarked that when the Canadian Charter of Rights and Freedoms came into force in the 1980s the similarity between the issues it addressed and those addressed in the American Bill of Rights led counsel to raise “a

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vast panoply of issues, citing in support of their positions a plethora of American precedents.”35 Gradually those issues were settled, and the Court established patterns of dealing with citations to U.S. law. But the duty fell, first of all, on the lawyers. There is some dispute in Commonwealth countries and also, I think, in the United States about whether it is appropriate for judges to rely purely on arguments presented by counsel in this regard, or whether they are obligated to undertake research in their chambers. Gonzales notes that “Justice Breyer . . . reads the foreign-law opinions that are cited in briefs filed in the Supreme Court in an effort, he says, to see how judges in other countries have dealt with a similar issue.”36 Gonzales worries that “this approach—which depends, in the first instance, on whatever foreign law happens to be cited by the litigants—presents a problem of selection and at least the appearance of capriciousness.”37 But that takes us back to the adversarial aspect of the process. The judge can forego his own inquiry into foreign law if he can be sure that an inquiry is conducted aggressively and adversarially on both sides. In this regard the citation of foreign law is not much different from the citation of domestic precedent or, for that matter, the introduction of evidence. Notice, by the way, how this argument casts some doubt on the process by which foreign law came to the attention of the Supreme Court in Roper v. Simmons. As Basil Markesinis has observed, the citation of foreign law in Roper was embodied “in amicus briefs, was not discussed or contradicted in open court, and the way the data was collected was never tested in a scientific way.” By way of contrast, Markesinis refers to the way the use of foreign law was handled by the House of Lords in Fairchild v. Glenhaven (2002), in which the Law Lords “asked Counsel for both sides to address them on the attitudes taken by the Supreme Courts of Continental Europe on the issue there at hand.”38 That seems to be a better way of proceeding. Amicus briefs by themselves are not enough. Adversarial testing in citation and argument is required. A further difficulty is that, so long as the use of foreign law remains politically controversial, the adversarial aspect of its introduction may be one-sided. Under Attorney General Gonzales, the Justice Department was officially opposed to the citation of foreign law in U.S. constitutional cases. But in 2005 he revealed a dilemma faced by the lawyers in Justice: “The Solicitor General and the lawyers in his office understand that foreign-law materials might influence the vote of one or more members of the Court, and we may feel obliged as dutiful advocates for our clients to cite such materials. Thus, the growing tendency by some members of the Court to look to

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precedents from overseas in construing the Constitution has a direct impact on our work.”39 Justice Breyer speaks of a “chicken-and-egg problem: the lawyers will do so [cite foreign law] only if they believe the courts are receptive.” But by now, he says, “it should be clear that the chicken has broken out of the egg. The demand is there.”40 A recent nominee to the Supreme Court, Elena Kagan, got into difficulties on exactly this issue in her confirmation hearings. Though she did not want to appear to endorse the use of foreign law, she was on record as saying, in her earlier confirmation hearings for the office of solicitor general in the Obama administration, that she might have to authorize argumentation of this kind. Responding at the later hearing to an aggressive line of questioning from Sen. Tom Coburn, she protested, Kagan: You—you said as solicitor general I advocated the use of foreign law in some circumstances. And I do just want to make clear that what I said in those—those questions . . . Coburn: Here’s your quote, exactly . . . Kagan: . . . was that, because there are justices on the Supreme Court who believe in the use of foreign law in some circumstances, that I would think it was appropriate as an advocate to argue from foreign law or to cite foreign law in any circumstance . . . Coburn: Well, but that isn’t what you said here. Kagan: Well, I think, Senator Coburn, with all respect, that if you look at the question and if you look at the answer, I was speaking in my role as an advocate, saying that the—the primary consideration of an advocate is to count to five and to try to do the best the advocate can to ensure that the position that the advocate is taking will prevail. Coburn: But it’s not your position, because some other justices are using foreign law, you have the authority to do that, as well? Kagan: As an advocate, to the extent that I think that foreign law arguments will help the government’s case, then I will use those foreign law arguments.41

The position of both Kagan and Gonzales seems to have been that a responsible advocate might have to participate adversarially in the citation and discussion of foreign law once the Court or some members of the Court signaled its willingness to entertain arguments of this kind. Certainly we want to avoid a situation in which there is a sort of self-fulfilling prophecy about the disorderly use of foreign law. If conservative advocates refuse to participate in this, they can hardly complain, in the context of an adversarial system, that their liberal opponents are citing foreign law in a self-serving manner. The remedy for that is in their own hands.

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Is adversarial advocacy all that is necessary? Some scholars seem to think so. Once the adversarial system swings into play, the citation of foreign law will become self-regulating. Mark Rahdert says, The process for determining which particular foreign decisions are most relevant and how they ought to be used should be left to the adversarial process. This is, after all, the process for domestic precedent. Despite the importance of precedent in judicial decisionmaking, there are remarkably few strict rules about what precedent advocates should cite or how precedents should be used. Instead, we rely on the adversarial process to isolate and identify the most pertinent material. . . . There is no reason to treat comparative precedent differently. Good advocacy, not lots of rules, will enable courts to determine what comparative constitutional precedent counts, how much it counts, and for what it counts.42

I am not convinced. Despite what Rahdert says about domestic precedent, at least there we are already in possession of some system and some principles which enable us to affirm or criticize others’ use of precedent. We know what it is for a court to be bound by the holdings of higher courts, we can distinguish, more or less tightly, between courts that are supposed to be bound by their own precedents and those that are not, and we know how to distinguish obiter dicta from the ratio decidendi of a case. These guidelines are not utterly dispositive: there is room for fairly openended argument about, for example, how many contrary appellate decisions it takes to discredit a single outlying Supreme Court decision. But we have some bearings. In the case of the citation of foreign law, it might be thought that we have no bearings at all and that, until we do, arguments between opposing counsel as to which way the foreign law points or what the ius gentium on some topic is will be a matter of ignorant armies clashing by night. The first step in assembling some principles to govern the citation of foreign law is to understand why it is important, why it is, in some cases, indispensable. That is what I have been establishing throughout this book. I don’t think we can do without this account and rely on the adversary system alone, any more than we can rely just on the adversary system, without some sort of rationalization of stare decisis, in the realm of domestic precedent. That is what I meant when I said at the end of chapter 1 that we need some jurisprudence on this matter. Merely accusing our opponents of ignorance and parochialism is not enough.

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3. Difference and Relevance When judges in Ottawa began drawing on American constitutional jurisprudence for their interpretation of the Canadian Charter of Rights and Freedoms, it was immediately apparent to them that “American principles would always have to be adjusted to suit the different Canadian context and that transposition required great caution” and that they would have to be “wary of drawing too ready a parallel between constitutions born to different countries in different ages and in very different circumstances.”43 Comparative constitutionalism is a difficult undertaking. As Markesinis has pointed out, “The ability to read a foreign text does not mean that the reader will understand foreign law. . . . [O]ne of the primary functions of the comparatist [is] to warn national lawyers against the danger of thinking that they can understand foreign law simply because they have mastered a foreign language.”44 The laws of countries are complex and contextual, and gauging their effect in constitutional systems that are structured differently from our own may be difficult.45 It is not only the legal context. Montesquieu is famous for his denial that knowledge of other legal systems could be of much assistance in regard to law reform. He argued that the laws of each nation “should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another.”46 Variations of culture, of national temperament, even of adaptation to climate may make all the difference to what laws prove tolerable to or adequate for a people given their historical and geographic experience. All this can be accepted. But I am surprised that these points are cited so commonly as a conversation stopper in the American debate about recourse to foreign law, as though we lawyers were not skilled in referring holdings to different circumstances and adjusting our sense of their relevance accordingly. Ernesto Sanchez says that “because all nations . . . differ from each other in the social and cultural contexts that result in laws’ development, a foreign state’s practice concerning an issue can never really be relevant or transferable to the United States.”47 But that does not follow; what follows is that the relevance to the United States will be a matter of argument relating context and circumstances on the one side to context and circumstances on the other. The process is not greatly dissimilar to that involved in extrapolating ideas from the Founding era to the early twenty-first century: no one denies the massive differences between a small number of postrevolutionary Atlantic states poised precariously on the edge of a largely unexplored

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continent and the circumstances of a massive postindustrial superpower, the world’s hegemon, with vastly different structures of government than existed in 1787. Yet we still think we can draw conclusions for law in the one era from law in the other. Lawyers relate principles to differences of circumstance all the time. It is one of the things we are supposed to be good at. In the New Zealand case of Hopkinson v. Police (see chapter 5) Justice Ellen France compared flag burning in New Zealand to flag-burning cases from countries like the United States and Hong Kong.48 Like any good lawyer, she was able to identify the differences between these countries and calibrate their bearing on the New Zealand case accordingly. The Hong Kong prohibition, on burning the Chinese flag, was relative to the delicate political situation there immediately following the colony’s return to China: nothing comparable, she said, supported a strong prohibition on flag burning in New Zealand. In the American case, she identified a Montesquieuian difference in ethos. It is well known, she said, that the temper and tone of the American people are likely to be much more offended by flag burning than the temper and tone of the people of New Zealand. But even given that factor, the U.S. courts struck down flag-burning statutes. In this case, then, awareness of difference reinforced the conclusion she wished to draw. No doubt all this places heavy demands on legal knowledge and education. But it does not mean, as Sanchez suggests, that foreign material must be ruled out in principle.

4. A Little Knowledge . . . Relevance is one thing, the ability to understand foreign law and discern its relevance another. How can counsel and judges cite and use foreign law if they don’t know anything about it? I guess they can pick out a few precedents, a few lines of reasoning, a few pieces of rhetoric that seem to favor the position they are arguing for.49 An idea or a line of analysis or a new way of looking at a problem don’t require systematic knowledge of the foreign legal system from which they are drawn.50 But how can serious use be made of foreign materials if the users don’t know anything about the legal, political, and constitutional systems from which the foreign materials emerge? “The judicial systems of the United States,” says Richard Posner, “are relatively uniform, and their product readily accessible, while the judicial systems of the rest of the world are immensely varied and most of their decisions inaccessible, as a practical matter, to our monolingual judges and law clerks.”51 We are imagining our judges using these materials in deep and subtle arguments about American constitutional structure and doctrine or

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about doctrine in other areas of law. Surely that should be matched with an equivalent knowledge of the materials on which they are drawing and their background, so that their expertise as American lawyers is not betrayed by their incompetence as consumers of foreign jurisprudence.52 The worry here is that judges with little knowledge of foreign systems will be at the mercy of unscrupulous advocates or brief writers and end up using foreign law material selectively or haphazardly.53 The objection is analogous to Bentham’s critique of the state of English common law at the end of the eighteenth century: The judges who . . . are . . . supposed to take an account of every case that came before them never trouble their heads about the matter: the business is left to certain officers who are under them. These officers give what is called the history of the case, which history is termed by some such name as a record. This record being copied from precedents of the darkest antiquity instead of being a complete history of the case of which it purports to be the record, is in fact a partial and imperfect history of a different case that was determined upon some hundreds of years before: applied to the case in question it is in consequence, partly imperfect, partly false, partly irrelevant, and partly unintelligible.54

The reports “are published by anybody that pleases” and are “written in a form the most inconvenient for reading or consulting, of any that could have been devised,” and very few people have access to them: Being by many a wagon load too bulky for publication they are kept locked up in places where not one in ten thousand of those whose conduct is to be guided by them and whose fate depends on them can know how to find them: much less to make anything of them when found. The trouble of finding them out is so great and the information to be got from them so scanty and indecisive that it is not above one time in a hundred that even the judge who professes to take the decisions, given in the cases of which they purport to be the histories, for the measure of his own, can endure to look at them. Whether they have weight in any case or whether they have none, depends therefore upon accident: if a fit of curiosity happens to take the judge, . . . they are handed down: if not they are let alone. One out of a thousand becomes a law: the nine hundred and ninety nine others remain waste paper.55

The result is complete randomness so far as the effect of the authorities is concerned: “Sometimes . . . a judge who had been dead and forgotten for half a century or for half a dozen centuries, starts up on a sudden out of his tomb, and takes his seat on the throne of legislation, overturning the establishments of the intervening periods, like Justinian brought to life again at Amalfi.”56

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I have the impression that this is how many modern critics of the use of foreign law think of the state of the authorities that are relied on when a judge or an advocate or an amicus happens to stumble upon some convenient foreign authority. But in fact we are not, like Bentham, faced with obscure, and inaccessible materials. Foreign law reports are as well organized as our own, and all are in massively better shape than English common law was in Bentham’s day. Digitization has made access to foreign law incomparably easier than access to most American state law was half a century ago. American lawyers have access to a range of previously unavailable foreign legal materials through electronic databases.57 And lawyers elsewhere seem to be able to come to terms with materials that are foreign to them. In many countries, the depth of foreign courts’ knowledge and discussion of American constitutional precedent contrasts with the dearth of knowledge and discussion of comparative sources in most U.S. constitutional law.58 For example, the practice of Commonwealth lawyers refutes every day the complaints of American critics that reference to foreign law is not something our judges or advocates can be trained to do or that it is not something that they can be relied upon to do in anything other than a haphazard way. Justice O’Connor is no doubt right to say that “there is a great need for expanded knowledge in [this] field, and the need is now.”59 Despite the political controversy, judicial demand for information about foreign law is not likely to decline and “over time, the inevitable effect will be more extensive knowledge and use of foreign legal decisions in American courts.”60 But it won’t happen by magic. Comparative constitutional analysis is not an easy subject, and it needs to be framed specifically for this use of it. No doubt the principles that inform our use of foreign law will be informed by the principles of constitutional comparativism as an academic discipline. But they also need to be adapted specifically to the role that foreign law plays in our practical jurisprudence.61 That is why, as I said at the end of chapter 1, we need more legal philosophy specifically on this topic, so that we have a good theoretical sense of what needs the use of foreign law is supposed to respond to. How will this knowledge be acquired? Some of it is acquired by contacts among judges. Says Justice Ginsburg, “Just as lawyers can learn from each other in multinational transactions and bar associations, judges, too, can profit from exchanges and associations with jurists elsewhere.”62 But it is also a broader question of legal education. At the moment, most students are not prepared to engage with foreign materials.63 Only a handful of students take courses in comparative law. As John Langbein observes,

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The vast majority of American law students graduate in complete ignorance of comparative law. Thereupon they join the American legal profession, where they can remain in blissful ignorance that the rest of the civilized world disdains many of the attributes of a legal system that Americans take for granted. Within the intellectual life of the American legal academy, comparative law is a peripheral field. Questions of comparative and foreign law seldom figure in the conversation about law and law-related subjects that comprises the common intellectual life of an American law faculty. Like a child in Victorian England, the comparativist on an American law faculty is expected to be seen but not heard.64

Justice Breyer says that the demand is there: “To supply that demand, the law professors, who teach the law students, who will become the lawyers, who will brief the courts, must help to break down barriers between disciplines.”65 Law schools need to face up to this demand. In another context, Richard Posner has suggested that law schools rethink the way they address the third year of legal education: he thinks it might helpfully be spent acquainting law students with the social science techniques they need for modern lawyering.66 If comparative law is also needed, then some of this time could be devoted to that too, perhaps at the expense of the boutique seminars in social indignation that occupy a lot of second- and third-year students at the moment. Judge Posner has also commented on the role scholars might play in making judicial proceedings more literate in the social sciences. This too might be matched by their scholarly devotion to detailed comparative studies on the sorts of issues that are likely to prompt the use of foreign materials.67 I do not mean just advocacy. I mean the sort of scholarship that might enable courts and counsel to evaluate the foreign materials they were being confronted with on an ex parte basis. In her decision in Hopkinson v. Police Justice France cited not only a number of American and other non–New Zealand cases, but also an American law review article to provide general context.68 There is no reason legal scholars shouldn’t take this as part of their mission and no reason law schools should not evaluate their appointments and tenure on the basis of their willingness and capacity to pursue such work. Some of these approaches are being taken already, and the rest consist of modest proposals for educating lawyers in the tasks that a wider, more open legal world is going to require of them. But it is remarkable how many critics assume that no such change is possible and use that as their reason, sometimes their only reason, for condemning the invocation of foreign law. For some, the best is the enemy of the good. Joan Larson, for example, says,

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“The risk of incomplete or inaccurate understanding of foreign legal materials may outweigh the benefits to be gained from studying foreign experience.”69 Others, however, argue that if it is important enough to refer to foreign law, even partial or unlearned citation may be better than nothing. Our first steps may excite derision among the experts, but gradually we will get good at it.70 American lawyers who are opposed to the citation of foreign law say that, for their part, they are not prepared to countenance any of this. They rely on their ignorance as a ground of opposition, refusing, in effect, to learn how to participate in the aspects of professional life that might introduce greater discipline and reliability into this practice. And on this basis they predict dire consequences if the practice of invoking foreign law is allowed to take hold. One is reminded of John Stuart Mill’s observation: “There is no difficulty in proving any . . . standard whatever to work ill, if we suppose universal idiocy to be conjoined with it.”71 In fact, the argument from ignorance gets things exactly the wrong way round. Either there is a case for invoking foreign law or there is not. If there is not, then there is no reason to persuade American lawyers and judges to widen their horizons and to develop a more disciplined grasp of law from other jurisdictions. But if there is a case—a case of the sort I have laid out in chapters 4 and 5—then we have no alternative but to train ourselves and develop professional structures that will enable us to do it properly. Given the example of lawyers elsewhere in the world, we cannot say that the task is impossible, and if it is not impossible we should be very careful about invoking the difficulty of it as a ground for not doing what we otherwise have reason to do.

CHAPTER EIGHT

Legal Civilizations

1. A Consensus of Less Than 100 Percent Before Roper v. Simmons, there was Thompson v. Oklahoma (1988). In that case, the Supreme Court held that an adult could not be executed for a crime he committed when he was younger than sixteen. Writing for a plurality on the Court, Justice John Paul Stevens said that a prohibition on executing the petitioner was “consistent with the views that have been expressed . . . by other nations that share our Anglo-American heritage, and by the leading members of the Western European community,” and he referred to the laws of Australia, Britain, Canada, France, Italy, West Germany, the Netherlands, Portugal, Spain, the Soviet Union, Switzerland, and all of the Scandinavian countries.1 Now these are hardly all the countries in the world. Depending on how you count, there are about 192 countries in the world with separate legal systems: the 15 Justice Stevens mentioned are barely 8 percent. But he seemed content with the consensus he identified: it was enough to convince him that executing William Wayne Thompson “would offend civilized standards of decency.” He said nothing about the laws of the other 177 countries. How should we think about this—a consensus that is less than 100 percent? How should we think about the use of terms like “civilized” and “nations that share our Anglo-American heritage” to describe the consensus we actually rely on? To begin with the arithmetic, should we ever accept any proportion short of unanimity for defining ius gentium? The way to answer this question is to go back to what I said in earlier chapters about why a consensus might matter. In chapter 4 I said that a consensus might be normative for us because it embodies the wisdom and experience of the world’s legal systems. In chapter 5 I said a consensus might be normative for us because it is 187

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important, for practical reasons or reasons of fairness, for the countries of the world to harmonize their approach to problems of a certain sort. I conceded that, in certain cases, both kinds of reasons might justify our taking seriously the law of just one other country on some issue: we might have a particular reason for harmonizing our homicide law with that of a neighboring country to which we expect to make a large number of extradition requests. Or we might have similar reasons for harmonizing our law with that of many countries but not necessarily all. And the same may be true of the argument about learning and experience. We might have reason to pay attention to the laws of just one other country, from whom we have in past found it easy to learn, or from a small set of such countries, or from many such countries but not necessarily all. Maybe what there is to learn from a large number of countries is that approach X to a given legal problem has proven more satisfactory, to the countries that have tried it, than approach Y has proven to the countries that have tried Y. Under these circumstances, we might say that the legal wisdom of the world consists precisely in this difference in accumulated experience—in which case we would associate the ius gentium with the wisdom of the majority of countries that have tried X rather than with the smaller aggregation of countries which have followed the alternative path. Such looseness will make readers nervous if they are expecting a tight set of necessary and sufficient conditions for something to be part of the ius gentium. But that expectation is misplaced. It might be justified if reference to the ius gentium were supposed to be authoritative in the sense of simply and peremptorily settling legal problems (in the way a legislated rule settles problems). But, as I showed in chapter 3, less tightness is called for if the provisions of the ius gentium are expected only to have a bearing on our decision, along the lines of what lawyers have called “persuasive authority” or along the lines of Dworkinian principles. The nervousness here is about the danger of subjectivity creeping in, once we abandon the hard fact of unanimous consensus. Once we let go of the 100 percent benchmark, it looks like we are engaged in cherry picking, identifying the countries whose laws seem most congenial to the result we want to reach and ignoring the others. Or we may lazily concentrate only on the legal sources that are familiar to us or the ones written in English while ignoring all the others. What I want consider in this chapter is the possibility that certain moral and political considerations might come into the picture here as well, interacting with different sets of consensus statistics in a sort of Rawlsian equilibrium. To illustrate, here is a historic example.

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Hundreds of years ago Alberico Gentili urged a majoritarian approach to the bearing of ius gentium on the laws of war.2 Gentili began by identifying the law of nations with the laws and customs that have seemed acceptable to all nations. But quickly it became clear that the term “all” was a flexible one: “It is not necessary to understand omnes [all] in such a way that when one speaks of the usage of all nations it should be considered to mean absolutely every nation. . . . [A]s the rule of a state and the making of its laws are in the hands of the majority of its citizens, just so is the rule of the world in the hands of the aggregation of the greater part of the world.”3 But Gentili’s analogy with majoritarian decision making within a state really will not do. In the case of majority decision within a state, we are willing to consider a less-than-overwhelming majority as dispositive to the extent that we value having a given question resolved one way or the other. A simple majority at least renders an outcome, and this is valued in cases where it matters that an issue not be left undecided. But that is not a feature of the jurisprudence of the law of nations. Not even the most enthusiastic proponent of ius gentium pretends that it amounts to a comprehensive code or that there would be a serious problem if there were some issue on which it had nothing to say. There is no reason to strive to find what the ius gentium is on a given topic in cases in which existing legal systems are more or less evenly divided, with, say, 45 percent of states doing things one way and 55 percent another way. We could just infer that this is a matter on which ius gentium is silent. More pragmatically, there would not be much point in appealing to foreign law in such a case because our opponent could make a case that was more or less as powerful as ours. Gentili’s position might be justified partly on the ground that in his day the practice of some nations was unknown to the scholars who were thinking about ius gentium and partly on the ground that the practices of some nations may have to be regarded as outliers relative to a more general consensus. His majoritarian analogy makes it sound as though this could be done purely on the numbers. But this is surely not the case. On any given topic we may have to choose between one partial consensus and another, and that choice may perhaps be guided by some independent sense of the moral quality of the consensus. In a stylized case we may find that 49 percent of nations allow a successful siege to end in the slaughter of a city’s defenders if they had refused an opportunity to surrender the city with impunity, while 51 percent of countries prohibit the slaughter of defenders who ask for quarter after the city’s walls have been breached. Both consensuses are partial. But we may regard the latter as the law of nations, not because it is marginally superior by the numbers, but on account of facts like

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the following: the 51 percent might be made up of countries whose law is part of a stronger consensus on other matters; or the solution adopted by the 51 percent might be doctrinally more consistent with other parts of the ius gentium; or the 51 percent might be made up of countries which are known to have given greater thought to the matter rather than mindlessly replicating old customs. Now, of course, these considerations are themselves evaluative, and they might be condemned in turn as adding subjectivity upon subjectivity or as simply making explicit the results-oriented bias that critics think is endemic in the citation of foreign law. But they need not be question begging. They may be a product of our insisting on taking seriously only the laws of “civilized” countries or only countries that we have independent reason to regard as free and democratic or committed to the rule of law. (By “independent reason” I mean a reason that does not turn on the precise issue being addressed in the case where the foreign law is invoked.)

2. The Problem with “Civilized” An allegation of rigging a partial consensus is bad enough. But for many people, defending it on the ground that it is a consensus of civilized peoples makes matters worse. When I delivered the Storrs lectures at Yale in 2007, one of the things I was most closely questioned on by student members of the audience was my formulation of the claim that our courts should pay attention to the law of civilized countries and my suggestion that ius gentium might be regarded as a civilization-wide artifact of legality. What did I mean by “civilized,” I was asked. What kind of ethnocentric talk is that? Who are the uncivilized countries? the ones that aren’t white? thirdworld countries? Islamic regimes? or just countries I find it inconvenient to mention because I don’t know anything about their law? There was a suspicion that something that had begun life as a universalistic idea was now being watered down so it represented nothing much more than a consensus of people who think like us. In Roper v. Simmons Justice Kennedy said, “Only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China.”4 He added that since that time “each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice.” What if Roper v. Simmons had come up for decision in the years before these seven countries had abolished or disavowed the juvenile death penalty? Might Justice Kennedy still have been able to speak of a world

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consensus against the juvenile death penalty, only now it would be a consensus among civilized countries, putting these seven outliers to one side as notoriously rogue or uncivilized? And don’t we end up just picking and choosing the countries we like, calling them civilized, and rejecting the outliers as uncivilized or barbaric? I am not the only person who uses this language in the foreign law debate, but I was embarrassed to have to explain myself to the students at the Yale Law School.5 The complaint I hear most frequently is that the idea of a consensus among civilized nations is question begging or offensive and possibly both. It is question begging if “civilized” means holding standards like those of the speaker—for example, condemnation of the death penalty or aspects of its administration as barbaric (the opposite of civilized). Since the appropriateness of using the death penalty is exactly what is at issue in many of the American cases involving the citation of foreign law, counting as civilized only countries that have abolished capital punishment might quite properly be regarded as an egregious example of seeking friendly faces in a crowd. But even if it is not used to beg exactly the questions that are in dispute in a given piece of litigation, the idea of a consensus among civilized nations may still seem offensive—a projection of our views and values and principles onto the rest of the world and a patronizing dismissal of those whose traditions are unlike ours. It doesn’t help much to point out that the reference to civilized countries has been a trope of our constitutional jurisprudence since the Founding and that it was heard frequently throughout the nineteenth and twentieth centuries. Its modern use in the Eighth Amendment context stems from the opinion of Chief Justice Warren writing for the Court in Trop v. Dulles, when he said “Civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.”6 The word is used often in connection with “cruel and unusual,” which, as the Court has consistently held, draws part of its meaning directly from “the maturing values of civilized society.”7 In the nineteenth century it was often said that the rules regarding treaties and warfare and customary international law applied only as among civilized states. This might have begun as a straightforward Eurocentric condition. As Benedict Kingsbury has pointed out, “Europe was established as the original sphere of operation of international law. . . . Much of the relevant practice and law-making activity, arose within or between European states.”8 But gradually non-European nations were admitted to this circle “as their degree of civilization . . . warranted.” So, for example, the Ottoman Empire was admitted in the mid-nineteenth century

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and Japan after 1895. Kingsbury cites Lassa Oppenheim as arguing that in this context “civilization” meant simply whatever was necessary “to enable the respective State and its subjects to understand and to act in conformity with the principles of the Law of Nations.”9 Specifically in connection with the law of nations, the use of the “civilized” trope is as old as Blackstone’s characterization of this body of law as “a system of rules . . . established by universal consent among the civilized inhabitants of the world.”10 In the domain of what I have defined as the ius gentium, the standard of civilization has been used to characterize sovereign immunity (“It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission”);11 to distinguish the principle of private property from inheritance laws;12 to defend limitations on working hours;13 to characterize customary international law14 and the law merchant;15 and, recently, to try to limit the ambit of the Alien Tort Statute.16 But it has also been used to defend slavery. In a case called The Antelope (1825) Chief Justice John Marshall noted that the “Christian and civilized nations of the world, with whom we have the most intercourse, have all been engaged in [the slave trade].”17 And then, notoriously, in Dred Scott v. Sandford (1857), Chief Justice Roger Taney said the following about “the state of public opinion in relation to that unfortunate race [humans of African descent], which prevailed in the civilized and enlightened portions of the world at the time . . . the Constitution of the United States was framed and adopted”: They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. . . . This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute.18

Never mind that Taney also went on to proclaim, defiantly, “No one . . . supposes that any change in public opinion or feeling . . . in the civilized nations of Europe or in this country, should induce [this Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.”19 Of course it is no surprise that slavery could be defended under a ius gentium standard; as we saw in chapter 2, the example of slavery was often adduced to distinguish the ius gentium from natural law.20 Still, the fact that “civilized” could

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be used to characterize a consensus of this character makes it altogether treacherous in the modern debate, especially when one sees “civilized” juxtaposed with “Christian” (in the Antelope opinion) or appearing in a phrase like “the civilized portion of the white race” in Dred Scott.21 So the terrain is treacherous. And often it is hard to know what counts as winning and what counts as losing. On the one hand, there are bound to be complaints about the exclusion of certain countries that are treated as being beyond the pale so far as the articulation of ius gentium values is concerned. These complaints have a venerable pedigree. In 1717 a Russian intellectual, Peter Shafirov, complained that his country was excluded from the ambit of contemporary appeals to the law of nations: “For several decades the Russian people and state have been discussed and written about in other European States as are the Indians and the Persians and other peoples which have no communication with Europe except some trade. Russia was not seen as participant in European matters of peace and war and was even rarely counted among the European nations.”22 Given the failure of other nations to see his country as a normal European civilized country, Shafirov thought that any appeal to the law of nations had to be treated as simply an appeal to west European public opinion. But Shafirov was not quibbling with the term “civilized.” He wanted it to be used against states like Turkey, only not in a way that would at the same time exclude Russia. In the modern American debate, there is certainly concern about the picking and choosing that goes into delineating the appropriate realm of so-called civilized countries. But there is also concern about who is on the list, not just about who is “conveniently” excluded. Zimbabwe seems to be the main culprit, after Justice Breyer made what he has subsequently referred to as a tactical error in referring to a decision of that country’s highest court on the matter of the death row syndrome.23 So there is a Scylla and Charybdis situation. On the one hand, including certain disreputable nations that are supposedly beyond the pale risks the accusation of driving our law down to the lowest global common denominator. 24 On the other hand, excluding certain nations opens us up not only to complaints from their jurists but complaints at home about cherry picking one’s consensus. And all of that navigation needs to be conducted against the background worry about Eurocentrism or white, Anglo-Christian parochialism.25

3. Attributes of Legal Civilization What are we saying about a country when we call it civilized, in the context of the definition of ius gentium? Are we saying simply that it is a

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country that shares some values with us? or are we identifying certain values that would define “civilization” whether we turned out to share them or not? Oppenheim’s criterion for international law26 would be question begging in the ius gentium context in that we would be using “civilized” to distinguish some of the standards that a given state understands and complies with from others. Some direct qualitative criteria are needed, while avoiding egregious ethnocentric examples like “white” and “Christian.” What sort of criteria might be relevant? The Rule of Law The quotation from the Institutes that I have been using as a motto suggests one initial criterion: “All peoples who are ruled by laws and customs [qui legibus et moribus reguntur] use partly their own laws and partly laws common to all mankind.” The suggestion seems to be that the ius gentium complements particular national norms only in countries that are ruled by law. Let us consider how this idea works. The last outliers on the juvenile death penalty, apart from the United States, were said to be China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen.27 Many would say that none of these countries has the rule of law; indeed, people might say that some of them barely have working legal systems, in the sense in which law can be regarded as a distinct mode of governance.28 We have to be careful not to use an overly narrow definition of law or too substantive a criterion of the rule of law; or, if we do, not to use it in a question-begging way when we insist that recourse should be had only to law or only to norms and decisions administered in the spirit of the rule of law. One reason for insisting on a rule-of-law criterion is that we might want to ensure, when we consult some foreign statute or precedent, that it really does apply as law in the society in question. We might want to insist that a country take its law seriously before we can be expected to take it seriously. I believe there was some suspicion inside and outside the Supreme Court that many of the countries which were said to have repudiated the juvenile death penalty had done so only “on paper.”29 Justice Scalia thought it was interesting that “whereas the Court [in Roper v. Simmons] is not content to accept what the States of our Federal Union say, but insists on inquiring into what they do (specifically, whether they in fact apply the juvenile death penalty that their laws allow), the Court is quite willing to believe that every foreign nation—of whatever tyrannical political makeup and with however subservient or incompetent a court system—in fact adheres to a rule of no death penalty for offenders under 18.”30 The worry here is that countries

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adduced as part of the consensus might regularly kill citizens extrajudicially, and if the victims include juveniles or people being killed because of what they did when they were juveniles, their legal records would not necessarily reflect this. So we should insist on a country’s observing something like Lon Fuller’s principle of congruence (between law on paper and official action) to rule this possibility out.31 This is especially important in cases in which country A seeks to learn from country B whether some principle is workable or can be kept under control: for instance, can a given limit on a right be enforced without metastasizing? If country B is not really committed in practice to the rule in question, then it may be too easy for it to parade itself as committed to it on paper, and there may be little to learn from its example about the strains that the principle actually imposes on a society or on the rest of its law. What we might want, then, under the auspices of “civilized,” are countries that can give the rest of the world a reliable account of how they are governed. Also, the idea of a rule-of-law restriction sits naturally with the normative argument I developed in chapter 4. The learning I talked about there was lawyers’ learning, transposed from one setting to another, in both of which advocates and judges were seeking to analyze and work their way through a difficult problem in a lawyer-like way. I specifically argued toward the end of chapter 4 that the extrapolation of such learning, from one system to another, made sense only in the context of a background commitment to something like legal science or at least to legal problem solving as in large part a cognitive exercise, not merely a matter of will. We might associate the rule of law with that sort of repudiation of pure voluntarism: a system of governance is characterized by the rule of law only if it is governed—shall we say?—thoughtfully and in a way that presents the problems of governance as something to be thought through, not just hacked through like a Gordian knot. Admittedly this expands the idea of the rule of law from the narrow formalism commonly associated with it. Often the rule of law is seen simply as the specification of a set of criteria that the exercise of legislative will must conform to: it must be expressed publicly, clearly, prospectively, and in general terms.32 In recent work I have argued that the rule of law needs to be conceived more capaciously than this, not necessarily in a more substantive direction, but in a direction that takes seriously the dimensions of procedure and argumentation associated with legal governance.33 In a system of law, the basis on which people are ruled presents itself as something one can make sense of. The norms that are administered in our legal system may seem like just one damned command after another, but lawyers and judges

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try to see the law as a whole; they attempt to discern some coherence or system, integrating individual items into a structure that makes intellectual sense.34 People take advantage of this aspiration to systematicity in framing their legal arguments, by inviting the tribunal hearing their case to consider how the position they are putting forward fits generally into a coherent conception of the spirit of the law. So law becomes a matter of argument.35 It conceives of the people who live under it as bearers of reason and intelligence. They are thinkers who can grasp and grapple with the rationale of the way they are governed and relate it in complex but intelligible ways to their own view of the relation between their actions and purposes and those of the state. Again, I don’t think we would agree that a society was governed by the rule of law if its procedures did not afford parties the opportunity to make arguments of this kind in complex cases where the state was bearing down on them. It is tempting also to try to connect the themes pursued in chapter 5 to the idea of the rule of law. I said in chapter 5 that the basic lawyer’s idea of treating like cases alike can help explain why we feel the need to bring the administration of, say, fundamental-rights law in one country into harmony with the administration of fundamental-rights law in other countries. H. L. A. Hart suggests that there is something intrinsically legalistic about the commitment to treating like cases alike. And so we might say that ius gentium, which is supposed to embody the principle of harmonization, will only draw on decisions from countries which are committed to that aspect of the rule of law—principled generality, we might call it.36 But that won’t quite do. I showed in chapter 5 that treating like cases alike does not argue directly for legal harmonization across systems unless one can establish that the people of the legal systems in question form a transnational community, for example, a community dedicated to upholding one another’s human rights. If that can be established, then the legal logic of treating like cases alike takes hold. But then the crucial criterion is a society’s belonging to the relevant community rather than its domestic adherence to the legal logic of consistency. Free and Democratic Nowadays when we talk about civilized countries we often mean countries that are free and democratic, that are ruled democratically by their people and are committed to affording their people the protection of fundamental rights. Even Justice Scalia has acknowledged that we might want to consult the practice of democracies: “The practices of other nations,

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particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so ‘implicit in the concept of ordered liberty’ that it occupies a place not merely in our mores but, text permitting, in our Constitution as well.”37 What is this criterion based on? The emphasis on democracy is not supposed to help with the problem I discussed in chapter 6, namely, the undemocratic nature of foreign law relative to the American polity. Law does not become democratic here because it was enacted democratically elsewhere. Nevertheless, democracy may be important for a number of reasons. It may be thought, first, that laws are more thoroughly tested in a democracy. Any problems they throw up are more likely to be aired than in a dictatorship, and there is a genuine prospect of repeal or amendment in a representative legislature in response to difficulties expressed by those who are subject to them. Democratic politics acts as a sort of filter or proving ground. Accordingly, when we cite the laws of a foreign democracy, particularly laws of reasonably long standing, we are drawing on a genuine repository of experience from the foreign country and invoking a stable, workable basis for global harmonization. Second, given that we think of our law as being democratic in character, that is, as law embraced by a free people, it may be appropriate as a matter of comparing like with like to bring it into relation with other laws embraced by other peoples on roughly the same basis. This draws on the possibility that law has a different character as well as a different dynamic of development in a democracy.38 Equally, democratic law in one nation may share with democratic law in another nation a common sense that the people and the peoples of the world are banding together to uphold basic rights and freedoms. Third, because we are dealing mostly with constitutional law, it may be thought that the constitutional structures of a democracy are important as a basis of comparison. While these structures vary from state to state, especially in the role they assign to the judiciary, nevertheless, the decisions of a judiciary conscious of their delicate relation to elective institutions may be quite different from the position of the judiciary in a regime in which there is no democratic alternative to the kind of power the judges are exercising. The three points just set out refer to democracy as a political procedure: rule by the people through free elections and representative institutions. But “democracy” may also be used in an expansive sense to mean a society that respects the basis rights of its inhabitants, not just the right to vote but rights ancillary to democracy like freedom of speech and assembly and perhaps

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also religious freedom and the right to a fair trial, which, even though they have no connection to democracy in the narrow sense of political procedure, are often what people have in mind when they use this term.39 Much of the learning and harmonization envisaged in chapters 4 and 5 has to do with issues of fundamental rights, and it may well be thought that this presupposes that we are working, back and forth, with societies that really are committed to these rights—societies that take them seriously and do not simply drop them or proceed to violate them at the first sign of difficulty. For reasons mentioned earlier, it is from these societies, not from those whose commitment to rights is simply a paper one, that we can expect to learn about how to deal with rights; and it is with these societies that we should be looking to harmonize our human rights practice. We don’t just want to coordinate lip service. We want to work with legal systems that really get the idea of a free society. In chapter 5 I mentioned the limitation clause that is found in a number of bills and charters of rights, for example, section 5 of the NZBORA: “The rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”40 I said that these reasonable limitation clauses are based on some sense of a shared standard for evaluating limitations on rights thought to be necessary for the common good: the general idea is to look to what can be justified “in a free and democratic society”; the idea is that that refers to a conception of a certain kind of society shared by many countries in the world. To take this standard seriously is to associate the justification of a limit on rights not with a society’s idiosyncratic conception of freedom and democracy, but with the idea of freedom and democracy as such. Accordingly, it may be incumbent on a society which prides itself on having free and democratic institutions to refer to the way that that ideal is understood in other countries that exhibit similar pride. That way there is some guarantee that it is freedom and democracy as such that we are priding ourselves on, not just preening over the local customs we happen to have associated with these terms. Just Societies and Decent Societies A third possibility is that “civilized” means “just.” That is, it may refer to the justice of the basic structures of the societies we are interested in, structures whose justice means it is worth our while to pay attention to their laws and to extrapolate something from them that will help us grapple responsibly with the problems of justice we face. Alternatively, we might

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argue that reasonably just societies are engaged in a common endeavor to improve and sustain the justice of their social and political arrangements, an endeavor in which they both support and cajole one another.41 A justicebased criterion of civilization would help us identify our partners in this enterprise. A requirement of substantive justice might be more or less demanding: we may look to only what John Rawls would call “well-ordered societies” or we might include what he would call “decent societies” as well, societies that respect fundamental rights but are not otherwise substantively just.42 The more demanding the conception of justice used, the greater the chance that delimiting the range of countries whose laws we consult will be question begging or merely a matter of reinforcing our own convictions. Justice is a matter of dispute in every modern society, and many of these disputes play themselves out in the courts.43 We do not want a jurisprudence of the invocation of foreign law which has the disputants in one country condemning one another’s foreign points of reference as uncivilized because they do not agree with the conception of justice favored by one faction or the other. But the use of a justice criterion need not be so crudely question begging. Leaving aside the precise issue of justice that is in dispute in the case in which recourse to foreign law is envisaged, it might be possible to distinguish reasonably just from egregiously unjust societies as points of reference for the citation of foreign law. Much of the outrage about Justice Breyer’s citation of a legal decision from Zimbabwe in Knight v. Florida44 stemmed from the fact that Zimbabwe was known at the time to be a brutal tyranny in virtually every respect: one did not have to be an opponent of Justice Breyer’s misgivings about the death row syndrome in order to appreciate that. (Whether it was so evidently a tyranny eighteen years ago when the case that Breyer mentioned was decided is another matter.)45 In other words, the relevant sense of justice need not be tailored to the particular use that is being made of the foreign citation; indeed, it need not be tailored to the controversial social and political beliefs held by the particular jurist. There can be an appeal to a shared sense of justice that offers to explain why some countries are referred to and others not. That appeal, that explanation, may not be uncontroversial, but it need not be regarded as having been made in bad faith. And if it is controversial, it can be countered in argument in the usual way. The reference to justice might be more problematic for casual, magpielike invocations of foreign law, rather than invocations of foreign law under the auspices of ius gentium. If it is understood that we share a whole body of principles of ius gentium that can be used as a resource in particular cases,

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then some of the principles comprised in that body of law can be used to check others or to establish a context for substantive argument back and forth about whether a given legal system or subset of legal systems deserves to be regarded as part of this broader consensus. Just as the known scientific credentials of a laboratory on every issue other than the one immediately in question might help us determine whether that laboratory has anything to offer in regard to the problem we are grappling with, so the position of a given legal system as a full participant in or, alternatively, as a persistent outlier from the ius gentium consensus may help determine whether we want to regard it as one of the countries whose law it is wise or important to consult.46 Developed Societies Besides the moral criteria I have been exploring—the rule of aw, democracy, freedom, and justice—the criterion of “civilized nations” may also refer to issues of political and economic sociology. It may be thought, for example, that developed nations have little to learn from some developing nations, not because the latter cling to different values, but simply because the issues their courts grapple with are unlikely to have the complexity of the issues that exercise our courts. The countries in question may not have sufficiently developed institutions to give rise to the problems of governance that exercise our constitutional lawyers; or their economies may not be developed enough to generate the challenges that arise in our commercial law or in our law of torts and contract. So, for example, when we make comparisons between the law and practice of the United States and the laws and practices of other counties, often we refer to “advanced” democracies, or we elicit comparisons under the auspices of an organization like the Organization for Economic Cooperation and Development (OECD), which limits the countries it surveys (to thirty-two) on more or less exactly these grounds. Obviously there is potential for some slippage between this criterion and a more explicitly moral criterion of “civilized.” (Compare, for example, the OECD’s insistence that member countries must have and be committed to a market economy.) Again, such an approach may give rise to controversy and, in extremis, to allegations of question begging. But it need not do so, and the considerations set out in the previous paragraph indicate at least the potential for “civilized” to operate in a value-free way.

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4. Family Resemblance There is always a worry that by “civilized” we might mean nothing more elevated than “just like us.” Some critics of the invocation of foreign law have noted a tendency to quote mostly from a relatively small range of jurisdictions with whose law we are more or less comfortable: the United Kingdom, Canada, Australia, New Zealand, South Africa, and the European Court of Human Rights, that is, the ones whose laws and judicial opinions are written in English (or, at worst, French), which we can readily understand and access on Lexis or Westlaw. This bias may be a pragmatic one or it may be a crude way of getting at something that is thought to be more important. When Justice Felix Frankfurter said in Rochin v. California (1952) that the Court should ask whether the proceedings that were called in question “offend those canons of decency and fairness which express the notions of justice of Englishspeaking peoples,” he did not mean “offend canons of decency and fairness held in foreign legal systems that are linguistically accessible to us.”47 In the past, jurists and statesmen have often referred to English-speaking peoples as a unique repository of wisdom and experience concerning liberal democracy. Not everybody buys this. Justice Hugo Black, in his concurrence in Rochin, asked, “Why should we consider only the notions of Englishspeaking peoples to determine what are immutable and fundamental principles of justice?”48 and Justice Scalia in Roper v. Simmons thought in that case that “the Court’s special reliance on the laws of the United Kingdom is perhaps the most indefensible part of its opinion,” given the abject way in which English has prostituted itself to non-Anglophone tradition in Europe.49 Still, the fact is that there is a long tradition of regarding the common-law world as having made a distinctive contribution to the theory and practice of free government, a contribution which any member of that world should feel free and proud to draw upon. If it extends now beyond the Commonwealth and the United States, many would say it is because of the recent influence of the common-law tradition on constitutionalism the world over. Apart from all that, we need to ask whether a reflexive reference to countries that are just like us is necessarily disreputable. Law grows in families, and clusters of legal systems with historic ties draw more readily and more easily on one another’s laws than legal systems whose development has followed different trajectories. We see a clear instance of this in the practice of Australian, New Zealand, and British courts’ drawing on each other’s precedents and doctrines in ways that are deep, pervasive, and sophisticated.

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The abstract idea of ius gentium I have pursued throughout this book talks of law in the world—a consensus among all the legal systems on the earth, each of them ruled partly by its own laws and partly by laws common to all mankind. Historically, however, this purported universalism grows in real time and on the basis of local, regional, and imperial affinity. The Roman lawyers who brought the idea of ius gentium to maturity knew little of the customs practiced in China or India and nothing of those practiced in the Americas, but they predicated the claims they made on its behalf on what they knew of the Mediterranean world. On that basis, slender, from a modern global perspective, but encompassing from their point of view, they developed juristic notions that could reach beyond their frame of reference. My point here is that an initially indexical or self-referential idea—law common to systems that are just like ours—has the capacity to open up to accommodate a wider and wider sphere of reference. It need not remain exclusively oriented to “folks like us.” The ability to see what is held in common among a familiar array of legal systems is the germ of the ability to see commonalities even among unfamiliar systems of law. This capacity marks the work of Francisco de Vitoria in the early sixteenth century, reflecting on the situation of Native Americans. What Vitoria did was to take the categories and principles of ius gentium that had been developed in the familiar European context and apply them as fairly as he could to Native American societies. He argued that Native American communities are entitled to govern themselves just as European communities are: our principles require us to say this, and they seem to recognize these principles too.50 And Native Americans are entitled to follow the religious ideas that appeal to them; they are not required by ius gentium to immediately accept what must have seemed to them the incredible fables about Jesus, resurrection, and so on that the Spanish missionaries were putting before them.51 No doubt there is a lot that is ethnocentric in Vitoria’s argument and other similar projections of ius gentium into the New World.52 The point here is not to congratulate our civilization on its tolerance and humanity but to note that a self-referential starting point does not preclude the possibility of projection into an unfamiliar environment and further learning and development there.

5. Growing Ius Gentium: Fits, Starts, and Clusters I consider ius gentium here as positive law. This means that, like all positive law, it comes into existence and grows and spreads in real historic time. There is no reason to suppose that this process is smooth or that it is evenly spread around the world. The circumstances and mechanisms that

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condition the growth of ius gentium are likely to be contingent and localized, and we have to envisage the possibility that laws common to a number of countries establish themselves as such initially on a regional basis before establishing themselves globally as world or universal law. As we saw in chapter 2, some legal philosophers have held a conception of ius gentium that is close to natural law. They will no doubt want to emphasize aspects of the human condition that make certain problems endemic and make it likely that the solutions adopted are taken from a range of standard solutions that, quite apart from the contingencies of time, place, and culture, seem to work for humans generally. Hart is famous for having suggested something along these lines, calling it “the minimum content of natural law”: Suppose that men were to become invulnerable to attack by each other, were clad perhaps like giant land crabs with an impenetrable carapace, and could extract the food they needed from the air by some internal chemical process. In such circumstances . . . rules forbidding the free use of violence and rules constituting the minimum form of property—with its rights and duties sufficient to enable food to grow and be retained until eaten—would not have the necessary nonarbitrary status which they have for us, constituted as we are in a world like ours. At present, and until such radical changes supervene, such rules are so fundamental that if a legal system did not have them there would be no point in having any other rules at all.53

In The Concept of Law, Hart refers to mutual vulnerability, approximate equality, limited altruism, moderately scarce resources, and limited understanding and strength of will as characteristics of the human condition that dictate certain standard similarities among the laws that are likely to evolve and be adopted among any society constituted by humans.54 These circumstances provide an elementary infrastructure for the commonality that grows into the ius gentium. But by themselves they probably do not take us very far in that direction. Culture, climate, and temper play an enormous role in differentiating societies’ adaptations to these circumstances, and, as Hart points out, the purposes men have for living in society are too conflicting and varying to make possible much extension of the argument that certain universal rules are necessary for every society.55 But the common human condition is not the only factor favoring the emergence of similar laws. There is also the fact of human curiosity.56 In almost every human society there are people, often among the more powerful and creative, who take an intense interest in the ways of life of societies present in the vicinity of their own. This is not just a precaution or a prelude to depredation, though it is true that when a society has to rely on

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trade for its subsistence and prosperity or when war or diplomacy require some general knowledge of what is going on in a whole region of the world, people begin to become experts in each other’s folkways.57 It is partly innate curiosity and partly a matter of vindicating or reinforcing some trend in local development or local politics. Mostly it is born of a sense that there are useful and profitable things to learn. It is a mistake to exaggerate the variability of culture. Of the practices, traditions, and technology we call culture in any society, an enormous proportion of it is shared or transmitted or imitated. From patterns on the sides of pots to metallurgy and monotheism, cultures learn from one another and adopt and adapt one another’s ways.58 And law is one of the things they learn. Curiosity is sometimes just a motive to collect information about customs and ways of doing things that seem bizarre and interesting to the collector. But the information collected is often more useful than entertaining: it suggests ways in which the home society may adapt itself and its rules; as well as ways of solving problems that all societies have faced, opening up an array of familiar alternatives to include those that have been pioneered in other societies. In the nature of things, this learning takes place unevenly in regions, as societies study their neighbors or those with whom they have most reason to interact. The same is true of the pressures for gaining knowledge of others’ laws that derive from the exigencies of intersocietal trade. As deals are struck across boundaries or along trade routes, people are confronted with commercial expectations that differ from their own. The pressure of commerce argues in favor of resolving these differences as quickly as possible in some set of common understandings of how to proceed with a transaction. And so, once again, awareness of difference doesn’t just pique our curiosity; it gives us a reason to bring our laws into conformity with others’ (or vice versa), at least those of our laws that impact our dealings with people from different legal traditions. Besides curiosity and commerce, a third dynamic at work here is conquest and colonization. A powerful society driven by ambition or economic necessity may conquer foreign lands or bring them under its suzerainty, and it may plant colonies abroad, settling its citizens on foreign shores. Conquest and suzerainty involve the imposition of an administrative apparatus on a society that until recently had its own laws. Depending on the mode of domination and the kind of extractive relation the dominant power has in mind, these laws may penetrate more or less deeply into the society being dominated, sometimes superseding local ways of doing things, sometimes supplementing them, sometimes just adding a veneer of conqueror’s law over a thriving indigenous jurisprudence. As for colonial

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settlement, the colonists will expect to be able to bring with them many of their own customs and laws, at least for administration among themselves, but inevitably also in their dealings with the other inhabitants of the lands they are colonizing. None of this particularly creditable to the colonizing power, but it happens. And it is one of the prime ways in which common laws are disseminated in a region. Even when conquest is not at issue, societies may take pains to bring their laws into regularity with one another in customs leagues and economic alliances. The European Union began in this way, but there are many earlier antecedents: the Hanseatic League of the late medieval and early modern era is the best-known example.59 Legal uniformity in certain spheres may be the upshot of the activity of nonstate entities that live and work beyond the boundaries of any particular political society. Harold Berman gives a fine account in Law and Revolution of the way in which “the new canon law” and the administrative structure of the papal curia constituted the first modern Western legal system in the eleventh to twelfth centuries.60 The system he describes was neither a state system nor a system of international law. It just grew up as a cosmopolitan entity, based in what seemed to be the capital of the civilized world.61 As such, it provided not only, Berman argues, a model for the growth of national legal systems, but also something to which systems of law that had a more cosmopolitan mode could be anchored. These are schematic explanations of how it might happen that a set of societies begin to be ruled partly by their own particular laws and partly by laws common to them all. The mechanisms overlap, but they don’t work in lock step: the reach of commerce may be greater than the reach of empire, and the reach of curiosity greater than both. What we will expect from these mechanisms, over centuries, is a ragged, regionalized sense of legal commonality, one not evenly spread across either the array of societies concerned or the topics addressed by their laws. We can add one other feature to this account of the growth of ius gentium. Law is not just a convenience for domination or commerce It is also an intellectual formation. In the coda to his book Whigs and Hunters the historian E. P. Thompson confronted some of the reductionism about law put about by his Marxist colleagues. Law, Thompson acknowledged, is certainly a way of sustaining power, but it is a particular way of doing that, one which has a life and logic of its own: “In the case of an ancient historical formation like the law, a discipline which requires years of exacting study to master, there will always be some men who actively believe in their own procedures and in the logic of justice. The law may be rhetoric, but it need

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not be empty rhetoric. Blackstone’s Commentaries represent an intellectual exercise far more rigorous than could have come from an apologist’s pen.”62 Thompson’s position has two consequences that are important for understanding the growth of ius gentium. First, it means that law as an articulate, self-conscious intellectual discipline is likely to reify and reflect on the commonalities that exist between the jurist’s own society and others around him. Commonality plus intellect begets the conscious identification of something like the law of nations. Over time, lawyers may find they have a greater sense of allegiance to the common part of this enterprise than to its local or parochial manifestations. The historian Jacques Verger offers this description of the work of universities in Europe in the medieval period. The universities, he said, were never just local institutions: They may have been located in a given city, but they were simultaneously institutions belonging to the whole of Christendom. Their range of recruitment was not limited by administrative or ecclesiastical boundaries but extended as far as their power of attraction, which in itself was solely determined by the influence of their teaching. Their freedoms and privileges, whose main purpose was to remove them from the control of the local authorities, were confirmed by the papacy, the universal power par excellence. The knowledge conveyed by the universities was itself conceived as universal knowledge, exempt from any particular locality, unique and valid in all of Christendom (which was demonstrated by the exclusive use of Latin). Consequently the degree conferred by the university was valid everywhere.63

A legal relativist might think that law must have stood somewhat apart from this universalism. But it did not. Verger’s description applied as much to the study of law at Bologna, Paris, and Oxford in the twelfth and thirteenth centuries as to the study of theology or natural philosophy. Learned doctors of jurisprudence didn’t think of themselves as learned in English law or French law or the law of some Italian city; they were learned in the law, which could be identified explicitly as something common to the way in which a whole array of independent and semi-independent political organizations were governed.64 The other consequence of law’s intellectual presence is legal evangelism. Lawyers might participate deliberately and self-consciously in the proliferation of legal ideas and in their transmission from one society to another. Here it is important to understand that jurisprudence does not necessarily stand aloof from other aspects of culture: it may be a vehicle for literary or religious ideals. And indeed, the work of the legal missionary

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might complement and accompany that of his more familiar religious counterpart. Modern positivists draw a sharp distinction between legal ideas, on the one hand, and morality and religion, on the other. But they do not deny that religious and moral ideals have had an influence on law: “The law of every modern state shows at a thousand points the influence of . . . wider moral ideals.”65 The proponents of universalist moral ideas may regard law as a natural mode of dissemination and influence: they will try to bring it about that every legal system embodies their universals. And if there is a body of law or legal thinking that presents itself as universal in its ambit— like ius gentium—it will be natural to appropriate that too as a vehicle for the promulgation of universal morality. And so we get the law of nations associated with the law of Christendom or Christian natural law or, in the modern era, ius gentium associated with the pursuit of human rights.66 In chapter 2 I resisted identifying ius gentium with international law. International law has developed in a way that is in many respects quite independent of the evolution of the idea of laws, administered in each country, that are common to all mankind. But the two are not unrelated. International law, especially in its origins, used the same idea of the acceptance of common standard by individual political communities to ground its sense of the emergence of standards binding all sovereigns. One has only to look at the early work done by Gentili and Hugo Grotius on the laws of war: they begin by looking at what individual makers of war do and on that basis they build up a set of norms that obtain in something like the form of international law.67 So there is a structural similarity. In addition, international law sometimes takes notice of what happens within particular states. This didn’t use to be part of its formal conception. In the heyday of international-law formalism, international law concerned only relations between sovereigns; the sovereigns’ subjects were treated like chattel or livestock so far as this formalism was concerned. But that has long since ceased to be the case. Human rights law is, formally speaking, international law; but it is intensely concerned with the standards that sovereigns administer domestically in their treatment of their subjects or citizens. So there is an overlap with ius gentium. And no doubt the growth of norms of this kind in international law has had a profound effect on the sense, crucial to ius gentium, of there being a set of common principles covering the way in which human individuals are treated within political communities. In the modern world of human rights and the laws of war, we are talking about the influence of international law that is more or less universal. But international law itself grew in fits and starts. Sometimes it was the law of a set of European or Christian sovereigns; it was only

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grudgingly extended to apply to other states. And its impact on ius gentium, as I understand it, has been similarly uneven. In general, for all the processes I have outlined in this section, the impact on the growth of ius gentium has been sporadic, contingent, and often regionally concentrated. Pockets of ius gentium or something like it develop in particular regions or among clusters of states; and sometimes these pockets expand or are superseded by senses of commonality that originate in other ways. We have to bear this historical untidiness in mind when we consider the abstract possibilities of “something less than 100 percent consensus” discussed at the beginning of this chapter. Those who are anxious to discredit ius gentium or the influence of foreign law in the American legal system will no doubt attack all such ideas and say, “Aha! There is not really any universal consensus after all. There are just pockets of adherence to common principles here and there, and liberal judges in America pick and choose among them to serve their subjective purposes.” It is an easy line to take. It does not dispose of cases like the juvenile death penalty, where we can cite a universal consensus. But even when we can’t or don’t, the question is always about the bearing of the normative considerations I set out in chapters 4 and 5. What I called the retail use of foreign law is untouched by these concerns. It doesn’t alter the value of learning from one or two foreign jurisdictions that many other foreign jurisdictions may not be able to teach us the same lesson. And harmonization may be valuable in particular binary relations among states or in clusters of states—trading partners, for example, or near neighbors, or those who share extradition arrangements. I believe the ius gentium idea remains valuable even when we consider that ius gentium is a work in progress that develops in fits and starts in the world. The common legal heritage of humankind may grow unevenly and hesitantly. Sometimes we will say that a principle is so settled among such a substantial proportion of legal systems as to justify jurists’ regarding it as a principle of universal law even if there are a few outliers. Whether this is a sensible way to regard it will depend on several things: the standing of the legal systems comprised in the relevant consensus and also the number, the standing, and the influence of whatever outliers there are. It will depend also on the relation of the relevant principle to other principles that are more firmly established as part of the ius gentium. There is no litmus test to apply here, any more than there is for principles generally in a legal system; it is a matter of judgment and discernment.68 And this indeterminacy is bound to be reflected in the weight that is accorded a principle that is regarded as part of ius gentium. No such principle has the weight of a legal rule; their weight

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varies; and the extent and nature of the consensus that supports it will surely be one factor in that variation. In some cases, the fact of a lessthan-complete consensus may diminish the power of a principle; indeed, in some cases it may undermine it altogether. Consider, for example, the principle that death is not to be used as a legal punishment. I will call this the anti–death principle. The majority of countries in the world now accept the anti–death principle and have established it in their laws. But the outliers, those who retain capital punishment, are significant in their size and (in the case of America) their influence. They include the four most populous countries in the world (China, India, the United States, and Indonesia), which means that more than half of the world’s population is ruled under a death penalty regime. Moreover, the United States is not the only advanced democracy in the group of death penalty outliers: Japan also has the death penalty and, among other developed nations, so do Singapore, Taiwan, and South Korea. Any claim, then, that the anti–death principle is part of the established ius gentium is likely to be unconvincing. The distinction in this regard between the anti–death principle and the principle prohibiting the juvenile death penalty, which may plausibly be regarded as part of the ius gentium, is notable. In both cases the United States is an outlier: so what is the difference? One point is that on the juvenile death penalty, the United States was a sole outlier, whereas there are at least eighteen countries in the world where the death penalty itself is retained. Another point—one I discussed in chapter 3—is that rejection of the juvenile death penalty fits into a structure of existing principles, already well established in the world, in a way that the anti–death principle does not. Unlike the anti–death principle, the principle prohibiting the juvenile death penalty can be seen as an integrated part of the ius gentium. Moreover, attempts to connect the anti–death penalty with other principles of the ius gentium have not been decisively successful. The ECtHR still demurs from regarding the death penalty as inherently “inhuman and degrading,” even though a protocol to the ECHR requires states to abolish it, at least during peacetime.69 In South Africa in 1995 the Constitutional Court did hold that the death penalty is inhuman and degrading and an affront to human dignity, but its judgment was predicated partly on the specific history and circumstances of South Africa and its recent emergence from apartheid, in which the death penalty had been used as a tool of racial oppression.70 So it is not plausible at the present time to regard the anti–death principle as part of the ius gentium. But this might change and arguably is changing. There are regions of the world where rejection of the death

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penalty seems to be part of something like a small-scale version of the ius gentium: this is true in Europe, for example, where membership in the Council of Europe is now restricted to countries that do not have the death penalty. For European countries, this principle is one of the laws partly common to them all by which individual countries are governed. And clearly there is an aspiration in Europe to project this limited consensus out into the world and bring about a situation in due course in which the death penalty is anathema in all advanced democracies, not just European ones. The trajectory seems to be toward abolition, but whatever normative force it has at the moment outside Europe cannot be regarded as the normative force of the law of nations. What we are seeing is a possible stage in the growth of ius gentium on this matter and an illustration of how patchy and uneven such growth can be.

6. A Pervasive Pattern Among Legal Civilizations? The statement in the Institutes that I have been using as a motto makes two universal claims: one about how every community ruled by law is governed and another about the commonness to humankind of some of the laws by which every community is governed. So it might be false in two ways: because not every community is governed in this dual way or because the common component used by most or all communities is not truly universal. I have examined the second sort of falsification and asked how much it matters. But what about the first? Are there not some societies that subsist on the basis of their own endogenous laws and pay no attention to laws beyond their shores? One might think of what used to be called primitive legal systems in this way, societies that organize their affairs according to their own endogenous customs, without any awareness of or curiosity about what other societies do.71 The only commonality between these societies and the more dynamic systems I have described would be a modicum of elemental similarity based on Hart’s “minimum content of natural law.” Anthropologists and philosophers with a culturalist axe to grind sometimes exaggerate the self-contained purity of these systems. Usually it is a matter of geographic isolation. In all other circumstances, societies that can learn from others, do. And when a society’s isolation is ended—as when six or seven hundred years of isolation from the rest of the world was ended for Maori communities by the arrival of European explorers in what is now called New Zealand—natural curiosity quickly reasserts itself.

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Second, there might be communities that, though in contact with other countries, deliberately shut themselves off from outside influence: a North Korean model. We probably cannot say of that country that it is ruled partly by its own laws and partly by laws common to all mankind. In other cases, however, the appearance of cutting oneself off legally from the rest of the world is largely a gesture and a futile one at that. In some cases—as in the resolutions of some of the U.S. congressmen I mentioned in chapter 1—it is hard to believe that even the gesture’s proponents take it seriously. The massive interconnectedness of the American legal system along all sorts of dimensions with the legal systems of other advanced democracies is an incontrovertible and largely irreversible fact, whatever happens in the gestural politics of the post–Roper v. Simmons era. In any case, sometimes when countries close themselves off from others’ legal ideas, they do so in the company of like-minded societies. And in that company they reproduce among themselves a limited version of ius gentium. During the Cold War, for example, communist countries in Eastern and Central Europe proclaimed themselves subject to a jurisprudence that stood apart from the laws of the rest of the world. Czechoslovakia, East Germany, Hungary, the Soviet Union, Poland, and even Yugoslavia were each governed partly by their own national laws. But they were also governed partly by laws common, not to all humankind, but to the Soviet-dominated communist bloc. They thought of themselves as ruled partly under the auspices of “socialist legality,” an abstract heritage that they could all draw on to supplement and make sense of their particular national laws.72 It is a complicated example, for several reasons. First, it is not clear how far these countries were really independent of one another: their common adherence to socialist legality might be just a token of their common subjection to the power of the Soviet Union. But I have not tried to pretend in this book that ius gentium has any more respectable historic pedigree than this. It, too, is the product of empire, successive and overlapping waves of empire, from Rome through the Holy Roman Empire of medieval and early modern Europe to the Napoleonic empire and its legal heritage, not to mention the colonial enterprises of Spain, Holland, and Portugal, culminating in the British Empire and its American and Commonwealth offspring. Second, it would be wrong to exaggerate either the difference between socialist legality and Western ius gentium or their isolation from one another. In brief, Stalin’s adoption of socialist legality in the 1930s, a largely cynical act, was supposed to mimic in a communist context some of the common standards of legality in the rest of the world.73 Certainly after the

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Second World War the communist countries were members of the wider international community and signatories to many important human rights conventions. I don’t mean they were always members in good standing. But they did sometimes take legality-in-the-world as a common point of reference. Whatever socialist equivalent of ius gentium they had among themselves was complemented by and overlapped with their undoubtedly ambivalent participation in the wider ius gentium of which I have been speaking. I believe the situation of Islamic legal systems can be understood in a similar way, although this is much more difficult to phrase.74 It is tempting to say that Islam is a separate civilization, and so we cannot assume Islamic jurisprudence will necessarily participate in the legal heritage of a different civilization, one arising out of what was formerly Christian Europe. But the Islamists have a common heritage nevertheless among themselves, shared across the Muslim nations of the earth, from Morocco to Indonesia. This common heritage would be shari’a, biblical law based on the Quran and the writings of Muslim jurists that have been accumulated over the past thousand years of Islam’s growth. Carl Schmitt once remarked that “besides a ius inter gentes there is a common law which transcends the borders of the gentes, peoples or States: a common constitutional standard or common religious or civilizational views and conceptions, the ius gentium of those who belong to the same legal orbis.”75 On this view, different civilizations, different legal worlds must be expected to have their own ius gentium (if they have any use for that idea at all). So we have the Roman-derived ius gentium and the heritage of ius commune developed in Europe and then in the common-law world of the British Empire and the United States; the Communists had socialist legality; and the Muslims have the common heritage of shari’a. On this model, there are several manifestations of the ius gentium idea, each of which aspires to global universality: ours certainly does, and so did socialist legality in its heyday and so, I am told, does shari’a. I am not entirely happy with this picture, however, and certainly most modern Islamic jurists would want to take issue with a number of its features. In the case of socialist legality, I noted that for all the proclaimed self-sufficiency of the communist legal world there was considerable overlap between the legal ideas of East and West. And for all their hostility to one another, the members of the Eastern and Western blocs did participate as members of the same international community, engaged in trade with one another, and signed (and sometimes upheld) the same human rights covenants. Analogous points have been made about Islam. One writer remarks,

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“The methods adopted by Muslim jurists are so similar to those of Roman jurists and the whole of Islamic law is so like the secularized, rationalized Roman law of Justinian’s Corpus Juris Civilis, in which the rules of ius gentium predominate, that it has been said that ‘Muhammedan law is but the Roman law of Justinian in Arab dress.’ ”76 I do not want to associate myself with a position that strong. However, substantial similarities and overlaps may exist between what I have been calling the ius gentium and the body of legal principles common to Islamic legal systems, especially if we distinguish between the underlying legal ideology (shari’a as derived from the Quran and elaborated by canonical jurists) and Islamic law as it is actually applied in Muslim countries.77 We must compare like with like: and just as Western ius gentium is not identical with either Thomas Aquinas’s natural law or divine law as supposedly revealed in the Bible, so the common elements among Muslim legal systems are not identical with what one can find in the Quran or with the classic teachings of Islamic jurisprudence. Ius gentium is an extrapolation from the earthly reality of positive law as it is actually applied, not just an extension of moral or religious ideology. Everything one says on this matter is liable to irritate Islamic jurists. Some will insist that there is nothing in Islam equivalent to the plurality of national or municipal legal systems in the West from whose practices ius gentium is supposed to be extrapolated. There is just one great community in the world of believers, and outside that, only infidels and apostates: “Islam’s radical universalism almost inevitably opposed it to any suggestion that mankind could exist in anything other than a juridical unity.”78 This belief has affected Islamic attitudes in regard to what we call international law, and it has affected attitudes in regard to the apparent plurality of Islamic states (Afghanistan, Egypt, Indonesia, Iran, Iraq, Jordan, Libya, Morocco, Pakistan, Saudi Arabia, Syria, Yemen, and so on.) Classical Islam regards the separation of these independent communities from one another as quite illegitimate. Some observers therefore talk of a crisis in Islamic political and legal doctrine, a crisis that “has lingered since the initial fragmentation and decentralization of the Islamic State.”79 This crisis has “greatly undermined the ability of Islamic jurisprudence to come to terms with the fragmentation of the dar al-Islam.”80 There seems to be a divide between those Muslim legal scholars who simply retreat to the ivory tower of the study of classical Islamic jurisprudence and those who compromise their purity by trying to describe the real-world situation of law and legal commonalities in and among actually existing Islamic states.

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The latter have noted a number of common principles emerging among Islamic nations that deal with constitutional matters and the application and reform of classic family law.81 There appears to be a sense of a common heritage of thinking on both of these matters, which any Islamic statesman can learn from, as well as a strong sense of the need for some harmonization in the direction that modern Islamic states are taking. So the patterns that I have been discussing in regard to ius gentium seem to be reproduced, at least to some extent, among Islamic states. As Islamic reform movements grow in politics and jurisprudence, we will need to look for ways in which a common heritage develops between the two types of system. In observing the emergence of something like a ius gentium among Muslim nations, however limited, and in identifying commonalities between that ius gentium and Western ius gentium that might justify us in talking about the ius gentium,—we have no choice but to burrow beneath the veneer of jurisprudential difference that particular legal civilizations throw up, to open up their categories, and to look at actual, as opposed to ideologically posited, commonalities and differences. There is a connected debate about whether there exists an Islamic law of nations in the sense of international law. Fortunately, I do not have to get into questions about the precise status and understanding of the Siyar and the other classic sources for determining the appropriate way for a follower of Islam to deal with infidels and apostates.82 I do not have to consider the analogies or the similarities. But the case of the Siyar is likely to be analogous to the case of shari’a. If one concentrates only on the canonical writings, one will see massive disparities between the Islamic law of nations and the Western law of nations (respectively in both senses of “the law of nations”).83 But if one concentrates, as some do, on actual legal practice among states whose law embodies a substantial Islamic component, and also on actual legal practice between Islamic states and states whose law is “Western,” one will see much similarity and overlap. In many areas it will make sense to regard all these states and legal systems as part of the same system of ius gentium, again, both in the sense of international law and in the sense of commonalities in municipal law.

7. Pressures for Divergence It would be wrong to end this story without some account of the pressures that have led to dissensus and divergence in each legal civilization and among the legal systems of the world. Legal dissensus is of course quite

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compatible with the model I have been using: each society ruled by law, I have said, uses partly laws common to all mankind, but also partly laws that are of its own production, tailored for its own special circumstances. As a partial notion, ius gentium is not embarrassed by differences between legal systems, though it would be embarrassed if they loomed so large as to crowd out the common principles that ius gentium comprises. One set of pressures for divergence stems from the desire to remain true to the customs and folkways of one’s society, inasmuch as these are embodied in law. In the early nineteenth century Frederick Charles von Savigny stood for the position that the law of a society is a historical emanation of the spirit of its people. This is like an application of Johann Gottfried Herder’s ideas about culture to jurisprudence.84 As William Ewald describes it, Savigny’s view was that law dwells among a people “like their folk songs, their myths, their language.”85 Savigny was convinced of the “organic connection of law with the being and character of the people.”86 A people’s law embodies common convictions of right that have grown up among them since prehistoric times: “They are the particular faculties and tendencies of an individual people” and the result of “internal silently-operating powers” working within them.87 From this point of view there was something futile, even offensive, about trying to introduce into this milieu ideas from elsewhere that sought to rationalize the miasma of the Volksgeist.88 Jurists had “the ‘holy duty’ of maintaining a lively connection between a nation’s present and its primitive state; to lose this connection will deprive the people of the best part of their spiritual life.”89 Savigny is not really a household name in American constitutional scholarship.90 But views like his have sometimes been expressed in the foreign law debate. Sarah Harding, for example, writes, “Legal systems reflect the cultures within which they are situated and thus have unique and highly contingent identities. . . . Given this close connection between law and local culture, foreign law seems to have very little place in judicial reasoning.”91 And long before the modern debate erupted, Edwin Patterson made this observation: As to the law of the popular spirit, [Savigny] was right in believing that each nation has some peculiarities of custom and attitude which cannot be learned from their written codes or treatises or even wholly from their judicial decisions. . . . As a legal sociologist one must recognize in most countries an emotional attachment to long-established traditions not only among lawyers and officials but also among laymen. In so far as this emotional attachment is a means to security and is in itself a source of happiness, it is a good which the legal philosopher must weigh against the

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competing goods, if any, promised by specific departures from traditional ways.

Paterson argues that the “core of truth in the Volksgeist theory” is revealed in a comparison of English and American attitudes toward law itself: The English are more precise in their transactions, more conscious of legal implications, and more meticulous both in exacting and fulfilling legal duties. In the United States an amorphous “fairness,” partly based on routine, is the primary criterion in everyday conduct, with the law as a refuge to which a “good sport” should not resort. These national characteristics, which give individuality to a people, constitute serious obstacles at present to the adoption and usefulness of a world code of laws for all nations.92

Others have cited cultural differences on free speech issues as between the United States, on the one hand, and Canada and the European countries, on the other: the bracing vigor of the argumentative American temperament, for example, which resents any imposition of regulation on what one say, and the more culturally sensitive communitarianism of the non-American peoples.93 This is not just a matter of greater toleration for political correctness. It can be seen as reflecting real differences in basic temperament and mores. Something similar is also said about attitudes toward human dignity: Like all abstract values, human dignity will draw meaning from the ground in which it is planted. Constitutions are necessarily a product of various cultural and historic differences that reflect society’s most significant legal and social commitments. In particular, Americans have different intuitions even from our close European counterparts about the protection of important rights. “We have intuitions that are shaped by the prevailing legal and social values of the societies in which we live . . . intuitions that reflect our knowledge of, and commitment to, the basic legal values of our culture.” These intuitions are based on deep-rooted cultural differences.94

I have heard it said that this is the basis of Justice Scalia’s view on the inappropriateness of using foreign law. Scalia is supposed to have adopted a sort of identity politics: “Scalia the judge roots himself in an America whose values he purports to be able to identify. If the job of the judge is to identify and then apply these distinctive values, why would it be relevant to study how other cultures approach similar questions? To learn that Orthodox Jews put hats on when entering their holy places is

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totally and utterly irrelevant with regard to what counts as acceptable ‘hat behavior’ when entering Catholic churches.”95 I doubt very much whether this is an accurate representation of Justice Scalia’s position. I think his position has more to do with the formalities of originalism than with the mysteries of culture. In any case, we need to be very careful with this way of characterizing things. “Culture” is an accordion term and can be expanded or contracted to suit the use that is being made of it. Some aspects of American exceptionalism may reflect deep-seated features of our national psyche along the lines of Savigny’s account of nativism in early nineteenth-century Germany. But it is unlikely that this is an adequate explanation, if only because America has never had the national homogeneity, racial or ethnic, that Savigny’s account presupposes. Furthermore, our exceptionalism on matters of dignity, hate speech, the death penalty, and so on is a matter of vigorous debate within American culture, which hardly supports the view that it reflects a welling up of “internal silently-operating powers” within the American people. Having an explanation in political sociology about why a given view happens to prevail in the United States is not the same as saying, as Savigny does, that it is an “organic connection of law with the being and character of the people.”96 Or at least it is not the same for the purposes of my argument, for it does not follow that any attempt to change this view would be futile or that it would wreak havoc in our sense of ourselves. One need only consider the immense changes that have been made in racial matters, themselves supposed to be deeply and organically rooted in the psyche and culture of at least a portion of the country, to see how unconvincing and, in the end, mischievous this line of argument is. Though Savigny’s work represents the high-water mark of legal nativism, it is interesting that he himself qualified his position on legal isolation. He knew perfectly well that there was bound to be influence back and forth between one country’s laws and another’s: “As the religion of nations is not peculiarly their own, and their literature is as little free from the most powerful external influence,—upon the same principle, their having also a foreign and general system of law does not appear unnatural.”97 Moreover, Savigny believed that culturalist isolation was impossible after a certain level of legal development: “After legal development has reached a certain stage of complexity, the law no longer resides in the consciousness of the people tout entier, but rather in the consciousness of professional jurists: the Volksgeist is no longer lodged in the Volk, but in a scholarly elite.”98 (We saw something of this approach when I mentioned Savigny, in the company of Max Weber, on legal technicality in chapter 3.) For him, it was a matter of balance, the

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jurist taking responsibility for managing the delicate relation between the nativist foundations of a country’s legal tradition and the inevitable impact of foreign codes and jurisprudential ideas. That is more in keeping with the tenor of the model used in this book, which, as I have emphasized, does not expect each country’s legal system to be overwhelmed by foreign law but looks for some complementarity between foreign and native elements: partly its own laws and partly laws common to all mankind. Can one say anything in the abstract about how that complementarity works? One suggestion is that it might be understood on the model of the Dworkinian distinction between abstract concepts and concrete conceptions. If so, then nothing very significant will flow from what various countries hold in common: the common element will be too abstract to do much legal work. James Allan and Grant Huscroft say that the diversity of rights conceptions among nations should not come as any surprise “given the inherent contestability of rights and the way in which understandings are shaped by culture and history”: Indeed, concepts like freedom of speech and equality are embraced by so many because commitment to them requires so little consensus as to detail. Agreement at the level of moral abstraction allows widespread disagreement and dissensus down at the level of drawing difficult social policy lines to be finessed. Hence any country might cherish these rights and regard them as fundamental, all the while affording them a different degree of protection. That is just the nature of rights: they are proclaimed at the level of abstract, indeterminate generalities to which all, or nearly all, can assent.99

The implication seems to be that even if it makes sense to invoke a foreign consensus to bolster our use of abstract slogans like dignity, equality, and free speech, it makes little sense to invoke foreign law in the detailed elaboration of these rights because that is a task for the culture and history of each nation. I have nothing against this emphasis on the diversity of rights conceptions and the extent of disagreement within each country and sometimes between countries as to how abstract rights are to be conceived.100 But I see no reason to map that distinction onto the complementarity between laws common to all mankind and a country’s own particular laws. In both cases, it is important to attend to matters of detail. And at the national level, countries may need more guidance from the outside, rather than less, in thinking through the issues that arise when we move from an abstract formulation to a detailed conception of rights. Forming a concrete conception of a shared abstract concept is not something that just wells up from the national consciousness. Equally, it is often

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in issues of detail that harmonization becomes important. It may be difficult given the diversity of rights conceptions, but attention needs to be paid to other countries’ formulations nonetheless. Another version of this view, one which maps abstract principles onto laws common to all humankind but reserves a national prerogative for detailed conceptions, can be found in the recent writings of an English judge, Lord Hoffman. In an address delivered to the Common Law Bar Association in 1998 at the time of the passage of Britain’s Human Rights Act, Lord Hoffman said some things that were intended to criticize and resist the Europeanization of British rights jurisprudence. He said, “We . . . have our own hierarchy of moral values, our own culturally-determined sense of what is fair and unfair, and I think it would be wrong to submerge this under a pan-European jurisprudence of human rights.”101 He didn’t mean that Englishmen believe in different rights. He agreed there was an “irreducible minimum” of rights shared in the world (or, at any rate, in Europe). But beyond that, he said, each country was on its own: “Voltaire said that morality was the same in all civilised nations. This is a half truth; of course we share a common humanity and there are some forms of behaviour such as torture which we all either reject or are unwilling to acknowledge. . . . Of course, I applaud the patient efforts of the human rights movement since the Second World War to promote the acceptance of basic human rights throughout the world. . . . Nevertheless, I say that Voltaire’s remark was only half true and that in a confident democracy such as the United Kingdom the other half is important.”102 The gist of Lord Hoffman’s position seems to be that even if our basic beliefs about rights are the same, difficult questions of balance have to be determined according to the cultural predilections of each society: The problem about the hierarchy of rights is not the conflict between good and evil but the conflict between good and good. Free speech is a good thing; justice is a good thing, but there are cases in which free speech and justice come into conflict with each other. For example, the law that preserves the anonymity of rape victims is an infringement of the freedom of the press, but it assists justice by encouraging women to make complaints against rapists. How then are these two desirable objectives— free speech and justice—to be reconciled with each other? There is no right answer to that question; any choice involves some degree of sacrifice. But in my view, the specific answers, the degree to which weight is given to one desirable objective rather than another, will be culturally determined. Different communities will, through their legislatures and judges, adopt the answers which they think suit them.103

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The implication seems to be that allowing British courts to be influenced in these delicate judgments by what Justice Scalia would call “the disapproving views of foreigners” is to unacceptably pollute what are essentially the contingent cultural judgments of one community with those of another. I do not accept that at all. I think we are deploying reason as much when we balance one right against another or make the delicate, convoluted judgments about rights that, as we have seen, are needed in cases like Hopkinson v. Police and President of the Republic v. Hugo, as we are when we decide in grosser terms what is the core irreducible minimum of rights that everybody has. Reason is involved in the general question, and reason is involved at least as much and probably more in these complicated particular questions. When I read Justice France figuring her way through Hopkinson or Justice Goldstone figuring his way through the tangle of issues in Hugo, I do not get a sense of different cultures simply yielding different answers or of the judges casting around to find which answers suit the native ethos of their people. The sense I get is that these judges believed there was something to figure out and that they welcomed the opportunity to do that figuring in terms of concepts, principles, and doctrines available to them as part of the legal heritage of mankind. Isaiah Berlin has a lot to answer for. He managed to convince a lot of smart people that because there are genuine trade-offs to be made among a plurality of values and because there is no guarantee that the various values we treasure fit neatly into a single rational, preordained scheme, we should therefore eschew the idea of reason when it comes to figuring how the tangled priorities of our values play out in difficult individual cases.104 (He made us all think that anyone who said the contrary was some sort of totalitarian.) And so you have Lord Hoffman saying that the difficult questions that had always seemed to be exactly the domain of legal reason were in fact now the domain of cultural preference: “The specific answers, the degree to which weight is given to one desirable objective rather than another, will be culturally determined.” They are not in the domain of reasoned argument, in which we might reasonably expect some help from others. If what Hoffman means is that reasonable people may give different answers to these tangled riddles of value, I am sure he is right. But we don’t need to abandon the idea that these are issues of reason just because the reasoning of one person doesn’t yield the same results as the reasoning of another. Both people may see the difference between figuring through the issue quickly and doing so carefully; both may see the relevance of logic and information; both may see the importance of the methodology that law has always made available: ways of analyzing problems, so that distinct strands

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of principle are separated and then reconstructed alongside one another in an ordered fashion. They may still come out with different results. And judges citing foreign law or the ius gentium may still come out with different results when they apply what they have learned to the case in front of them. Humans with all the resources that law makes available to reason my come out with different results. But that is not a reason for putting legal knowledge or legal principle or legal doctrines aside, or for saying that we might as well forget about the laws common to all mankind and concentrate merely on the rules and texts and choices that define our particularity.

8. Laboratories and Experiments I would like to finish by discussing a quite different kind of pressure for divergence in law, one that, in my view, is intellectually much more respectable. When I developed my analogy between law and science, I focused mostly on the process of consensus building whereby the world community of scientists check and recheck each other’s work and develop a common sense of where humans are in their understanding of various physical phenomena. All that is very important. But no progress can be made in science unless particular laboratories are willing to venture out and frame “new conjectures and daring hypotheses,”105 some within the framework of existing paradigms and some challenging them. Unless new experiments are attempted and unless individual scientists and their laboratories have the confidence to undertake and persevere with them until they get some results to present to the rest of the world, scientific progress will be impossible. I cautioned in chapter 4 against identifying legal method with scientific method, but I am willing to acknowledge something similar in the case of law. Consensus may be valuable, in itself or instrumentally, but we don’t want to remain forever mired in a static consensus, because that way no progress is made. (And we know that no consensus is self-certifying so far as the values like the pursuit of justice and the vindication of fundamental rights are concerned.) So we should take care not to stifle legal experiments at birth or repress “new conjectures and daring hypotheses” in law by insisting too early on the claims of global consensus. From time to time, global consensus, if it is to retain its health and vigor, needs to be challenged. After all, the consensus itself did not come into existence by magic. It got established because of contingent events in the making and elaboration of positive law in various countries. We have to leave room for that to happen if we are not to dramatically diminish and deaden the sources of legal knowledge.

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A defense of legal plurality along these lines and a corresponding limitation on the claims of consensus is quite often heard in the context of American federalism. We leave the states free to experiment with various kinds of legal regime in various areas so that the rest of the nation can learn from their experience. To quote a well-known saying of Justice Louis Brandeis, “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”106 We don’t try to stifle that experimentation by insisting prematurely on the need for a federal consensus. And we criticize those who do.107 Can something similar be said to rebut the intrusive uniformity of world law? One or two opponents of the decision in Roper v. Simmons made a claim of that sort. They said that Americans have a unique approach to human rights that the rest of the world might want to watch and learn from. In the area of the death penalty, we are experimenting with the practice of leaving death penalty judgments to juries rather than laying down general rules. Missouri’s approach to the juvenile death penalty was of that kind. And, they would say, it is worth it for the rest of the world to watch and see how that works rather than simply suppressing the experiment in the interests of premature global consensus. That, I think, would be an honorable argument to make. But it is not what was said in most of the criticism of the Court’s use of foreign law. Most of that criticism just said peremptorily that this was a purely American matter and none of the world’s business. So I end on a rather inconclusive note, which is to be expected on a subject of this difficulty. The best arguments for and against the use of foreign law are complicated, and sometimes we have to dig beneath the platitudes that are wheeled out on the one side and the xenophobic slogans that are trumpeted on the other, to find where the true arguments lie. Often you can’t see where the arguments on one side lie until you have constructed the best case that can be made for the opposition. That is why this has had to be such a long, complex discussion. I mentioned in chapter 1 an admonition to philosophers made by Robert Nozick against presenting one’s work as though it were the final word on the subject and as though it made a cast-iron case, proof—thank God—against every objection. “We are all,” said Nozick, “actually much more modest than that. . . . Having thought long and hard about the view he proposes, a philosopher has a reasonably good idea about its weak points; the places where great intellectual weight is placed upon something perhaps too fragile to bear it, the places where the unraveling of the view might begin, the

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unprobed assumptions he feels uneasy about.”108 That is my feeling as I end this book. Still, one can be helpful without pinning everything down, and one can be suggestive without having constructed an unassailable monolith. There are things to be said on all sides of this issue. We don’t want to lose touch with law in the rest of the world, for there is much to learn, and, whether we like it or not, we are part of a larger community. At the same time, we want to own our law and develop it among ourselves, through political and judicial processes in which we, the people of this country, participate and by which we and our opinions are respected. So we have to learn to make our claims about the usefulness of foreign law modest rather than allconsuming. This book is supposed to help us think about those compromises. In my story there are no blue helmets on the Mall in Washington, no aspiration to a single world government. There is just complexity and commonality. And so here at the end the moral of the story is the one I began with: All peoples ruled by law use partly their own laws and also, and most definitely, partly laws common to all mankind.

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Notes

Chapter One. Simply the Law 1. Roper v. Simmons, 543 U.S. 551 (2004). 2. The circumstances of the murder in Roper v. Simmons are consigned here to a note only because they are not directly relevant to my argument in this chapter. It is important for us to appreciate why the State of Missouri and the dissenters on the U.S. Supreme Court thought it wrong to adopt a rule that peremptorily forbade capital punishment for all crimes committed by juveniles. The following summary of facts is taken from the Opinion of the Court and from Justice O’Connor’s dissent in Roper, 556–60, 600–601 and from the summary of facts at an earlier stage in State v. Simmons, 944 S.W.2d 165 Mo., 1997, 169–71. In September 1993 Christopher Simmons, who was then seventeen years old, and some friends broke into a house belonging to a forty-six-year-old woman named Shirley Crook. When she awoke and recognized him, Simmons decided they would kill her following a plan he had boasted about a few days earlier. He had assured his friends that their status as juveniles would allow them to “get away with it.” Simmons bound her hands behind her back with duct tape and also taped Crook’s eyes and mouth shut. He and his friends then drove her to a railroad trestle that spanned the Meramec River in Castlewood State Park in St. Louis County, Missouri. When they got there they found that Crook had struggled to remove some of her bonds. They then covered her face completely with duct tape and bound her hands and feet together with electrical cable. Simmons then pushed Shirley Crook off the railroad trestle into the river forty feet below. At the time she fell, Crook was alive and conscious. Blind, bound, and gagged, she drowned, unable to cry for help or swim to freedom. Simmons was quickly arrested, and he confessed to the killing. He was eighteen by the time his case came to trial. Missouri law at that time did not forbid the imposition of the death penalty on people for crimes they committed when they were juveniles. Instead it left the matter to juries, to be decided on a case-by-case basis. The jury in State v. Simmons convicted him and imposed the death penalty. Simmons appealed on the ground that execution for a crime he committed when he was a minor would be cruel and unusual punishment. His argument was that since minors are on the whole less mature than adults, they are less culpable for the offenses they commit; and since Eighth Amendment jurisprudence requires the states to reserve the death penalty for the most heinous offenders, it should not be applied to people in this category. The Missouri Supreme Court accepted that 225

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argument and overturned the death penalty, substituting life imprisonment without parole. The state appealed this decision to the Supreme Court of the United States. 3. Roper, 578 (Kennedy J., for the Court). 4. Ibid., 575 (Kennedy J., for the Court). 5. Ibid., 575, 578 (Kennedy J., for the Court). 6. See the transcript of the confirmation hearings in the Washington Post, September 13, 2005. 7. See Justinian’s Institutes, 37 (bk. I, chap. ii). 8. Cf. the observations on the freedom of a child born to a condemned woman in Shakespeare, The Winter’s Tale II, ii, l. 33: “This child was prisoner to the womb and is / By law and process of great nature thence / Freed and enfranchised, not a party to / The anger of the king nor guilty of, / If any be, the trespass of the queen.” 9. See the discussion in section 4, below. 10. Borzou Daragahi and Becky Lee Katz, “Iran Says Woman will not be Stoned to Death” Baltimore Sun, July 10, 2010, 12A. 11. This position was held by Savigny, Herder, and others. See, for example, Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence, 27. 12. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). 13. Cf. the excellent comment in the preface to Nozick, Anarchy State and Utopia, xi, concerning what Nozick calls the usual way of doing philosophy: “Works of philosophy are written as though their authors believe them to be the absolutely final word on their subject. But it’s not, surely, that each philosopher thinks that he finally, thank God, has found the truth and built an impregnable fortress around it. We are all actually much more modest than that. For good reason. Having thought long and hard about the view he proposes, a philosopher has a reasonably good idea about its weak points; the places where great intellectual weight is placed upon something perhaps too fragile to bear it, the places where the unraveling of the view might begin, the unprobed assumptions he feels uneasy about.” 14. That seemed to be Justice O’Connor’s position. Though she dissented from the holding in Roper, she said at 604–5 that it was not inappropriate to appeal to foreign law: “Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency. . . . This inquiry reflects the special character of the Eighth Amendment, which, as the Court has long held, draws its meaning directly from the maturing values of civilized society. Obviously, American law is distinctive in many respects, not least where the specific provisions of our Constitution and the history of its exposition so dictate. . . . But this Nation’s evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement—expressed in international law or in the domestic laws of individual countries—that a particular form of punishment is inconsistent with fundamental human rights.” 15. Lawrence v. Texas, 539 U.S. 558 (2002). 16. See ibid., 572–73, citing the United Kingdom’s Sexual Offences Act 1967, § 1 and the decision in Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981). 17. Lawrence, 576 (2002). (Kennedy J., for the Court).

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18. See also Washington v. Glucksberg, 521 U.S. 702, 710, 730, 732, and 734–35 (1997), surveying other nations’ laws regarding assisted suicide, particularly the experience in the Netherlands. 19. Roper, 576 (Kennedy J., for the Court) 20. Ibid. 21. Unless, as Justice Scalia acerbically noted in his dissent, “the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States” (ibid., 622). 22. Amnesty International, The Exclusion of Child Offenders from the Death Penalty under General International Law, 10. 23. “Brief of Amici Curiae President James Earl Carter, Jr., President Frederik Willem De Klerk, President Mikhail Sergeyevich Gorbachev, . . . Amnesty international, . . ., in Support of Respondent,” Roper v. Simmons, 2004 WL 1636446. 24. See, e.g., Tony Mauro, “U.S. Supreme Court vs. the World,” USA Today, June 20, 2005, 15a: “In landmark rulings upholding affirmative action, supporting gay rights and, most recently, striking down the death penalty for juvenile offenders, justices have invoked the practices of foreign nations and the rulings of international courts to support their conclusions. . . . [T]o hear conservatives’ violent reaction to the decision, you would think . . . that Kennedy had suddenly ceded the authority of the Supreme Court to the laws of Klingon, or Mars. . . . In a tone of incredulity, House Majority Leader Tom DeLay said in April, ‘We’ve got Justice Kennedy writing decisions based upon international law—not the Constitution of the United States.’ ” 25. See the report of a debate between Justice Breyer and Justice Scalia in Dorsen, “The Relevance of Foreign Legal Materials in U.S. Constitutional Cases.” 26. The phrasing is Walker’s, in conversation. See also Walker, “Beyond Boundary Disputes and Basic Grids.” 27. Roper, 624 (Scalia J., dissenting). 28. Ibid., 627. 29. Ibid., 628. 30. Schauer, “Authority and Authorities,” 1931–32: “A curious feature of the current controversy over the citation of foreign law is that it appears to be a debate about citation. And what makes that so curious is that engaging in a debate about citation, or even seeming to care about citation, stands in such marked contrast to the current legal zeitgeist. Legal sophisticates these days worry little about the ins and outs of citation, tending instead to cast their lot with the legal realists in believing that the citation of legal authorities in briefs, arguments, and opinions is scarcely more than a decoration.” 31. Cf. Tushnet, “When Is Knowing Less Better than Knowing More?” 1276: “I know of no one who believes that it is appropriate to use non-U.S. law as a precedent, where ‘precedent’ is defined . . . as a judicial holding that carries weight on grounds other than the correctness of the reasons provided by the court for its holding.” 32. See, e.g., “Court Rulings Best Made-in-USA,” Orlando Sentinel (Florida), August 26, 2005, A18. 33. For an account of the death threats, see Ginsburg, “Address before South African Constitutional Court.” I am grateful to Seipp, “Our Law, Their Law, History and the Citation of Foreign Law,” 1420, for this reference. 34. Michael P. Farris, chairman of the Home School Legal Defense Association, suggested that “if our congressmen lack the courage to impeach Justice Kennedy, they

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ought to be impeached as well,” quoted in Lionel Van Deerlin, “Reining in the Judiciary—or its Critics?” San Diego Union-Tribune, April 14, 2005. 35. One legislative proposal was entitled “Constitution Restoration Act” (H.R, 3799 2004). Section 2 of the proposed bill declared, “In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.” See also the description in Calabresi and Zimdahl, “The Supreme Court and Foreign Sources of Law,” 752–53, of the introduction into the House of Representatives in 2004 of a “Reaffirmation of American Independence Resolution” (H.R. Res. 568, 2004) providing that “judicial determinations regarding the meaning of the laws of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the laws of the United States.” 36. See Ralph De La Cruz, “Deadly Mix of Politics, Religion,” Sun-Sentinel (Fort Lauderdale) April 19, 2005. 37. Gene Lyons, “A Wake-up Call for the Sane Majority,” Arkansas DemocratGazette, April 13, 2005. 38. Rick Scarborough, “Judges Step out of Bounds,” USA Today, April 12, 2005: “Supreme Court justices are undermining our sovereignty by turning to foreign law for precedents in deciding whether minors can be subject to the death penalty.” 39. Charles Lane, “The High Court Looks Abroad,” Washington Post, November 12, 2005, quoting then–attorney general Alberto Gonzales: “Reliance on foreign law threatens to unmoor the court from the proper source of its authority for judicial review and place in jeopardy the reverence Americans have for the laws and for the institution of the Supreme Court.” 40. Gary Bauer, “Disorder in Our High Court,” USA Today, March 21, 2005. 41. Actually the earliest instance, in the postwar era, of foreign law being cited was in an Eighth Amendment decision, Trop v. Dulles, 356 U.S. 86 (1958). It concerned a soldier, Albert Trop, who in 1944 had escaped for a day or two from a U.S. Army stockade in Casablanca in French Morocco and had been convicted of desertion and sentenced to three years’ hard labor and a dishonorable discharge. Eight years later, when he applied for a passport, he was told his citizenship had been revoked on account of his desertion. Trop complained that the Eighth Amendment precluded the use of denationalization as a punishment. And the Court, by a majority, agreed. According to Chief Justice Warren, “The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.” Trop wasn’t a case about the death penalty, though there was some discussion of why expatriation was forbidden when death was allowed. Still, this case continued to be a reference point throughout the 1970s and 1980s for the use of foreign law in death penalty cases. 42. I begin in 1977, although the earliest case of this kind took place almost a century earlier: in Wilkerson v. Utah, 99 U.S. 130, 134 (1879), the Court appealed to practice in England and elsewhere to determine that death by shooting did not constitute cruel and unusual punishment. (For this citation, I am grateful to Jackson, “Constitutional Law and Transnational Comparisons,” 195.)

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43. Coker v. Georgia, 433 U.S. 584, 596n (1977), (White J., for the Court). 44. Enmund v. Florida, 458 U.S. 782, 788–89 (1982), (White J., for the Court). 45. Ibid., 796n (White J., for the Court). 46. Thompson v. Oklahoma, 487 U.S. 815 (1988) 47. Thompson, 830–31 (Stevens J, for the plurality). 48. Ibid., 859 (Scalia J., dissenting). 49. Ibid., 869 (Scalia J., dissenting). 50. Stanford v. Kentucky, 492 U.S. 361, 384 (1989). 51. Ibid., 369. 52. Atkins v. Virginia, 536 U.S. 304 (2002), 316 (Stevens J., for the Court). 53. Ibid., 325 (Rehnquist C.J., dissenting). 54. Knight v. Florida, 528 U.S. 990 (1999), Breyer J., dissenting, citing Pratt v. Attorney General of Jamaica [1994] 2 A. C. 1, 18 and Soering v. United Kingdom, 11 Eur. Ct. H.R. (ser. A), 439 (1989). 55. Kindler v. Minister of Justice [1991] 2 S.C.R. 779, 838 (joint opinion). 56. Foster v. Florida, 537 U.S. 990 (2002), 990n (Thomas J., concurring in denial of certiorari). 57. The Crimes Act 1961 abolished the death penalty for murder, leaving it in place for offenses like treason. It was abolished altogether in New Zealand by the Abolition of the Death Penalty Act 1989. 58. S v. Makwanyane and Another, 1995 (6) BCLR 665. 59. The law of France may command French courts to decide some cases by the law of the EU, but when they do so it is precisely because of what French law requires. 60. Not in all foreign countries. For opposition to the use of foreign law in Malaysia and Singapore, see Lee, “Interpreting Bills of Rights,” 124 ff. See also Saunders, “The Use and Misuse of Comparative Constitutional Law.” 61. Commonwealth of Australia Constitution Act, 1900, Preamble, clause 6. 62. R. v. Bain [2010] 1 NZLR 1. 63. Ibid., at §50, citing Jones v. Dunkel (1959) 101 CLR 298. 64. The New Zealand court also cited American authority—People v. Daley, 818 N.Y.S.2d 300 (2006)), cited in Bain at §50. 65. Taunoa v. Attorney-General [2008] 1 NZLR 429. 66. The list of cases cited is found at ibid., 431–33. 67. As one would expect, a lot of the discipline is provided by the willingness of counsel on both sides to cite foreign law and to patrol and, if necessary, critique each other’s citations. 68. [2007] 2 NZLR 289–432 (part 3). 69. Secretary for Justice (New Zealand Central Authority) v. HJ [2007] 2 NZLR 289 (Supreme Court), citing (at 301) Furnes v. Reeves, 362 F.3d 702 (2004) and (at 301, 317, and 326) Cannon v. Cannon [2005] 1 WLR 32 (English Court of Appeal). 70. Commissioner of Inland Revenue v. Duncan [2007] 2 NZLR 369, 376, considering Winter v. Inland Revenue Commissioners [1963] AC 235. 71. Young v. Police [2007] 2 NZLR 382, 387 (High Court), adopting Hunter v. Chief Constable of the West Midlands Police [1982] AC 529. 72. Jaggar v. QBE Insurance International [2007] 2 NZLR 336, 343, following Wise (Underwriting Agency) Ltd. v. Grupo Provincial SA [2004] 2 Lloyds Law Rep 483. 73. In any case, as Fred Schauer has argued, countries which have recently cut the apron strings are usually more rather than less eager to demonstrate their

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independence from the mother country, so far as their constitutional arrangements are concerned. See Schauer, “Politics and Incentives of Legal Transplantation,” 253–54. But Schauer makes his point about constitutions—each country will be proud of its own constitution—without distinguishing constitution proper from bill of rights. 74. Levinson, “Looking Abroad when Interpreting the U.S. Constitution,” 354, seems to argue that citation between Commonwealth countries does not really count as the citation of foreign law given their “particular historical relationship.” I can’t understand why he says this. These countries are now fully independent of one another. Anyway, the fact of a “particular historical relationship” between the United States and Great Britain did not prevent Justice Scalia from excoriating the Supreme Court’s “special reliance on the laws of the United Kingdom [as] perhaps the most indefensible part of its opinion” in Roper v. Simmons. 75. Donoghue v. Stevenson [1932] AC 562, 598–99 (Lord Atkin). 76. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), and Thomas v. Winchester, 6 N.Y. 397 (1852). 77. R. v. Davis [2008] 1 A.C. 1128, 1138–41. 78. Barker v. Corus UK Ltd [2006] 2 A.C. 572, 592–93. 79. K v. Home Secretary [2007] 1 A.C. 412, 430–31 80. EB (Ethiopia) v. Home Secretary [2009] Q.B. 1 81. Burke, Reflections on the Revolution in France, 87. 82. I talk more about this in chapter 5. 83. This paragraph is adapted from Waldron, “Treating Like Cases Alike in the World,” 99–100. 84. Constitution of South Africa, Article 39: “Interpretation of Bill of Rights: (1) When interpreting the Bill of Rights, a court, tribunal or forum . . . must consider international law; and may consider foreign law.” 85. Waldron, “Foreign Law and the Modern Ius Gentium.” 86. Compare Koh, “Paying ‘Decent Respect’ to World Opinion,” and Ginsburg, “A Decent Respect to the Opinions of Humankind.” 87. See, e.g., Alford, “In Search of a Theory for Constitutional Comparativism.” 88. See Larsen, “Importing Constitutional Norms from a ‘Wider Civilization,’ ” 1316–18. 89. Cf. O’Connor, “Remarks at the Southern Center for International Studies.” 90. Roper, 624–25 (Scalia J., dissenting). 91. See Lawrence v. Texas, 587–92 (2003) (Scalia J., dissenting) and Planned Parenthood v. Casey 982, 992–93 (1992) (Scalia J., dissenting). 92. For honorable exceptions, mostly in the context of EU jurisprudence, see Dickson, “How Many Legal Systems?” and MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth.

Chapter Two. The Law of Nations, Ius Gentium 1. 2. 3. 4.

Roper v. Simmons, 543 U.S. 551, 608 (2005) (Scalia J., dissenting). Ibid., 624. Ibid., 608. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

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5. Vlad Perju has followed the same path as I in linking Roper and Justice Scalia’s opinion in Sosa together, and I have profited from his account. See Perju, “The Puzzling Parameters of the Foreign Law Debate,” 189–92. 6. 28 U.S.C. § 1350 (2000). 7. Judge Friendly called the ATS a “legal Lohengrin,” IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (CA2 1975): “No one seems to know whence it came.” 8. See, for example, Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), bringing a Paraguayan torturer to account, and Mehinovic v. Vuckovic, 198 F.Supp.2d 1322 (N.D.Ga., 2002) and Kadic v. Karadzic, 70 F.3d 232 C.A.2 (N.Y.), 1995, both dealing with human rights abuses in the former Yugoslavia. 9. See, e.g., Aldana v. Del Monte Fresh Produce, 416 F.3d. 1242 C.A. 11 (Fla., 2005). See also Waldron, Torture, Terror and Trade-offs, 279–81. 10. Sosa 727–29 (Souter J., for the Court). 11. Ibid., 729. 12. Ibid., 739–43 (Scalia J., concurring). 13. Ibid., 749. 14. Ibid., 749–50. 15. See, e.g., Berman, “World Law” and Berman, “Introduction to the World Law Institute.” 16. Domingo, The New Global Law. 17. Riggs v. Palmer, 115 N.Y. 506, 512 (1889). See also the discussion in chapter 3, section 6. 18. Swift v. Tyson, 41 U.S. 1 (1842). 19. Cicero, De Re Publica, bk. III, chap. 22, 210–11, as quoted in Luke v. Lyde, 97 Eng. Rep. 614 (K.B. 1759). 20. Bentham, Introduction to the Principles of Morals and Legislation, 296 and note x. 21. Vattel, The Law of Nations, 67. 22. See Koh, “International Law as Part of Our Law,” 45: “At the beginning of the Republic, U.S. courts drew no sharp line between international and foreign law, precisely because of the extensive overlap of these two bodies of law.” 23. Blackstone, Commentaries, vol. 4, 56 (bk. IV, chap. 5). 24. Ibid., 54–58. 25. Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). See note 8 above. 26. See the cases cited in chapter 1, section 6. 27. See, e.g., International Covenant of Civil and Political Rights, Article 2 (1) and (2). 28. Koh, “How Is International Human Rights Law Enforced?” 1399. 29. See Justinian’s Institutes, 37 (bk. I, chap. ii). 30. Nicholas, An Introduction to Roman Law, 64. 31. Maine, Ancient Law, 40–41. 32. Ibid., 49. For a helpful and detailed account of the early history of this office, see Sherman, “Jus Gentium and International Law,” 58–61. 33. See Bederman, “World Law Transcendent,” 62–64. 34. Epstein, “Reflections on the Historical Origins and Economic Structure of the Law Merchant,” 1–2: “There is some agreement that the principles that were embodied in the Law Merchant had some relationship to the ius gentium, or the law of nations as it has come down to us from Roman times.”

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35. Teitel, “Humanity Law: A New Interpretive Lens on the International Sphere,” 696–97: “If one of the oldest meanings of jus gentium is as a common law to regulate dealings with aliens, with globalization, one might suppose that this concern gains a renewed significance today. Here, we can see that in the current global order something has changed relating to the greater movement and interaction of persons and peoples across state boundaries.” See also Stone, “Cultural Pluralism, Nationalism, and Universal Rights,” 1213. 36. Glenn, “The Common Laws of Europe and Louisiana,” 1043. But compare Juenger, “The Lex Mercatoria and Private International Law,” 1134: “The ius gentium, however, not only differed from the ius civile used for purely domestic consumption, but it also contained foreign (especially Greek) elements.” 37. Utz, “Review of David Pugsley, Justinian’s Digest and the Compilers,” 396–97. For influence back and forth between ius gentium and ius civile, see Palmer, “Mixed Legal Systems and the Myth of Pure Laws,” 1213. 38. Anderson, “Risk, Shipping, and Roman Law,” 191. 39. Whitman, “Western Legal Imperialism: Thinking about the Deep Historical Roots,” 305, has warned against too idealistic a view of the ius gentium in this phase of its development. 40. McDowell, Equity and the Constitution, 19: “The point of contact between ius gentium and ius naturale was the notion of . . . natural equity.” See also Maine, Ancient Law, 47. Sherman “Jus Gentium and International Law,” 59, doubts whether there was ever much distinction between ius gentium as a peregrine law and equity as applied among Romans too: “In fact the marvelous influx of persons other than Romans did not create distinctively jural needs, but rather emphasized needs already found to have existed in a growing community where the originally simple forms of commercial intercourse necessitated an appeal to equitable principles (bona fides) as opposed to the stricter forms of a code derived from primitive days.” 41. Maine, Ancient Law, 40–41. For a slightly more jaundiced view, see Wolff, Roman Law: An Introduction, 83: “The theory was merely an attempt to drape a scientific cloak around the fact that a number of principles developed by the praetor peregrinus had proved useful also in the jurisdiction of the praetor urbanis.” 42. For Greek influence on the ius gentium in its peregrine phase, see Hug, “The History of Comparative Law,” 1031. 43. For further details on the historical development of ius gentium, see Trnavci, “The Meaning and Scope of the Law of Nations,” 199–222. 44. Blackstone, Commentaries, 53 (bk. IV, chap. 5.) This was characteristic eachway betting on Blackstone’s part: his definition of law in general was “a rule of civil conduct prescribed by the Supreme power in a state commanding what is right, and prohibiting what is wrong” (ibid., 33 [bk. I, chap. 2]). 45. Cf. Dworkin, Taking Rights Seriously, 28–31. 46. Cicero, De Re Publica, bk. III, § 33, 210–11. 47. Maine, Ancient Law, 50. 48. Institutes, 37 (I, ii). 49. Ibid. 50. Ulpian, as quoted by Zuckert, “Bringing Philosophy down from the Heavens: Natural Right in the Roman Law,” 81. 51. See Honore, Ulpian: Pioneer of Human Rights, 88.

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52. Austin, The Province of Jurisprudence Determined, 153. 53. Ibid. 54. Ibid. 55. Aquinas, Summa Theologica, 136 (pt. 1, q. 95, art. 4, ad 1). 56. For modern usage along these lines, see Witte, “A Dickensian Era of Religious Rights,” 722 57. François Connan, Commentaria Iuris Civilis, as cited in Tuck, Natural Rights Theories, 37. 58. For a masterly exploration of this theme, see Kelley, The Human Measure, 44, 116 et passim. 59. See Vitoria, “On Civil Power,” 40 (§21: qu. 3, art. 4). 60. This is the fifteenth-century humanist Lorenzo Valla, quoted by Tuck, Natural Rights Theories, 34. 61. Kelley, The Human Measure, 61. 62. Gentili, De Iure Belli Libri Tres, bk. I, chap. 1, 8. See also Waldron, “Ius gentium: A Defense of Gentili’s Equation of the Law of Nations and the Law of Nature.” 63. Gentili, De Iure Belli Libri Tres, bk.I, chap.1, 12. 64. For Gentili’s suggestion that we are interested in the practices of most nations, not all, see the discussion below at the beginning of chapter8. 65. Gentili, De Iure Belli Libri Tres, bk. II, chap. 17, 216–17. 66. Ibid., bk. I, chap. 1, 11. 67. Ibid. 68. Ibid. 69. Posner, “Foreword: A Political Court,” 85. 70. Engle, “European Law in American Courts,” 103. 71. Alford, “In Search of a Theory for Constitutional Comparativism,” 659. 72. Cf. Perju, “The Puzzling Parameters of the Foreign Law Debate,” 180: “From a strong natural law standpoint, the fact that others may or may not subscribe to a given moral position does not add or subtract from its moral weight.” 73. Larsen, “Importing Constitutional Norms from a ‘Wider Civilization,’ ” 1293. 74. Engle, “European Law in American Courts,” 103 75. See, for example, Moore, “Moral Reality,” for a natural law approach of this kind. 76. For example, Slye, “Review of Human Rights in Theory and Practice,” 1584: “It was natural law that justified the Nuremberg verdicts, preventing them from being tainted as an exercise in retroactive legislation.” See also Luban, “Moral Responsibility in the Age of Bureaucracy,” 2352: “International revulsion at the official criminality of Hitler’s regime, as manifested legally in the Nuremberg trials, represents a triumph for natural law thinking.” 77. For the relevant parts of the Eichmann transcript, see http://www.nizkor. org/hweb/people/e/eichmann-adolf/transcripts/Sessions/Session-002–02.html and http://www.nizkor.org/hweb/people/e/eichmann-adolf/transcripts/Sessions/Session002–03.html. 78. For a similar view, see Wilke, “Reconsecrating the Temple of Justice.” 79. Kelley, The Human Measure, 190, 230. 80. Ibid., 62–63. 81. Michaels and Jansen, “Private Law beyond the State?” 885–86.

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82. See, e.g., Epstein, “Reflections on the Historical Origins and Economic Structure of the Law Merchant,” 4. 83. Michaels and Jansen, “Private Law beyond the State?” 885. 84. See the description in Bederman, “World Law Transcendent,” 66, of the way in which “Roman law concepts managed to merge with a functional necessity of universality in many material realms of medieval life, including commerce, martial law, and feudal relations—areas combining both private and public aspects.” 85. See Kelley, The Human Measure, 99–100. 86. As quoted in Mackie and Dickinson, “In Relation of the Manner of Judicatores of Scotland,” 268. For this citation, I am indebted to Cairns, “Attitudes to Codification and the Scottish Science of Legislation,” 6. See also the discussion in Kelley, The Human Measure, 184, for Lord Stair’s views on this subject, at the end of the seventeenth century. 87. Justice Owen Dixon in Wright v. Wright (1948) CLR 191 210, quoted by Kirby, “The Lords, Tom Bingham, and Australia,” 717. 88. For a good discussion of the development of the law merchant, see Berman, Law and Revolution, 333–56. 89. Bewes, The Romance of the Law Merchant, vi. 90. Epstein, “Reflections on the Historical Origins and Economic Structure of the Law Merchant,” 1–2, 4–5. See also Epstein, “The Modern Uses of Ancient Law,” 246n. 91. Epstein, “Reflections on the Historical Origins and Economic Structure of the Law Merchant,” 5. 92. See also Cooter, “The Rule of State Law and the Rule-of-Law State,” and Ellickson, Order without Law. 93. See Dimatteo, “An International Contract Law Formula,” 97: “The view of the new lex mercatoria as a modern day descendant of the Roman ius gentium and the medieval law merchant is not without opposition. The common law has long seen custom and usage as an independent source of law.” 94. Mogadara v. Holt (1691) 89 Eng. Rep. 597, 598 (1 Show. K. B. 317). The court of King’s Bench uncritically adopted counsel’s assertion that stating that the law of nations “is no more than the law of merchants, and that is jus gentium, and we are to take notice of it.” 95. See, for example, Berman, “Introduction to the World Law Institute,” 20–21: “The growing body of world law includes not only public international law . . . but also the enormous body of contractual and customary legal norms that govern relations among persons and enterprises engaged in voluntary activities that cross national boundaries. World law is a new name for what was once called ius gentium, the law of nations, embracing common features of the various legal systems of the peoples of the world.” 96. See Jackson, “Legal Visions of the New Europe.” 97. Carozza, “ ‘My Friend is a Stranger.’ ” 98. Witte, “Religious Freedom, Democracy, and International Human Rights,” 587–88: “What gave the ius gentium enduring authority in Western history was that it drew heavily from all manners of legal and cultural traditions. The ius gentium provided the foundation on which the international human rights apparatus emerged haltingly in the eighteenth and nineteenth centuries while emerging more fully in the twentieth century in the aftermath of the two devastating world wars.”

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99. Berger, “The Lex Mercatoria Doctrine and the Unidroit Principles of International Commercial Contracts,” 949 ff. 100. See, e.g., Huie, “The Right to Privacy in Personal Data.” 101. See, e.g., Juenger, “The ‘Extraterritorial’ Application of American Antitrust Law and the New Foreign Relations Law Restatement,” 612–13. 102. See Dinwoodie, “A New Copyright Order” and Patry, “Choice of Law and International Copyright.” 103. See Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889). I will consider this aspect of Riggs in section 6 of chapter 3.

Chapter Three. A Body of Legal Principles 1. Congressman Ted Poe of Texas reminded us of all the patriots who “spilled their blood . . . to sever ties with England forever. . . . Now, justices in this land of America . . . use British court decisions . . . in interpreting our Constitution. What the British could not accomplish by force, our Supreme Court has surrendered to them voluntarily.” 151 Cong. Rec. H3105 (daily ed. May 10, 2005). 2. See Gary Bauer, “Disorder in our high court,” U.S.A. Today, March 21, 2005, 23A: “In many of its highest-profile cases, the court has cited rulings from . . . even that model of justice, Zimbabwe. . . . America is a unique nation, with a unique Constitution that has its own history. How can we interpret it based on the standards and values of judges in Zimbabwe?” 3. Roper v. Simmons, 543 U.S. 551, 578 (2004) (Kennedy J., for the Court). 4. See Kelsen, The Pure Theory of Law, 11, 47, 211–14; Hart, The Concept of Law, 110–17; and Raz, The Concept of a Legal System, 203–8. 5. Bentham, Of Laws in General, 184 ff., and 194. 6. Bentham, Comment on the Commentaries, 44. 7. Frank, Law and the Modern Mind, 46. 8. Cohen, “Transcendental Nonsense and the Functional Approach,” 812. 9. Ibid., 816. 10. Ibid., 820. 11. Posner, “Foreword,” 88. 12. Ibid. 13. Scalia, “Foreign Legal Authority in the Federal Courts,” 305. 14. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). 15. Swift v. Tyson, 41 U.S. 1, 19. 16. Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518 (1928), (Holmes J., dissenting). 17. Ibid., 533. 18. Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes J., dissenting). 19. Black & White Taxicab Co., 533 (1928) (Holmes J., dissenting). 20. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 21. Bentham, “Anarchical Fallacies,” 53. 22. In Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 106 (1945), the Supreme Court said that the Erie Railroad case “did not merely overrule a venerable case. It overruled a particular way of looking at law which dominated the judicial process long

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after its inadequacies had been laid bare” (Frankfurter J. for the Court). But the furthest the Court took this in Guaranty Trust was to consider jurisdiction in equity. 23. Weinberg, “Back to the Future,” 539, and Delahunty and Yoo, “Against Foreign Law,” 325: “Natural-law thinking has been eclipsed in American jurisprudence by Erie.” But see Rutherglen, “Reconstructing Erie,” 291–96. 24. See Austin, The Province of Jurisprudence Determined, 164 ff (Lecture V). 25. See Hart, The Concept of Law, Raz, The Authority of Law, and Coleman, The Practice of Principle. See also the discussion in Goldsmith and Walt, “Erie and the Irrelevance of Legal Positivism.” 26. See Waldron, “Foreign Law and the Modern Ius Gentium,” 142–43. 27. Cf. Dworkin, “Thirty Years On,” 1677–78: “The political influence of legal positivism has sharply declined in the last several decades . . . and it is no longer an important force either in legal practice or in legal education. . . . Academic defenders of legal positivism . . . remain. But their arguments . . . have the artificiality and strain of theories that defenders of a sacred faith construct in the face of embarrassing evidence.” 28. Hart, The Concept of Law, 114–17. 29. To be sure, this does open up one or two gray areas in Hart’s jurisprudence. He seems to assume, in a sense, that we already have hold of a well-defined corps of officials whose practice will afford the basis of rule of recognition. It is a pity he did not discuss this assumption more explicitly. 30. See Holmes, “The Path of the Law,” 699. 31. Barrie, Peter Pan, chap. 13: “Every moment her light was growing fainter; and he knew that if it went out she would be no more. . . . Her voice was so low that at first he could not make out what she said. Then he made it out. She was saying that she thought she could get well again if children believed in fairies.” 32. Barak, “Comparison in Public Law,” 287. 33. See Dworkin, Law’s Empire, 135–39. 34. Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence, 291. 35. Weber, Economy and Society, 895. 36. See Waldron, “Are Constitutional Norms Legal Norms?” 1702–9. 37. See Grey, “Do We Have an Unwritten Constitution?” 38. Hart, The Concept of Law, 100–110. 39. Posner, The Perils of Global Legalism, xiii. 40. Raz, Practical Reason and Norms, 134 ff. But see the critique of this in Waldron, Law and Disagreement, 34–35. 41. “How many divisions has the Pope?” sneered Josef Stalin in 1935, when Pierre Laval urged him to conciliate the Vatican. See Churchill, The Gathering Storm, 121. 42. Cf. Kelsen, The Pure Theory of Law, 4–6. 43. Cf. Perju, “The Puzzling Parameters of the Foreign Law Debate,” 180: “In and by itself the fact of consensus carries no guarantee of moral authority.” 44. For mandatory norms, see Raz, Practical Reason and Norms, 49ff. For Raz’s general account of the putative authority of law, see Raz, “Authority, Law and Morality.” 45. Like Dworkin, “Thirty Years On,” 1672, I think Raz’s account “presupposes . . . a degree of deference towards legal authority that almost no one shows in modern democracies.”

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46. See Raz, Practical Reason and Norms, 140–41. 47. For a dogged characterization of this ambiguity, see Schauer, “Authority and Authorities,” 1940–52. For an article that mostly ignores it, see Flanders, “Toward a Theory of Persuasive Authority.” See also the discussion of persuasive authority in chapter 1. 48. So I think I disagree with Flanders, “Toward a Theory of Persuasive Authority,” 62: “A court need not mention any contrary persuasive authority unless it wants to.” I think this is largely because Flanders does not consider the possibility that a persuasive authority may have weight, though not binding weight. 49. But see Raz, “Law and Value in Adjudication,” 180–209, for a bracing discussion. 50. Riggs v. Palmer, 115 N.Y. 506, 511–12 (1889). 51. Ibid., 509 (Earl J.): “If such a case had been present to their minds, and it had been supposed necessary to make some provision of law to meet it, it cannot be doubted that they would have provided for it. It is a familiar canon of construction that . . . a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers.” 52. Ibid., 512 (Earl J.). 53. Mutual Life Insurance Company v. Armstrong, 117 U. S. 591 (1886). 54. Dworkin, Taking Rights Seriously, 40. 55. Ibid. 56. See ibid., 64–68, and Waldron, “The Need for Legal Principles.” 57. Dworkin, Taking Rights Seriously, 37–38. 58. See Dworkin, “A Reply by Ronald Dworkin,” 260–61. 59. Dworkin, Taking Rights Seriously, 24. 60. Ibid., 26. 61. See also Raz, “Legal Principles and the Limits of Law,” 75–77. 62. Dworkin, Taking Rights Seriously, 22–28, 90–100. 63. See Dworkin, “Reflections on Fidelity,” 1816: “I continue to think that the majority reached the right decision, in Riggs v. Palmer, in holding that, according to the better interpretive reconstruction, those who created the Statute of Wills did not intend to say something that allowed a murderer to inherit from his victim.” 64. Schauer, “Constitutional Invocations,” 1306: “The power of Dworkin’s claim about Riggs [was] that it demonstrate[d] that even the plain indications of laws plainly recognized by the rule of recognition may be set aside in the service of a larger and undifferentiated array of legal, political, and moral principles, an array that can be neither captured nor recognized by a positivistically conceived rule of recognition.” 65. For the close relation between the approaches, see Waldron, “Did Dworkin Ever Answer the Crits?” 159–61, and Dworkin, “Response” (2006), 298. 66. See Dworkin, “Response” (2010), 1086. 67. Cf. Posner, “Reply to Critics,” 1797. 68. Riggs v. Palmer 115 N.Y. 506 (1889), 511–12 (Earl J.). 69. Swift v. Tyson, 41 U.S. 1 (1842). 70. Riggs v. Palmer, 511–12. 71. Farber, “Courts, Statutes, and Public Policy,” 35, says of this element in Judge Earl’s opinion that it is “an argument seemingly based on natural law,” though he does also mention later (ibid., 39) that the court is relying on the law of nations. Oliver Wendell Holmes used the same phrase as Judge Earl used in Riggs—“universal

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law”—to refer to what I think is natural law, when he wrote, at the beginning of The Common Law, 1, “The remoter and more general aspects of law are those which give it universal interest. It is through them that you not only become a great master of your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.” 72. Dworkin, Taking Rights Seriously, 28. 73. See Dworkin, Law’s Empire, chap. 7. I have discussed the difference between the two approaches in Waldron, “Did Dworkin Ever Answer the Crits?” 158–61. For what it is worth, I don’t think they are ultimately very different, and Dworkin seems to agree: see Dworkin, “Response” (2006), 298. 74. The following paragraphs are adapted from Waldron, “Transcendental Nonsense and System in the Law,” 32–33. 75. See Fallon, “Reflections on the Hart and Wechsler Paradigm,” 965, and Wells, “Positivism and Antipositivism in Federal Courts Law,” 659. 76. Fallon, “Reflections on the Hart and Wechsler Paradigm,” 965. 77. See, for example, Hart, The Concept of Law, 91–117, and Raz, Practical Reason and Norms, 132–54. 78. Kelsen, The Pure Theory of Law, 70. 79. For discussion of the legal process approach to coherence, see Eskridge, Dynamic Statutory Interpretation, 143. For systematicity in natural law theory, see Finnis, Natural Law and Natural Rights, 355–57. For a modern-day formalist approach to doctrinal systematicity, see Weinrib, “Legal Formalism,” 966–75. 80. See Thompson v. Oklahoma, 487 U.S. 815 (1988). In that case the petitioner was fifteen years old when he committed a vicious murder and was tried and sentenced before he came of age (though he was tried “as an adult”). 81. See the discussion in chapter 4 of President of the Republic v. Hugo, 1997 (6) BCLR 708; 1997 (4) SA 1 (Constitutional Court). See also the discussion of the Rule of Law element in R. (on the application of Purdy) v. DPP [2010] 1 A.C. 345, 390–91 (§41) per Lord Hope; this was the case concerned with prosecutorial guidelines for assisted suicide. 82. For a discussion of the ECtHR decisions and their complexity, see Waldron, “Inhuman, and Degrading Treatment,” 285–90, and the sources referred to therein. For a recent New Zealand decision drawing upon principles that have emerged elsewhere in the world in this area, see Taunoa v. Attorney-General [2008] 1 NZLR 429. 83. I am grateful to Carol Sanger for this example. 84. Gray, The Nature and Sources of the Law, 124–25. 85. Austin, Lectures on Jurisprudence, 2:1108. 86. Ibid. See also Bentham, Introduction to the Principles of Morals and Legislation, 295. It is worth considering how far this part of Bentham’s and Austin’s skepticism is based on a preoccupation with minute details of drafting, language, and form that distinguish the law of one country from that of another, and how far it stems from their failure to discern an identity of substance in two principles formulated in different ways. 87. See Austin, The Province of Legislation Determined, 171, 214–23. See also Waldron, “Are Constitutional Norms Legal Norms?” 88. Cf. Hart, The Concept of Law, 209, on whether there is anything “to be gained in the theoretical or scientific study of law as a social phenomenon” by adopting a wider or narrower conception of law.

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89. For a protest about the “indiscriminate” use of the term “morality” by legal positivists, see Fuller, “Positivism and Fidelity to Law,” 635.

Chapter Four. Learning from Other Courts 1. See, e.g., Roper v. Simmons, 543 U.S. 551, 575 (2005). 2. Lawrence v. Texas, 539 U.S. 558, 573 (2003). 3. Washington v. Glucksberg, 521 U.S. 702, 710, 730, 732, 734–35 (1997). 4. Knight v. Florida, 528 U.S. 990 (1999), and Foster v. Florida, 537 U.S. 990 (2002). 5. This definition of “cherry-picking” is from Bentele, “Mining for Gold,” 224. 6. President of the Republic of South Africa v. Hugo, 1997 (6) BCLR 708 (C.C. 1997). 7. Constitution of South Africa, Article 36 (1): “The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.” 8. See President v. Hugo, §24. 9. This is how I first came across the case, namely, when I presented a lecture on dignity and its application to groups, for delivery as the annual Ben Beinart Lecture at the University of Cape Town. See Waldron, “The Dignity of Groups.” 10. President v. Hugo, at §75. 11. Ibid., at §47 (Goldstone J.) 12. Article 39 (1): “When interpreting the Bill of Rights, a court, tribunal or forum . . . must consider international law; and may consider foreign law.” 13. Those involved in the drafting of the Constitution have told me that many of the reasons for including this provision are similar to the arguments I pursued in chapter 5. It was felt important to identify the new South Africa explicitly with the opinions and practices of the rest of the rights-respecting world and to leave no doubt that their country, in its new constitutional order, intended decisively to reverse the alienation from the global consensus on human rights that had disfigured the years of apartheid. (Author’s conversation with Arthur Chaskalson.) 14. President v. Hugo, at §16 15. Ibid., at §§18–28. 16. Ibid., at §§27–28. 17. Scalia, “Foreword,” 872–73. 18. R (on the application of Smith) v. Secretary of State for Defence [2010] UKSC 29, at §236, per Lord Collins. 19. R. v. Williams [2009] 2 NZLR 750 20. Ibid., at §20, citing Barker v. Wingo, 407 U.S. 514 (1972) and Strunk v. United States, 412 U.S. 434 (1973). 21. Cf. Posner and Sunstein, “The Law of Other States,” 173: “Some states are younger than others in a political sense. . . . Israel is younger than the United States. Many nation-states are old but have recently undergone a revolution or acquired

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radically new institutions—South Africa, Hungary, China, the Czech Republic, Poland, and others. These nation-states are ‘young’ in our sense. We hypothesize that young states are more likely to rely on foreign law than old states are. The reason is that young states have more to learn.” 22. Roper v. Simmons, 543 U.S. 551 (2005), 624–26 (Scalia J., dissenting). 23. Sandra Day O’Connor, “Keynote Address.” 24. O’Connor, The Majesty of the Law, 234. 25. Ginsburg, “Address before South African Constitutional Court” (Feb. 7, 2006) 26. Ginsburg, “Looking Beyond Our Borders,” 1. 27. Breyer, “Keynote Address.” 28. Breyer, as reported in Dorsen, “The Relevance of Foreign Legal Materials in U.S. Constitutional Cases,” 524. 29. Sonia Sotomayor, speech to the ACLU of Puerto Rico (April 2009), cited in Salvatore et al., “Sotomayor and the Future of International Law.” 30. Dorsen, “The Relevance of Foreign Legal Materials in U.S. Constitutional Cases,” 523. 31. See the observations of Michael Kirby, formerly of the High Court of Australia, in “International Law: The Impact on National Constitutions,” 353–54: “The real issue is not whether such sources will inform municipal judges in their decision-making. Of course, they will. It is whether such judges should disclose—and be ready to debate—this operation on their thinking or keep it secret. . . . Justice Scalia gave the game away when he said that, so far as he was concerned, it was all right for Justice Breyer to inform himself on international legal developments; but he should just keep it out of his opinions. For many judges, such a course is both inconsistent with the commitment to intellectual honesty and to transparent processes for argument, reasoning and decision-making.” 32. For this conception of judicial reason giving, see Fuller, “Forms and Limits of Adjudication,” and the discussion of Fuller’s account in Waldron, “Procedural Values and the Rule of Law.” See also Jackson, “Constitutional Comparisons,”119–20: “Overt references to what judges believe about other countries will often provide helpful transparency.” 33. Posner, “No Thanks, We Already Have Our Own Laws.” 34. Young, “Foreign Law and the Denominator Problem,” 151–53. 35. Sitaraman, “The Use and Abuse of Foreign Law,” 681. 36. Lawrence, 572–73 (Kennedy J., for the Court), responding to Chief Justice Burger’s claim in Bowers v. Hardwick, 478 U.S. 186, 196 (1986) that “decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization” (Burger C.J., concurring). 37. Posner and Sunstein, “The Law of Other States.” See also Sunstein, A Constitution of Many Minds, 8–12. 38. Condorcet, “Essay on the Application of Mathematics to the Theory of Decision-Making,” 48–49. The best account of Condorcet’s theorem is in AustenSmith and Banks, “Information Aggregation, Rationality, and the Condorcet Jury Theorem.” 39. For useful critiques of this application of the Condorcet theorem, see Vermeule, “Many-Minds Arguments in Legal Theory,” and Sitaraman, “The Use and Abuse of Foreign Law,” 683–87.

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40. As it happens, Condorcet himself (“Essay on the Application of Mathematics to the Theory of Decision-Making,” 49) was savagely pessimistic about the average elected legislator: A very numerous assembly cannot be composed of very enlightened men. It is even probable that those comprising this assembly will on many matters combine great ignorance with many prejudices. Thus there will be a great number of questions on which the probability of the truth of each voter will be below 12. It follows that the more numerous the assembly, the more it will be exposed to the risk of making false decisions. See also Waldron, The Dignity of Legislation, 32, and “Democratic Theory and the Public Interest,” 1323–24. In “Looking for Cass Sunstein” Dworkin takes a view similar to Condorcet’s: “Nothing in any plausible explanation of how people form moral convictions . . . provides the slightest ground for assuming that people generally are more likely than not to form correct convictions about controversial moral issues; and history hardly supports that hypothesis either.” 41. See Sitaraman, “The Use and Abuse of Foreign Law,” 684–85. 42. Aristotle, Politics, bk. 3, chap. 11, 1281a43–b9. This has been taken up by James Surowiecki in his book The Wisdom of Crowds. I have discussed Aristotle’s argument extensively in Waldron, “The Wisdom of the Multitude.” 43. Cf. Posner and Sunstein, “The Law of Other States,” 173, cited at the end of section 2. 44. Aristotle, Politics, 86, 1282a34–41. 45. See Waldron, “Legislation by Assembly.” 46. O’Connor, “Keynote Address,” 350. Her own rather hesitant argument in favor of the invocation of foreign law in Roper may not illustrate this; still, the prospect is worth exploring. 47. Roper v. Simmons 569–70 (Kennedy J., for the Court). 48. Young, “Foreign Law and the Denominator Problem.” 49. Washington v. Glucksberg, 521 U.S. 702, 710, 730, 732, 734–35 (1997). 50. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 51. Ibid., 650–51 (Jackson J., concurring). 52. Jackson, “Constitutional Law and Transnational Comparisons,” 199–200. 53. Posner, “No Thanks, We Already Have Our Own Laws.” 54. Posner in The Problematics of Legal and Moral Theory, 309. 55. Printz v. United States, 521 U.S. 898 (1997). 56. Markesinis and Fedtke, Judicial Recourse to Foreign Law. 57. See Printz, 921 (1997), Scalia J., dissenting: “Justice Breyer’s dissent would have us consider the benefits that other countries, and the European Union, believe they have derived from federal systems that are different from ours. We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one.” 58. Jackson, “Constitutional Law and Transnational Comparisons,” 200ff. 59. Posner, The Problematics of Moral and Legal Theory, 80ff. See also my review of this book in Waldron, “ ‘Ego-Bloated Hovel,’ ” 619–24. 60. See Human Rights Watch, The Rest of Their Lives, chap. 8: “International human rights law flatly prohibits life without parole for those who commit their crimes before the age of eighteen, a prohibition that is recognized and respected

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by almost every country in the world.” See also Smit, Taking Life Imprisonment Seriously. 61. See Posner, Overcoming Law, 387 ff. 62. For helpful characterizations of the formalism of the late nineteenth-century Harvard law teacher Christopher Columbus Langdell, see Grey, “Langdell’s Orthodoxy,” Pildes, “Forms of Formalism,” and Schlegel, “Langdell’s Legacy or, The Case of the Empty Envelope.” 63. See Hart, “Ihering’s Heaven of Concepts and Modern Analytical Jurisprudence.” 64. Cf. Cohen, “Transcendental Nonsense and the Functional Approach,” 65. See also Hart, The Concept of Law, 157–66. 66. See also Waldron, “Does Law Promise Justice?” 778–79. 67. Hoeflich, “Law and Geometry,” 99–100. 68. See Berkowitz, “Democratic Legitimacy and the Scientific Foundation of Modern Law,” 109–10, and, more generally, Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition, 17–54, and Riley, Leibniz’ Universal Jurisprudence, 14–50. 69. Feldman, “Historic Perspectives on Law and Science,” 29. 70. Hoeflich, “Law and Geometry: Legal Science from Leibniz to Langdell,” 102. 71. Quoted in Kelley, The Human Measure, 217. 72. See Kant, The Metaphysics of Morals, 386–90, 401–52. 73. See, e.g., Rawls, A Theory of Justice, 60. For doubts about the viability of the Kantian algebra, see Waldron, “Toleration and Reasonableness,” 14 ff. 74. Bingham, “There Is a World Elsewhere,” 528. For the cases cited by Lord Bingham in this passage, see Hadley v. Baxendale (1854) 9 Exch 341 and Somerset v. Stewart, Lofft 1, 18–19; 98 Eng Rep 499 (King’s Bench, 1772). 75. Holmes, “The Path of the Law,” 708. 76. See the discussion in Cover, Justice Accused, 16–17, 87–99. 77. Locke, Reasonableness of Christianity, 145. See also Waldron, God, Locke, and Equality, 241–43. 78. See Waldron, “Minority Cultures and the Cosmopolitan Alternative,” 778. 79. See, e.g., Gascoigne, “The Historical Demography of the Scientific Community” and Jacobs, “Scientific Community.” 80. Dixon, “A Democratic Theory of Constitutional Comparison,” 957. 81. This was one of the main themes in Waldron, “Foreign Law and the Modern Ius Gentium,” 132, 138, 143. 82. Washington v. Glucksberg, 521 U.S. 702, 710, 730, 732, 734–35 (1997). 83. Foster v. Florida, 537 U.S. 990, 990 n. (2002) (Thomas, J., concurring in denial of certiorari): “This Court’s Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans”). 84. Alford, “Free Speech and the Case for Constitutional Exceptionalism,” 1085. Alford goes on to say that the proper analogy for constitutional analysis is not the sterile laboratory of the scientist but “the earthy vineyard of the oenologist. Every winemaker starts with the same basic ingredients, utilizes the same basic techniques, and enlists the same chemical reactions of fermentation—all in pursuit of the perfect wine for that environment. But the winemaker knows all too well that local conditions such as geology, climate, and culture—what the French call terroir—dramatically shape the expression and personality of the wine. The winemaker cannot control for these local variables any more than the jurist can control for the country’s text,

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structure, history, precedent, and national experience” (ibid., 1085–86). I will address these points about difference in section 3 of chapter 7. 85. Einstein and Infeld, The Evolution of Physics, 95, cited by Ackermann, “Constitutional Comparativism in South Africa,” 185. Ackermann also cited Karl Popper’s view about the formulation of problems as an essential stage of scientific method, ibid., 184–5 (citing Popper, All Life Is Problem Solving, 14). I am grateful to Justice Ackermann for a conversation in Cape Town on this topic. 86. Roper v. Simmons, 543 U.S. 551, 578 (2004): “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” 87. Like the “right answer” thesis in Dworkin, Taking Rights Seriously. 88. Allan, “Jeremy Waldron and the Philosopher’s Stone,” 141. 89. Ibid., 139–41. 90. Ibid., 146. 91. Ibid., 142, 146. 92. See Waldron, “The Irrelevance of Moral Objectivity,” and Law and Disagreement, chapter 8. For another attempt to bracket the issue, see the discussion of “external skepticism” in Dworkin, Law’s Empire, 79–81. 93. See Blackburn, Essays in Quasi-Realism, for a powerful argument to this effect. 94. Wechsler, “Toward Neutral Principles of Constitutional Law.” 95. Roper, 608 (Scalia J., dissenting). 96. Waldron, Law and Disagreement, 101–14, 232–54. I reject the view held by Berkowitz, “Democratic Legitimacy and the Scientific Foundation of Modern Law,” that a concern for democratic legitimacy is necessarily an embrace of legal voluntarism.

Chapter Five. Treating Like Cases Alike (in the World) 1. Hopkinson v. Police [2004] 3 NZLR 704. There is a useful discussion of this case in Buschbacher, “Protection of Public Symbols.” 2. Under section 14 of the NZBORA, “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” Section 6 directs an interpretation consistent with the Bill of Rights to be preferred and applies ”wherever an enactment can be given a meaning that is consistent with the rights and freedoms” in the Bill of Rights. 3. NZBORA, section 5. 4. Hopkinson, at §50. 5. Ibid., at §§56–65. Justice France noted also in U.S. v. Eichman, 496 U.S. 310 (1990), by a majority, the Court ruled unconstitutional the Flag Protection Act 1989, enacted after Texas v. Johnson, which imposes criminal penalties against anyone who knowingly “mutilates, defaces, physically defiles, burns, maintains upon the floor or ground, or tramples” upon a flag of the United States. 6. Hopkinson, at §§67–72, citing HKSAR v. Ng Kung-Siu, 8 BHRC 244 (1999). 7. Hopkinson, at §77. 8. Ibid., §§79–81.

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9. State v. Schleuter, 127 NJL 496, 23 A 2d 249, 251: “Dishonour . . . as respects the flag, to deface or defile, imputing a lively sense of shaming or an equivalent acquiescent callousness.” 10. Hopkinson, at appendix A: “Overseas Flag Desecration Laws,” citing an Australian legislative web site http://www.aph.gov.au/library/pubs/bd/2003– 04/04bd042.htm. 11. Hopkinson, at §§71–2, 76. 12. Samuel Alito, Confirmation Hearings, January 10, 2006, available at http:// www.asksam.com/ebooks/releases.asp?file=Alito_Hearing.ask&dn=Day%202%20 %2d%20Kyl (last visited August 12, 2010): “I don’t think that foreign law is helpful in interpreting the Constitution. . . . The structure of our government is unique to our country, and so I don’t think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government.” 13. Tebbe and Tsai, “Constitutional Borrowing,” 484–85. 14. See also the argument against a reliance account in Dworkin, Law’s Empire, 130–35. 15. Fallon, “Stare Decisis and the Constitution,” 573. 16. Ibid., 584. See also Monaghan, “Stare Decisis and Constitutional Adjudication.” 17. For other aspects of comity between courts, see Slaughter, A New World Order, 86–91. 18. Koh, “International Law as Part of Our Law,” 47. 19. Soering v. United Kingdom, 11 EHRR 439 20. Knight v. Florida, 528 U.S. 990 (1999) and Foster v. Florida, 537 U.S. 990 (2002). 21. Foster, 990 (Thomas J., concurring in denial of certiorari). 22. I tried to say some of it in Waldron, “How to Argue for a Universal Claim.” 23. Cram, “Resort to Foreign Constitutional Norms in Domestic Human Rights Jurisprudence,” 127, 141. 24. See Waldron, “Dignity and Defamation: The Visibility of Hate” and “Free Speech and the Menace of Hysteria.” 25. Bentham, “Supply without Burthen,” 332. See also Waldron, “Supply without Burthen Revisited,” 1473–76. 26. As quoted in Jeffrey Toobin, “Swing Shift,” The New Yorker, September 12, 2005, 50. For this reference I am grateful to Sitaraman, “The Use and Abuse of Foreign Law in Constitutional Interpretation,” 655. 27. McCrudden, “Human Dignity and Judicial Interpretation of Human Rights,” 675 ff. 28. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 866 (1992). 29. Neuman, “Human Rights and Constitutional Rights,” 1864 ff. 30. See Alston, Promoting Human Rights through Bills of Rights, v. 31. Alston “A Framework for the Comparative Analysis of Bills of Rights,” 11: “For many years, human rights advocates have sought to demonstrate that there were sufficient similarities between the provisions of various national constitutions and legal codes and those of the key international human rights treaties as to justify a quest to develop a code of human rights drawing upon a coherent corpus of jurisprudence.”

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32. See Neuman, “Human Rights and Constitutional Rights,” for an exploration of the dimensions of this challenge. 33. See Rubenfeld, “Unilateralism and Constitutionalism,” 2000–2001. But cf. Black, A New Birth of Freedom, 1–40. 34. Thompson v. Oklahoma, 487 U.S. 815, 869 (1988), (Scalia J., dissenting). 35. Feinberg, “Noncomparative Justice,” 268. 36. See Bronaugh, “Persuasive Precedent,” 228. This is like a Hayekian response to complaints about social justice in a market society. (See Hayek, The Mirage of Social Justice.) Smith gets a higher salary than Jones for doing the same work. But Smith’s employer is not the same as Jones’s employer. There is no overarching entity—“no such thing as society”—that has responsibility for what the two of them get. There is a disparity, sure, but no one can stand convicted of acting unfairly. 37. This is adapted from McCrudden, “A Common Law of Human Rights?” 44. 38. This opens up deeper structural issues in moral philosophy. I don’t think we have yet entirely figured out the enduring grip of agent-relative moral ideas in areas of moral interaction that are primarily motivated by concern for those whose interests are advanced or set back by the agent’s actions. For an instance of some of these difficulties, see the critique of Robert Nozick’s agent-relative account of the constraining force of rights in Nagel, “Libertarianism without Foundations,” 143–44: “The source of rights of the general kind Nozick advocates cannot be discovered by concentrating . . . on the meaning of individual human lives and the value of shaping one’s own life. . . . Vague as his suggestions are, they all suffer from an error of focus, for they concentrate solely on features of persons that make it bad for certain things to happen to them. . . . But rights of the kind that interest Nozick are not rights that certain things not happen to you. . . . Rather they are rights not to be deliberately treated or used in certain ways, and not to be deliberately interfered with in certain activities. . . . [Y]our right not to be assaulted is not a right that everyone do what is required to ensure that you are not assaulted. It is merely a right not to be assaulted, and it is correlated with other people’s duty not to assault you. This cannot be explained simply by the fact that it is bad to be assaulted.” And see generally the discussion in Nagel, “Autonomy and Deontology.” 39. Trop v. Dulles, 356 U.S. 86, 102 (1958). 40. Supreme Court Act 2003 No. 53, section 42. 41. Pratt v. Attorney General of Jamaica [1994] 2 A. C. 1. 42. See Kirby, “The Lords, Tom Bingham, and Australia,” 721. 43. See Cooke, “Courts of Final Appeal: The Pacific Way,” 2. 44. Slaughter, “A Global Community of Courts.” 45. Slaughter, A New World Order, 68, 67. 46. Slaughter, “A Global Community of Courts,” 192. 47. Slaughter, A New World Order, 65–100. 48. For “bonding,” see ibid., 79. 49. Alston, Steiner, and Goodman, International Human Rights in Context, 739. 50. Raz, “Human Rights without Foundations,” 328. 51. But see the arguments about cosmopolitan law in Waldron, “Teaching Cosmopolitan Right.” 52. Shklar, “The Liberalism of Fear.” 53. Raz, “Human Rights in the Emerging World Order,” 41. 54. Ibid., 43.

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55. NZBORA, Section 5 in Hopkinson v. Police [2004] 3 NZLR 704 and South African Constitution, Section 36 in President of the Republic of South Africa v. Hugo, 1997 (6) BCLR 708 (1997). 56. Dworkin, Law’s Empire, 165. 57. Dworkin, “Hard Cases,” 113. 58. Dworkin, Law’s Empire, 164–65. 59. Ibid., 177, 214. 60. Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889). 61. See Waldron, “The Circumstances of Integrity,” and Law and Disagreement, chap. 9. 62. Waldron, Law and Disagreement, 130–35, 157–60. See also the discussion above in section 3. 63. Ibid., 185–86. 64. Ibid., 185–87. 65. Dworkin, Life’s Dominion, 25–26, 109–116. 66. Dworkin, Law’s Empire, 165. 67. Ibid., 189. 68. Cf. Flanders, “Toward a Theory of Persuasive Authority,” 87: “To continue in the Dworkinian vein, one might wonder to what extent the international community (and its courts) is the proper community to which courts should be faithful in interpreting the law.” 69. See Raphael, “The Problem of Horizontal Effect.” 70. Cf. Holmes and Sunstein, The Cost of Rights. 71. Dworkin, Taking Rights Seriously, 146. As I have emphasized—e.g., in Waldron, “The Core of the Case against Judicial Review”—the idea of rights against the majority’s interests is different from the idea of rights against the majority’s convictions about what rights we have. 72. Dworkin, Law’s Empire, 200, 210–14. 73. Ibid., 65–66. 74. See Rivlin, “Thoughts on Referral to Foreign Law, Global Chain-Novel, and Novelty,” 14–15. 75. This is how things work in Commonwealth jurisdictions. In New Zealand a decision by the House of Lords or, now, the U.K. Supreme Court squarely on point but contrary to the doctrinal argument one is pursuing will be seen as an embarrassment, i.e., as something that counts against one’s line of argument, even though it is by no means fatal. All things considered, it is better if one’s argument fits the English precedents as well as the New Zealand ones, but the moral force of one’s argument or the weight of local precedents or indeed the weight of other foreign precedents—e.g., Australian, Canadian, or even American—can make up for a shortfall in one’s ability to fit one’s argument to the English case. 76. Dworkin, Law’s Empire, 190–215. For integrity sometimes yielding to justice, see ibid., 218–19.

Chapter Six. Democratic and Textualist Objections 1. See, e.g., Alford, “In Search of a Theory for Constitutional Comparativism,” 709–10 and Alford, “The United States Constitution and International Law,” 58–61.

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2. Roper v. Simmons, 543 U.S. 551, 608 (2004) (Scalia J., dissenting). 3. Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 533 (1928) (Holmes J., dissenting). 4. For the position that legal positivism has an ancestral connection to democracy, see Dworkin, “Thirty Years On,” 1677 and Waldron, “Can there be a Democratic Jurisprudence?” 5. See, e.g., Waldron, “The Core of the Case against Judicial Review.” I do not deny that the U.S. Constitution or U.S. constitutional law authorizes this practice. But I think it is undesirable and that it lacks political legitimacy (in a normative sense). 6. See ibid., 1354–55. See also Gardbaum, “The New Commonwealth Model of Constitutionalism” and Tushnet, “Weak-Form Judicial Review.” 7. See Roper v. Simmons, 543 U.S. 551 (2004) and Lawrence v. Texas, 539 U.S. 558 (2002). 8. See, e.g., Poole, “Judicial Review at the Margins,” 82n., and Perju, “The Puzzling Parameters of the Foreign Law Debate,” 197. 9. Sosa v. Alvarez-Machain, 542 U.S. 692, 750 (2004) (Scalia J., concurring). 10. Allan, “Bills of Rights and Judicial Power: A Liberal’s Quandary” and “Rights, Paternalism, Constitutions and Judges.” 11. Allan, “Jeremy Waldron and the Philosopher’s Stone,” 159, referring to Waldron, “Foreign Law and the Modern Ius Gentium.” 12. Allan, “Jeremy Waldron and the Philosopher’s Stone,” 160–61. 13. Ibid., 161. For the record, though I do oppose the juvenile death penalty, Allan is wrong to think that this is my reason for not opposing the citation of foreign law in Roper. I support the citation of foreign law in other cases too, including cases with whose outcome I disagree, such as Washington v. Glucksberg, 521 U.S. 702 (1997). 14. Foster v. Florida, 537 US 990 (2002) (Thomas J., concurring in denial of certiorari). 15. President of the Republic v. Hugo (1997) (6) BCLR 708. 16. Foster, 990n (Thomas J., concurring). 17. See Waldron, “The Core of the Case against Judicial Review,” 1353–54. 18. Planned Parenthood v. Casey, 505 U.S. 833, 854–69 (1992). 19. See the discussions in Fallon, “Stare Decisis and the Constitution” and Monaghan, “Stare Decisis and Constitutional Adjudication.” 20. I have taken this from the transcript of the confirmation hearings in the Washington Post, September 13, 2005. 21. See Waldron, “The Core of the Case against Judicial Review,” 1391. 22. Waldron, Law and Disagreement, 101 ff. 23. Finnis, Natural Law and Natural Rights, 247. See also Green, “The Duty to Govern.” 24. See, e.g., McGinnis, “Should International Law Be Part of Our Law?” 1193 ff., and “Contemporary Foreign and International Law in Constitutional Construction,” 805–7. See also Rubenfeld, ’Unilateralism and Constitutionalism,” 2006 ff. 25. McGinnis, “The Comparative Disadvantage of Customary International Law,” 9. 26. Finnis, Natural Law and Natural Rights, 243. 27. Scalia, A Matter of Interpretation, 16–25. See also Waldron, “Legislators’ Intentions and Unintentional Legislation” and Law and Disagreement, chaps. 4, 6.

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28. Cf. Scalia, “Foreword,” 872–73: “American constitutional evolutionism has, so to speak, metastasized, infecting courts around the world.” 29. I am not the first to try this: see, e.g., Gray, “Why Justice Scalia should be a Constitutional Comparativist.” 30. Foreign defenders of the citation of foreign law sometimes think themselves entitled to become more than usually dismissive of textualism in this area: see, e.g., the remarks of Basil Markesinis in “Understanding American Law by Looking at it through Foreign Eyes,” 137: “To oppose my suggestion on the grounds of textualism or originalism or whatever you wish to call it is not, in my view, an opposition based on legal reasoning.” 31. For the idea of Protestantism here, see Postema, “Protestant Interpretation and Social Practices.” 32. In A Matter of Interpretation, 139, Justice Scalia argued that a textualist need not be embarrassed by a commitment to stare decisis, though he insisted that such a commitment is not “part of ” the textualist philosophy. He also said, however, that there is a sense in which stare decisis is “a pragmatic exception” to textualism (ibid.). 33. I am grateful to Stephanie Winson-Rota, a student in my seminar “The Rule of Law,” which I taught in New Zealand in 2005, for the material in this example. It draws on her seminar paper, “Does the Rule of Law Apply in the International Sphere?” 34. Neuman, “Human Rights and Constitutional Rights: Harmony and Dissonance.” 35. There is nothing incompatible with textualism of this talk about purpose. For a distinction between legislative purpose (which textualists sometimes acknowledge) and legislative intent (which they vehemently reject), see Manning, “What Divides Textualists from Purposivists?” particularly part 1 of the article on common ground between textualists and purposivists. For example, at ibid., 84n, Manning cites Justice Scalia’s observation in Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 192 (1995): “While the meaning of the text is by no means clear, this is in our view the only reading that comports with the statutory purpose.” 36. As quoted in Dorsen, “The Relevance of Foreign Legal Materials in U.S. Constitutional Cases,” 521. 37. Olympic Airways v. Husain, 540 U.S. 644, 658 (2004) (Scalia, J., dissenting) 38. See Ryan, “Does the Eighth Amendment Punishments Clause Prohibit only Punishments that are both Cruel and Unusual?” 39. R. v. Smith [1987]1 S.C.R. 1045, at §10. 40. Ibid., at §145. 41. Reference re s. 94(2) of Motor Vehicle Act (British Columbia) [1985] 2 S.C.R. 486 at §10: “We would, in my view, do our own Constitution a disservice to simply allow the American debate to define the issue for us, all the while ignoring the truly fundamental structural differences between the two constitutions” (per McIntyre J.). 42. See Human Rights Committee, “General Comment No. 20/44 (2 April, 1992),” cited by Evans and Morgan, Preventing Torture, 76. See also S v. Williams and others, 1995 (7) BCLR 861 (CC), §34: “In the phrase ‘cruel, inhuman or degrading’ the three adjectival concepts are employed disjunctively and it follows that a limitation of the right occurs if a punishment has any one of these three characteristics.” For discussion of the view that the concepts need not be distinguished, see Waldron, Terror, Torture, and Trade-offs, 296–97.

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43. Taunoa v. Attorney-General [2008] 1 NZLR 429, at §79 (Elias C.J.) For the confusion in the United States, see Waldron, Terror, Torture, and Trade-offs, 303. 44. Actually, process-based accounts are not the only possible grounds for textualism. We might also support textualism on rule-of-law grounds: it is the text of the state that has been communicated to the public and therefore those who interpret the law have an obligation to keep faith with the content of what was promulgated. Cf. Fuller, The Morality of Law, 49 ff. 45. This might be along the lines of “we must never forget that it is a constitution that we are expounding.” (Marshall CJ in McCulloch v. Maryland, 4 Wheat. 316, 407.) 46. See Scalia, A Matter of Interpretation, 136n. 47. I discuss this in Waldron, Law and Disagreement, 82–83. 48. See ibid., chap. 4. 49. OED online for “cruel” (meaning 4) and “unusual.” 50. This is based on Gottlob Frege’s distinction between sense and reference, in which “sense” is understood as “the route to reference”: see Frege, “On Sinn and Bedeutung.” 51. For the distinction, see Waldron, Law and Disagreement, 255–57. 52. Quoted in Cohen, “Supremacy and Diplomacy: The International Law of the U.S. Supreme Court,” 273–74. 53. H.R. Res. 568, 108th Cong. (2004). 54. Kochan, “Sovereignty and the American Courts at the Cocktail Party of International Law,” 511–12. 55. Lee, “International Consensus as Persuasive Authority,” 67: “One side accuses the Court of giving up our sovereignty; the other side simply denies it with a shrug, as if wondering why anyone would ever think such a silly thing.” 56. See Krasner, Sovereignty: Organized Hypocrisy, and Henkin, “That ‘S’ Word: Sovereignty, and Globalization, and Human Rights.” 57. Messitte, “Citing Foreign Law in U.S. Courts: Is Our Sovereignty Really at Stake?” 177. 58. Tushnet, “Transnational/Domestic Constitutional Law,” 262. 59. Rubenfeld, ’Unilateralism and Constitutionalism,” 2006. 60. Hamilton et al., The Federalist, 250 (No. 47) on following the model of the separation of powers in the British constitution, and Madison, Notes of Debates in the Federal Convention, 605, referring to the impeachment of Warren Hastings in England. 61. Seipp, “Our Law, Their Law, History and the Citation of Foreign Law,” 1429. 62. See Printz v. United States, 521 U.S. 898, 921 (1997) (Scalia J., dissenting). See also the reported comments of Justice Scalia in January 2005 at the Washington College of Law at American University in Washington D.C.): “I mean, the Founders used a lot of foreign law. If you read The Federalist Papers, it’s full of discussions of the Swiss system, German system. It’s full of that. It is very useful in devising a constitution. But why is it useful in interpreting one?” (reported in Cram, “Resort to Foreign Constitutional Norms in Domestic Human Rights Jurisprudence,” 118). 63. See also the discussion of insularity in Seipp, “Our Law, Their Law, History and the Citation of Foreign Law,” 1435. 64. See, e.g., Calabresi, “ ‘A Shining City on a Hill’: American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law.” 65. See the discussion in Resnik, “Law’s Migration,” 1582–83, and “Law as Affiliation’.” 66. Posner and Sunstein, “The Law of Other States,” 139.

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Chapter Seven. Practical Difficulties 1. I have taken this from the transcript of the confirmation hearings in the Washington Post, September 13, 2005. See also Sheryl Gay Stolberg and Adam Liptak, “Courts in Transition: The Overview; Roberts Fields Questions on Privacy and Precedents,” New York Times, September 14, 2005, A1. 2. See McCormick, George Santayana: A Biography, 173. See also Aldisert, “Review of Super Chief: Earl Warren and his Supreme Court,” 277. 3. Wald, “Some Observations on the Use of Legislative History,” 214: “It sometimes seems that citing legislative history is still, as my late colleague Harold Leventhal once observed, akin to ‘looking over a crowd and picking out your friends.’ ” See also M. Wald, “The Use of International Law in the American Adjudicative Process,” 440. 4. See Exxon Mobil Corp. v. Allapattah Services, 545 U.S. 546, 568 (2005), (Kennedy J., for the Court). 5. Scalia, A Matter of Interpretation, 35–38. 6. Price v. Time, Inc., 416 F.3d 1327 C.A.11 (Ala.), 2005, 1338 (cherry— picking the dictionaries one uses to define statutory terms). 7. See, e.g., Cornell and Florence, “The Right to Bear Arms in the Era of the Fourteenth Amendment,” 1050. 8. Sutton, “The Role of History in Judging Disputes about the Meaning of the Constitution,” 1185. 9. Farber, “The Constitution’s Forgotten Cover Letter,” 637. 10. For example, see Dery, “Adding Injury to Insult,” 381 (referring to the decision in United States v. James Daniel Good Real Property, 510 U.S. 43 (1993): “Chief Justice Rehnquist . . . only cherry-picked favorable language from the revenue precedents.” See also the discussion in Coyle, “The Role of Tradition in Establishment Clause Jurisprudence.” 11. See Newton, “Almendarez-Torres and the Anders Ethical Dilemma,” 759 12. See Smith “The Supreme Court and the Politics of Death” 364n. See also Roper v. Simmons, 543 U.S. 551, 617 (2005) (Scalia J., dissenting). 13. Ancheta, “Science and Constitutional Fact Finding,” 1128–29, indicating that a “serious problem can arise if a court chooses to selectively ignore relevant research findings that are unsupportive of a legal position, while citing others that are supportive, even if all of the relevant studies are methodologically valid—what might be called a ‘cherry picking’ approach to citation. If the omitted or discounted evidence is prominent and widely circulated, a court’s disingenuousness in failing to cite relevant findings could undermine the legitimacy of its ruling.” 14. Myers, “Roper v. Simmons: The Collision of National Consensus and Proportionality Review,” 986. 15. A casual Westlaw search I conducted on August 17, 2010, revealed the use of the term “cherry-picking” in 1,294 articles. I surveyed the most recent one hundred uses: only two of them referred to the foreign law debate. A similar search revealed the use of the term “cherry-picking” in the opinions delivered in 330 federal cases: there were no references to the foreign law debate among the most recent one hundred of these. 16. Gertner, “The Globalized District Court,” 357. 17. Bentele, “Mining for Gold: The Constitutional Court of South Africa’s Experience with Comparative Constitutional Law,” 224

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18. Lawrence v. Texas, 539 U.S. 558, 598 (2003). 19. Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (Burger C.J., concurring). See Araiza, “Foreign and International Law in Constitutional Gay Rights Litigation,” 483n. 20. Cf. Popper, Conjectures and Refutations. 21. Sitaraman, “Use and Abuse of Foreign Law in Constitutional Interpretation,” 662–3. 22. Turner, “The Relevancy of Foreign Law as Persuasive Authority,” 470–71. I think Turner must have drawn for her concern upon an observation by Justice Scalia to the effect that a judge, seeking to advance his own naked agenda, might say, “I have a citation by an intelligent man in Zimbabwe—or—or anywhere else, and you put it in there. . . . By God, it looks lawyerly!” (quoted by Morris, “Crusaders In Wingtips”). 23. Knight v. Florida, 528 U.S. 990 (1999). 24. I have taken this from the transcript of confirmation hearings in the Washington Post, September 13, 2005. 25. Cohen, “Transcendental Nonsense and the Functional Approach,” 834. 26. Kirby, “Foreign Decisions in Constitutional Adjudication,” 153. 27. Interview reported by Bentele, in “Mining for Gold: The Constitutional Court of South Africa’s Experience with Comparative Constitutional Law,” 238–39. 28. Lee, “Interpreting Bills of Rights,” 147. 29. Cf. Justice Scalia’s remarks about countries which were said to have repudiated the juvenile death penalty but which might have done so only “on paper.” See Roper, 623 (Scalia J., dissenting). 30. Gonzales, “Prepared Remarks, Address at the University of Chicago Law School.” 31. Roper v. Simmons, 543 U.S. 551, 624 (2005) (Scalia J. dissenting): “The basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law—including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself.” 32. Ibid., 627. 33. Cf. Roe v. Wade, 410 U.S. 113 (1973) on abortion rights and Mapp v. Ohio, 367 U.S. 643 (1961) on the exclusionary rule. 34. Buss, “Constitutional Words about Words,” 506. 35. La Forest, “The Use of American Precedents in Canadian Courts,” 213–14 36. Breyer, “Keynote Address,” 267: “Neither I nor my law clerks can easily find relevant comparative material on our own. The lawyers must do the basic work: finding, analyzing, and referring us to that material.” 37. Gonzales, “Prepared Remarks, Address at the University of Chicago Law School.” 38. Markesinis, “National Self-Sufficiency or Intellectual Arrogance?” 315. The reference is Fairchild v. Glenhaven [2002] 1 A.C. 32. 39. Ibid. 40. Breyer, “Keynote Address,” 267. 41. Elena Kagan, Supreme Court Confirmation Hearings, Day 2 (Washington Post, June 29, 2010), 89, available at http://www.washingtonpost.com/wp-rv/ politics/documents/KAGAN HEARINGSDAY2.pdf (last accessed September 1, 2010).

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42. Rahdert, “Comparative Constitutional Advocacy,” 661–62. 43. La Forest, “The Use of American Precedents in Canadian Courts,” 214, citing his own remarks in R. v. Rahey [1987] 1 S.C.R. 588. 44. Markesinis, “National Self-Sufficiency or Intellectual Arrogance?” 305, 306. 45. Cf. Sitaraman, “The Use and Abuse of Foreign Law in Constitutional Interpretation,” 661–62, and Tushnet, “The Possibilities of Comparative Constitutional Law,” 1265–69. 46. Montesquieu, The Spirit of the Laws, 8–9. See Cram, “Resort to Foreign Constitutional Norms in Domestic Human Rights Jurisprudence,” 122. 47. Sanchez, “A Case against Judicial Internationalism,” 216. See also Rubenfeld, “Unilateralism and Constitutionalism.” 48. Hopkinson v. Police [2004] 3 NZLR 704. 49. See Schauer, “Authority and Authorities,” 1931, on “citation” and the decorative and illustrative use of foreign law. 50. See Watson, “Legal Transplants and Law Reform,” 79. 51. Posner, “No Thanks, We Already have Our Own Laws.” 52. Cf. Rivlin, “Thoughts on Referral to Foreign Law, Global Chain-Novel, and Novelty,” 3: “In order to leverage and use foreign law in a meaningful way, one must hold considerable knowledge and expertise in both foreign and local law.” 53. Sitaraman, “The Use and Abuse of Foreign Law in Constitutional Interpretation,” 662. See also Alford, “The United States Constitution and International Law,” 66: “In a subject area where the Supreme Court is woefully lacking in basic knowledge, the sources at its ready reference were materials that international legal experts selectively chose to make available to it.” 54. Bentham, Of Laws in General, 185. 55. Ibid., 186. 56. Ibid., 187. 57. Cram, “Resort to Foreign Constitutional Norms in Domestic Human Rights Jurisprudence,” 121, citing Roy, “An Empirical Survey of Foreign Jurisprudence and International Instruments in Charter Litigation,” 110. 58. Rahdert, “Comparative Constitutional Advocacy,” 570. 59. O’Connor, “Keynote Address,” 351. 60. Rahdert, “Comparative Constitutional Advocacy,” 606. 61. See also Ramsey, “International Materials and Domestic Rights,” 69. 62. Ginsburg, “The Value of a Comparative Perspective in Judicial Decisionmaking,” 220. See also Koh, “The Globalization of Freedom,” 310. 63. Perju, “The Puzzling Parameters of the Foreign Law Debate,” 208. 64. Langbein, “The Influence of Comparative Procedure in the United States,” 546. 65. Breyer, “Keynote Address,” 267. See also Sellers, “The Internationalization of Law and Legal Education ,” 1. 66. Posner, “Statutory Interpretation—in the Classroom and in the Courtroom,” 802, and “The Material Basis of Jurisprudence,” 20n. 67. Posner, Problematics of Legal and Moral Theory, 309. 68. Quint, “The Comparative Law of Flag Desecration,” cited in Hopkinson at §54. 69. Larsen, “Importing Constitutional Norms from a ‘Wider Civilization.’ ” 1301.

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70. Racusin, “Looking at the Constitution through World-Colored Glasses,” 942: “On balance, it is better for a judge to selectively use world knowledge than utterly deny it.” See Cohen, “Transcendental Nonsense and the Functional Approach,” cited above, at text accompanying note 25 in this chapter. 71. Mill, “Utilitarianism,” 296.

Chapter Eight. Legal Civilizations 1. Thompson v. Oklahoma, 487 U.S. 815 (1988), at 830–1 (Stevens J, for the plurality). 2. This paragraph and the next are adapted from Waldron, “Ius Gentium: A Defense of Gentili’s Equation.” 3. Gentili, De Iure Belli, bk. I, chap. 1, 8–9. 4. Roper v. Simmons, 543 U.S. 551, 577 (2004) (Kennedy J., for the Court.). 5. See, e.g., Ackerman, “The Rise of World Constitutionalism,” 772–73, and Minda, “Law, Justice, and Cosmopolitan Jurisprudence,” 647. 6. Trop v. Dulles, 356 U.S. 86, 102 (1958) (Warren C.J., for the Court). 7. Brand, “Judicial Review and United States Supreme Court Citations to Foreign and International Law,” 431. 8. Kingsbury, “Sovereignty and Inequality,” 605. 9. Ibid., quoting Oppenheim, International Law, 1:31. 10. Blackstone, Commentaries, 4:53 (bk. IV, chap. 5). 11. Taney C.J. in Beers v. Arkansas, 61 U.S. 527, 529 (1857). 12. United States v. Perkins, 163 U.S. 625, 627 (1896): “While the laws of all civilized States recognize in every citizen the absolute right to his own earnings, and to the enjoyment of his own property, . . . the right to dispose of his property by will has always been considered purely a creature of statute and within legislative control.” For this citation, I am grateful to Calabresi, “The Supreme Court and Foreign Sources of Law,” 831. 13. See Justice John Marshall Harlan’s dissent in Lochner v. New York, 198 U.S. 45, 71 (1905), observing that laws regulating working hours were “a subject of serious consideration among civilized people.” For this citation, I am grateful to Turner, “The Juvenile Death Penalty and the Court’s Consensus-Plus Eighth Amendment,” 187. 14. In The Paquete Habana, 175 U.S. 677, 700 (1900), the U.S. Supreme Court held that in international issues, “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations”. 15. Thus in a textbook published in 1810, Zephaniah Swift, A Digest of the Law of Evidence, in Civil and Criminal Cases, and a Treatise on Bills of Exchange, and Promissory Notes, ix, it was said that “in questions of commercial law, the decisions of Courts, in all civilized, and commercial nations, are to be regarded, for the purpose of establishing uniform principles in the commercial world.” For this citation, I am grateful to Clark, “Constitutional Structure, Judicial Discretion, and the Eighth Amendment,” 1184. 16. In Sosa v. Alvarez-Machain, 542 U.S. 692, 725–26 (2004) (Souter J., for the Court), it was said that the recognition of any new cause of ATS action “based on the present-day law of nations [should] . . . rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.”

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17. The Antelope, 23 U.S. (10 Wheat.), 114–15. 18. Dred Scott v. Sandford, 60 U.S. 393 (1856). For this citation, I am grateful to Cleveland, “Foreign Authority, American Exceptionalism, and the Dred Scott Case,” 420. 19. Dred Scott, 426, cited by Farber, “The Supreme Court, the Law of Nations, and Citations of Foreign Law,” 1350. 20. Another example might be the use of Eurocentric militarist standards to establish rights to territory through conquest of indigenous peoples: see Williams, “The Algebra of Federal Indian Law,” 252–53. 21. For yet another egregious example, see the characterization of sexual relations between people of different races as “revolting to the senses . . . [and] peculiarly contrary to the universal teachings and practice of the white society to which [the defendant] belonged” in Sargent v. Sargent, 114 A. 428, N.J.Ch., (1920) 429. I am grateful to Carol Sanger for this reference. 22. Shafirov, A Discourse Concerning the Just Causes of the War between Sweden and Russia, 2, quoted by Mälksoo, “The History of International Legal Theory in Russia,” 217. 23. Knight v. Florida, 528 US 990 (1999) (Breyer J., dissenting). For the “tactical error,” see Justice Breyer’s remarks reported in Dorsen, “The Relevance of Foreign Legal Materials in U.S. Constitutional Cases,” 528: “I may have made what one might call a tactical error in referring to a case from Zimbabwe . . . not the human rights capital of the world.” For criticism, see Posner, “Foreword: A Political Court,” 89: “The Supreme Court would not only be making a juridical error, but also acting imprudently, if it asked the American people . . . to accept that decisions by the Supreme Court of Zimbabwe, one of the world’s most disordered nations, should influence decisions by our Supreme Court.” See also Bazelon, “What Would Zimbabwe Do?” 24. The phrase is from Koh, “A Community of Reason and Rights,” 602. Needless to say, it is not Koh’s own view. 25. See Turner, “The Relevancy of Foreign Law as Persuasive Authority and Congress’s Response to its Use,” 471: “In contrast to the potential ‘Zimbabwe’ situation or a citation of the law of any other nation, another concern is that judges may begin to practice a certain ‘Eurocentrism’ by acknowledging European authorities while ignoring the rest of the world.” 26. Kingsbury, “Sovereignty and Inequality,” 605, quoting Oppenheim, International Law, 1:31. 27. Roper v. Simmons, 543 U.S. 551, 577 (2004) (Kennedy J., for the Court). 28. On the connection between the Rule of Law and the concept of a legal system, see Waldron, “The Concept and the Rule of Law.” But see Raz, “The Rule of Law and its Virtue” for an argument that a system has to be a legal system before any question of the application of the Rule of Law can arise. 29. See also Gonzales, “Prepared Remarks, Address at the University of Chicago Law School”: “It would be perilous to rely on the laws of a country without understanding the extent of freedom and democracy there.” 30. Roper, 623 (Scalia J. dissenting). 31. Fuller, The Morality of Law, 81–91. 32. See, ibid., 38–39, and Raz, “The Rule of Law and its Virtue.” 33. See Waldron, “Procedural Values and the Rule of Law” and “Law, Status and Self Control.”

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34. See also the discussion in Waldron, ’Transcendental Nonsense and System in the Law,’ 30–40. 35. The philosopher who has done the most to develop this theme is Ronald Dworkin, particularly in Law’s Empire. 36. Cf. Tebbe and Tsai, “Constitutional Borrowing,” 485 ff. 37. Thompson v. Oklahoma, 487 U.S. 815 (1988) 869 (Scalia J., dissenting). 38. See Waldron, “Can there be a Democratic Jurisprudence?” 39. See Beitz, Political Equality, chap. 4, and Dworkin, Freedom’s Law, 25–26. 40. See also Article 1 of the Canadian Charter of Rights and Freedoms and section 36 of the South African Bill of Rights. 41. See the discussion in Chander, “Globalization and Distrust,” 1235, suggesting that countries have a responsibility to make one another more just. 42. Rawls, The Law of Peoples, 62 ff. 43. See Waldron, Law and Disagreement, 1 et passim. 44. Knight v. Florida, 528 US 990 (1999) (Breyer J., dissenting from denial of certiorari). 45. Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General [1993] 1 Zimbabwe L.R. 239. 46. Cf. Lee, “Interpreting Bills of Rights: The Value of a Comparative Approach,” 146: “Just as scientists are expected to consider findings they have reason to trust and not look to the work of suspect or disreputable laboratories, a ius gentium inquiry may similarly restrict itself to a consensus among ‘civilized’ or ‘freedom-loving’ countries.” 47. Rochin v. California, 342 US 165, 169 (1952). See also Justice Frankfurter’s reference to “an Anglo-American regime of ordered liberty” in Duncan v. Louisiana, 391 U.S. 145, 149 (1968), and the references to the “English-speaking world” and “English-speaking peoples” in Poe v. Ullman, 367 U.S. 497, 548 (1961) (Harlan, J., dissenting) and Adamson v. California, 332 U.S. 46, 67 (1947) (Frankfurter J., concurring). 48. Rochin, 176 (Black, J., concurring). 49. Roper, 626 (Scalia J., dissenting). Justice Scalia went to say, “It is of course true that we share a common history with the United Kingdom . . . [But] [i]t is beyond comprehension why we should look . . . to a country that has developed, in the centuries since the Revolutionary War—and with increasing speed since the United Kingdom’s recent submission to the jurisprudence of European courts dominated by continental jurists—a legal, political, and social culture quite different from our own” (ibid., 626–7). 50. Vitoria, “On the American Indians,” 239–51. 51. Ibid., 263, 269–70. 52. His interesting discussion of cannibalism is a case in point: see Vitoria, “On Dietary Laws, or Self-Restraint,” 207–30. 53. Hart, “Positivism and the Separation of Law and Morals,” 623. 54. Hart, The Concept of Law, 193–200. Others have called these the circumstances of justice. See Rawls, A Theory of Justice, 109–12. See also David Hume, A Treatise of Human Nature 484–501 (bk. III, pt. ii, sect. 2) and An Enquiry Concerning the Principles of Morals, 183–92 (sect. III, pt. i). 55. Hart, “Positivism and the Separation of Law and Morals,” 623. (For differences of “culture, climate and temper,” see also the discussion of Montesquieu in section 3 of chapter 7.)

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56. These paragraphs are adapted from Waldron, “Teaching Cosmopolitan Right,” 30–36, and “Tribalism and the Myth of the Framework.” 57. As Karl Popper put it in The Open Society and its Enemies, 1:176, “Commerce and a new class involved in trade and seafaring” present perhaps “the worst danger to the closed society.” 58. Jared Diamond’s description of the dissemination of alphabetic writing provides a good example: Diamond, Guns, Germs, and Steel, 215–38. Left to their own devices, many cultures in time probably would have developed alphabetic writing. Writing solves a number of problems: it makes a number of other practices possible and more efficient; it is almost always to the advantage of the power-bearing strata of a society; and though its invention is certainly very difficult, there are no particular obstacles that present themselves as much more of a problem for some cultures than for others, at least above a certain level of prosperity. In fact, we know that writing was invented independently in no more than four, perhaps in as few as two, distinct societies; and that alphabetic writing was invented only once. Human curiosity and a pragmatic eagerness to learn from other cultures and adopt or adapt their ways meant that the invention of alphabetic writing in one place simply preempted its invention anywhere else. 59. See Walford, “An Outline History of the Hanseatic League,” 82. 60. Berman, Law and Revolution, 85–119, 199–224. 61. See Waldron, “Teaching Cosmopolitan Right,” 37–8. 62. Thompson, Whigs and Hunters: The Origin of the Black Act, 263. 63. Verger, “The Universities and Scholasticism,” 263. 64. See Berman, Law and Revolution, 120–64, especially 161–62 on the transnational character of legal science. 65. Hart, The Concept of Law, 203–4. 66. See Witte, “A Dickensian Era of Religious Rights.” 67. See Gentili, De Iure Belli Libri Tres, and Grotius, The Rights of War and Peace. 68. See Dworkin, Taking Rights Seriously, 40, arguing that it is not possible to “devise any formula for testing how much and what kind of institutional support is necessary to make a principle a legal principle, still less to fix its weight at a particular order of magnitude. We argue for a particular principle by grappling with a whole set of shifting, developing and interacting standards (themselves principles rather than rules) about institutional responsibility, statutory interpretation, the persuasive force of various sorts of precedent, the relation of all these to contemporary moral practices, and hosts of other such standards.” 69. See Ocalan v. Turkey (2005) 41 E.H.R.R 45; cf. Protocol 6 to the ECHR (as amended by Protocol 11). 70. S v. Makwanyane, 1995 (6) BCLR 665, especially §§22–33 (Langa J., concurring). See also Roux, “Principle and Pragmatism on the Constitutional Court of South Africa,” 118. 71. See Hart’s use of the term “primitive” in The Concept of Law, 3–4, 91–92, 291–92. For even more disreputable terminology, see Popper’s account of “tribalism” and “closed” societies in The Open Society and Its Enemies, 171–72. 72. See Markovits, “Law or Order—Constitutionalism and Legality in Eastern Europe,” 513. 73. See Ginsburgs, “ ‘Socialist Legality’ in the U.S.S.R. since the XXth Party Congress,” 546.

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74. Analysis here is complicated by what An-Na’im, in “Religion, the State, and Constitutionalism in Islamic and Comparative Perspectives,” 830, calls the “significant theological, historical, political, and other differences among Muslim-majority countries” In his view (ibid., 830–31), “there is no coherent or agreed-upon definition of what is ‘Islamic’ when applied to a state or government. If it is a matter of being a Muslim-majority country, this is as true of Indonesia and Egypt, as it is of Senegal and Turkey; yet these countries are too different to be grouped together in any coherent sense. Even among so-called Islamic states, how can the same term apply to Iran and Saudi Arabia, when the Shia of Iran regard the Wahabi doctrine prevalent in Saudi Arabia as heresy, and Saudis think the same of the Twelvers’ Shia doctrine dominant in Iran today?” 75. Schmitt, Der Nomos der Erde, 185. For this citation, I am indebted to Buss, “The Preah Vihear Case and Regional Customary Law,” 118. 76. Ahmad, “The Modern Concept of Secularism and Islamic Jurisprudence,” 93, quoting Boisard, “On the Probable Influence of Islam on Western Public and International Law.” 77. Cf. Bassiouni et al. “Islamic Law,” 56: “Much has been said of the religious character of Islamic law. Islamic law is a religious law only in the sense that its basic ethical grounds and some of its general principles are to be found in the Quran and the pronouncements of the Prophet. Beyond that, the corpus of Islamic law as it developed over the ages is manmade in the sense that it resulted from the efforts of the jurists of the various schools of law. If civil law can be described as a legislator’s law as to its source and common law as a judge’s law, then Islamic law is a jurist’s law.” 78. Ford, “Siyar-Ization and its Discontents,” 505. 79. Cravens, “The Future of Islamic Legal Arguments in International Boundary Disputes between Islamic States,” 543. 80. Ford, “Siyar-Ization and its Discontents: International Law and Islam’s Constitutional Crisis,” 512. 81. For family law reform, see ibid., 516–18. For constitutional law, see An-Na’im, “Religion, the State, and Constitutionalism in Islamic and Comparative Perspectives,” 831–44. 82. See, e.g., Khadduri, The Islamic Law of Nations: Shaybani’s Siyar, and Bouzenita, “The Siyar: An Islamic Law of Nations?” 83. Cf. Bennoune, “As-Salamu ‘A laykum? Humanitarian Law in Islamic Jurisprudence,” 635–36: “An-Na’im has written that Islamic Shari’a and contemporary international law are inherently irreconcilable. ‘Shari’a is in direct conflict with the Charter of the United Nations because, whereas that charter prohibits the use of force in international relations except in self-defense, Shari’a sanctions the use of force to propagate Islam or to uphold its integrity in another Muslim country. Moreover, Shari’a’s underlying theme of a permanent state of war with, and nonrecognition of, non-Muslim states repudiates the entire basis of modern international law.’ He concludes that this very nature of jihad makes the Shari’a system incompatible with contemporary international law and that this impacts the foreign policy of Islamic countries today. . . . One could question whether or not this is an accurate portrayal of the international relations of modern Muslim states. As An-Na’im himself notes, all modern Muslim countries are members of the United Nations and are bound by the U.N. Charter” (Bennoune is quoting Abdullah An-Na’im’s book Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law, 145. I should add that

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An-Na’im’s position favors a reformation of Islamic law in light of the differences he discerns, not a reaffirmation of it.) 84. See Herder, “On the Characters of Nations and Ages,” 118–20. 85. Ewald, “Comparative Jurisprudence,” 2020. 86. Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence, 27. 87. See Reimann, “Nineteenth Century German Legal Science,” 853, 687. 88. For the role of Volksgeist in Savigny’s theory, see Patterson, “Historical and Evolutionary Theories of Law,” 687, and also Posner, “Savigny, Holmes, and the Law and Economics of Possession,” 536. 89. Patterson, “Historical and Evolutionary Theories of Law,” 687. 90. Cf. Posner, “Savigny, Holmes, and the Law and Economics of Possession,” 535, describes him as one of the most important figures in the history of legal thought but laments that “today—in America at any rate—outside of a tiny subset of legal historians, he is barely a name. It seems to me that we lose something when we forget our intellectual ancestors so thoroughly.” 91. Harding, “Comparative Reasoning and Judicial Review,” 411. 92. Patterson, “Historical and Evolutionary Theories of Law,” 689. 93. See, e.g., Allan and Huscroft, “Constitutional Rights Coming Home to Roost?” 34. 94. Rao, “On the Use and Abuse of Dignity in Constitutional Law,” 211–12, quoting Whitman, “The Two Western Cultures of Privacy: Dignity Versus Liberty,” 1160. 95. Levinson, “Looking Abroad when Interpreting the U.S. Constitution: Some Reflections.” 361. 96. Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence, 27. 97. Ibid., 54. 98. Ewald, “Comparative Jurisprudence,” 2020. 99. Allan and Huscroft, “Constitutional Rights Coming Home to Roost?” 36. 100. See Waldron, Law and Disagreement, 224–27. 101. Hoffman, “Human Rights and the House of Lords,” 165. I am grateful to Philip Alston for this reference. 102. Ibid. 103. Ibid. 104. Berlin, Liberty, 213, and The Proper Study of Mankind, 238. 105. Popper, Conjectures and Refutations, 137. 106. New States Ice Co. v. Liebmann, 285 U.S. 262 (1932), 311 (Brandeis J., dissenting). 107. See Posner, The Problematics of Legal and Moral Theory, 131–32. But we should consider also the discussion about whether experimentation becomes more suspect the more it leans against individual liberty. Cf. Brennan, “The Bill of Rights and the States,” 550–51: “State experimentation cannot be excoriated simply because the experiments provide more rather than less protection for civil liberties.” 108. Nozick, Anarchy State and Utopia, xi. See note 18 to chapter 1, above.

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Index

Abortion, 9, 137–38, 176 Ackerman, Bruce, ix, 253 Ackerman, Laurie, x, 104, 243 Accountability, 142–43 Adamson v. California, 255 Adversarial system, 176, 177–80, 229 Agent-relativity, 127, 245 Ahmad, Nehaluddin, 212–13, 257 Air travel, 158–59, 161–62 Aldana v. Del Monte Fresh Produce, 25, 231 Aldisert, Ruggero, 250 Alford, Roger, 22, 41, 104, 142, 230, 242–43, 246, 252 Alien Tort Statute, 24–27, 30–31, 53, 192, 253 Alito, Samuel, 244 Allan, James, x, 105–8, 144–45, 216, 218, 258 Alphabetic writing, 256 Alston, Philip, x, 122, 130, 244, 245, 258 American Law Institute, 71 Amicus briefs, 178 Amnesty International, 8 Ancheta, Angelo, 172, 250 Anderson, Edwin, 34, 232 Anglo-American legal tradition, 187, 201 An-Na’im, Abdullah, 257 The Antelope, 192–93 Appellate structures, 177 Aquinas, Thomas, 38–39, 213 Araiza, William, 251 Arbitrariness, 113 Aristotle, 87–89 Atkins v. Virginia, 13–14 Austin, John, 37, 54, 73–74, 238 Austin, Victor, ix Australian law, 18, 70, 174, 201 Authority, 59–62, 153, 237 Barak, Aharon, x, 55 Barrie, J. M., 55, 236

Bassouni, M. Cherif, 257 Bauer, Gary, 10, 48, 235 Bazelon, Emily, 254 Bederman, David, 33–34, 231, 234 Beers v. Arkansas, 192, 253 Beitz, Charles, 255 Beller, Daniel, ix Bennoune, Karima, 257 Bentele, Ursula, 172, 239, 250, 251 Bentham, Jeremy, 29–30, 50, 74, 119, 183–84, 238 Berger, Klaus, 46, 235 Berkowitz, Roger, 97, 242, 243 Berlin, Isaiah, 220 Berman, Harold, 28, 205, 206, 231, 234, 256 Bewes, Wyndham, 45, 234 Bible, 213 Bicameralism, 164 Bill of Rights, see under United States Constitution Bingham, Thomas, 98–99, 242 Black, Charles, 245 Black, Hugo, 201 Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 53–54, 142–43 Blackburn, Simon, 243 Blackstone, William, 25–26, 30, 35, 98, 192, 206, 232 Boisard, Marcel, 257 Book of Common Prayer, 165 Bouzenita, Anke Iman, 257 Brand, Ronald, 253 Brazilian Constitution, 160–61 Brennan, William, 258 Breyer, Stephen, 8, 14–15, 76, 83, 91, 117, 173, 176, 178–79, 185, 193, 241, 251, 254 British Commonwealth, see Commonwealth of Nations British Empire, 211, 212

281

282

INDEX

Bronaugh, Richard, 126, 245 Burger, Warren, 173 Buschbacher, Sigrid, 243 Bush, George W., 16, 116 Buss, Andreas, 257 Cairns, John, 44, 234 Calabresi, Stephen, 170, 228, 249 Campbell, Tom, x Canadian Charter of Rights and Freedoms, 112, 117, 121, 123, 147, 156, 160–61, 164, 167, 177–78, 181, 255 Canadian law, 17, 67, 79, 163, 201 Cannibalism, 255 Canon law, 205 Carozza, Paolo, 46, 234 Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, 255 Chander, Anupam, 255 Chaskalson, Arthur, x, 239 Checkerboard statutes, 137 Cherry-picking, 9–10, 82, 171–77, 188, 250 Chicago Convention on International Civil Aviation, 158 China, 1, 190, 194, 202, 209, 240 Christianity, 192–94, 207 Church and state, separation of, 176 Churchill, Winston, 90 Cicero, 29, 36, 52 Circumstances of justice, 203 Circumstances of politics, 153–54 Civil aviation statutes, see Air travel Civil Code of Lower Canada, 63, 73 Civil law, 38 Civilized nations, 190–200 Clark, Bradford, 253 Cleveland, Sarah, 254 Coburn, Tom, 179 Code Napoléon, 63, 73, 99 Cohen, Felix, 50, 96, 173–74, 186, 253 Cohen, Harlan, 249 Coke, Edward, 98 Coker v. Georgia, 11 Cold war, 211 Coleman, Jules, ix, 236 Colonization, 204 Comity, 9, 116–17 Common law, 20, 45, 50, 54, 57, 66, 98, 201, 212 Commonwealth of Nations (formerly British Commonwealth), 17–21, 32, 78, 81, 128, 178, 184, 201, 211 Community, 137–39, 196, 216 Comparative and non-comparative justice, 124–26 Comparative law, 184–86 Condorcet, Marquis de, 86–87, 88, 241 Congress, see United States Congress

Congruence of law and official action, 194–95 Connan, François, 38, 233 Consensus, 40, 48, 59, 68, 77, 153, 175, 187, 221; partial, 187–90, 208; see also under Science Consistency, 96–97, 112–17, 123–26, 130–35, 155, 175 Constitution of the United States, see United States Constitution Constitutional law, 57 Constitutions, 157, 169 Convention on the Rights of the Child (U.N.), 8 Cooke, Robin, 128, 245 Cooter, Robert, 234 Cornell, Saul, 171–72, 250 Cosmopolitanism, 135, 205 Council of Europe, 71, 210 Cover, Robert, 99, 242 Coyle, Garrett, 250 Cram, Ian, 117, 244, 252 Cravens, William, 213, 257 Cruelty, 147, 152, 164–67 Culture, 203–4, 210, 215–17 Curiosity, 203–4 Customary international law, see under International law Customary law, 45, 50, 215–16 Czechoslovakia, 211 Databases, 184, 201 Death penalty, 4, 11–16, 26, 92–93, 116, 163, 191, 209–10, 217; and mental illness, 13; see also Juvenile death penalty Death row syndrome, 14–16, 116–17, 199 Declaration of Incompatibility, 146, 158, 170 Declaration of Independence, 22 Defamation, 116 Delahunty, Robert, 236 Democracy, 22, 55, 142–43, 148, 149, 152, 153–54, 155, 168, 196–98, 243 Democratic deficit, 153–54 Dery, George, 250 Developed societies, 200 Diamond, Jared, 256 Dickson, Julie, 230 Differences (between conditions in different countries), 181–82, 203, 214–21 Dignity, see Human dignity Dimatteo, Larry, 234 Dinwoodie, Graeme, 235 Diplomacy, 22, 31, 204 Disagreement, moral, 155, 199, 218, 220–21, 258 Discrimination, 78–80 Dixon, Owen, 45, 234

INDEX

Doctrinal complexity, 67–70 Donoghue v. Stevenson, 19 Dorsen, Norman, 240, 247 Dred Scott v. Sandford, 192–93 Dualism, see Monism versus dualism Dudgeon v. United Kingdom, 7, 226 Due process of law, 116 Duncan v. Louisiana, 255 Dutch empire, 211 Dworkin, Ronald, xi, 23, 28, 54, 61, 218, 236, 237, 238, 241, 243, 247, 255; on integrity, 135–41, 246; on legal principles, 35–36, 64–67, 188, 208, 256; on reliance, 115, 244 Earl, Robert, 63 East Germany, 211 Eichmann, Adolf, 43, 233 Eighth Amendment, 2, 6–7 Einstein, Albert, 104 Elias, Sian, x, 18 Elizabeth II, 19, 57 Ellickson, Robert, 234 Emergency powers, 90, 153–54 Empirical method in law, 89–91,173–4 Engle, Eric, 41 English Bill of Rights (1689), 147, 159–60, 167 English law, 18, 62, 70, 206, 216, 219 Enmund v. Florida, 11 Epstein, Richard, 34, 44, 45, 231, 234 Equality, 218 Erie Railroad Co. v. Tompkins, 6, 25–26, 29, 52–56, 66, 74, 142 Eskridge, William, 238 Europe, 191–93, 201 European Convention on Human Rights, 70, 72, 130, 147, 156, 158, 161, 219 European Court of Human Rights, 7, 15, 69–70, 71–72, 76, 130, 133, 201, 209 European Union, 46, 71, 205 Euthanasia, 89 Evans, Malcolm, 248 Ewald, William, 215, 258 Exclusionary rule, 176 Experimentation, 82–85, 221–23, 258 Exxon Mobil Corp. v. Allapattah Services, 250 Fairchild v. Glenhaven, 178 Fairness, 9, 112, 123–26, 127, 135–36, 152–53, 188 Fallon, Richard, 68, 115, 149, 247 Farber, Daniel, 171–72, 237, 250 Farris, Michale, 227 Federal common law, 28, 66 Federal structures, 53, 137, 222 Federalist Papers, 147, 169, 249 Fedtke, Jörge, 91

283

Feinberg, 124, 245 Felony murder, 11 Fictional law, 49–50, 53 Filártiga v. Peña-Irala, 31 Finnis, John 154, 238 Flag-burning, 109–12, 113, 125–26, 135, 138, 182, 244 Flanders, Chad, 138, 237, 246 Florence, Justin, 171–72, 250 Ford, Christopher, 257 Formalism, 69, 96, 195 Foster v. Florida, 15, 76, 117, 103, 242 Framers (of the US Constitution), 92, 147–50, 151–52, 169, 181 France, Ellen, 109–12, 115, 123, 182, 185, 220, 243 Frank, Jerome, 50 Frankfurter, Felix, 201, 255 Free societies, 196–98 Free speech, 32, 109, 118, 218–19 Frege, Gottlob, 249 French law, 67, 90 Friendly, Henry, 231 Fuller, Lon, 113, 195, 239, 240, 249 Furnes v Reeves, 229 Gaius, 4, 39, 64 Gascoigne, Robert, 242 General common law, 28, 52–54 Generality, 113, 196 Gentili, Alberico, 39–40, 189–90, 207 German law, 143, 150–51 Gertner, Nancy, 172 Ginsburg, Ruth Bader, 22, 83, 184, 227, 230 Ginsburgs, George, 211, 256 Glenn, Patrick, 34, 232 Global community of courts, 129 Globalization, 135 Goldstone, Richard, 78–80, 220, 239 Gonzales, Alberto, 175, 178–79, 228, 254 Gray, David, 248 Gray, John Chipman, 72, 238 Greek philosophy, 34–35, 36 Green, Leslie, 247 Grey, Thomas, 57, 236, 242 Grotius, Hugo, 98, 207 Guaranty Trust Co. of N.Y. v. York, 235–36 Hadley v. Baxendale, 98–99 Hamilton, Alexander, 249 Hanseatic League, 205 Harding, Sarah, 215 Harlan, John Marshall, 192, 253, 255 Harmonization of law 9, 60–61, 77, 112–17, 117–18, 130, 133, 135, 152–54, 173, 187–88, 196, 198, 219

284

INDEX

Hart, H. L. A., 23, 50, 54–56, 68, 196, 235, 236, 238, 241–42, 256; on minimum content of natural law, 203; on rule of recognition, 57, 64, 256; on separation of law and morality, 207 Hastings, Warren, 249 Hate speech, 118, 217 Hausner, Gideon, 43 Hayek, Friedrich, 245 Henkin, Louis, 249 Herder, Johann Gottfried, 215 High Court of Australia, 18 Hitler, Adolf, 90 HKSAR v. Ng Kung-Siu, 110, 243 Hoeflich, M. H., 70 Hoffman, Leonard, 219–21 Holism, 68 Holmes, Oliver Wendell, 52–55, 99, 142–43, 237–38 Holy Roman Empire, 211 Hong Kong, 110–11, 182 Honoré, Tony, 232 Hopkinson v. Police, 109–12, 115, 123, 134–35, 182, 185, 220, 243, 244, 246 Hostis humanis generis, 30–31 House of Lords, 18, 178, 246 Hug, Walther, 232 Huie, Marsha, 235 Human dignity, 79, 103, 119, 216, 218 Human rights, 7, 30, 32, 93, 116, 129, 133–35, 197–98, 207; abstractness of, 218; conflicts among, 219–20; limitation clauses, 69–70, 78, 109–10, 112, 134–35, 139–40, 161, 198 Human Rights Act (U.K.), 72, 81, 112, 120–21, 143, 147, 158, 161, 219 Human Rights Committee (U.N.), 121, 248 Human Rights Watch, 241–42 Humanitarian intervention, 134, 138 Hume, David, 255 Hungary, 211 Huscroft, Grant, 216, 218, 258 IIT v. Vencap, Ltd., 231 Imperialism, 190–91, 205; see also Colonization Indeterminacy, 208 Indexicality, 202 India, 202, 209 Indigenous peoples, 202, 254, 255 Indonesia, 209, 212 Inhuman and degrading treatment, 69–70, 130, 147, 160–61, 163–64 Institutes of Justinian, 4, 35–36, 98, 194, 210 Integrity, 9, 135–49, 152–53 International community, 127–35 International Court of Justice, 59 International Covenant on Civil and

Political Rights (ICCPR), 32–33, 117, 120–21, 129–30, 147, 161–62, 231 International Criminal Court, 31 International law, 7–8, 29, 30–31, 154, 194, 207; customary international law, 53, 56–57, 154, 192 Interpretation, 67, 80, 174 Intertextuality, 158–65 Iran, 1, 4, 190, 194 Islamic law, 212–14, 257 Israeli law, 55 Ius civile, 34 Ius commune, 28, 44–46, 98 Ius gentium (law of nations), ix, 4, 27–29, 31–47, 51, 55–56, 60, 74–75, 77, 98, 151–55, 187–90, 199–200, 202, 207–8, 211, 214, 220–21 Jackson, Robert, 90–92 Jackson, Vicki, ix, 46, 90–92, 228, 234, 240 Jacobs, Struan, 242 Jamaica, 14, 128 Jansen, Nils, 44, 233, 234 Japan, 208 Jefferson, Thomas, 167 Jesus, 202 Judges, 59, 88, 155, 157, 168–69, 172, 197 Judicial activism, 145 Judicial community, 129 Judicial confirmation hearings, 3, 150, 171, 173, 244, 250, 251 Judicial review, 109, 143–51, 247; of executive action, 149; strong versus weak judicial review, 143, 147–48 Juenger, Friedrich, 232, 235 Juries, 118, 222 Jurisprudence, 84 Justice, 96, 99, 107, 114, 198–200 Justice Department, see United States Justice Department Justinian, 183, 213; see also Institutes of Justinian Juvenile death penalty, 1–2, 12–14, 35, 49, 69, 85, 89, 92, 94, 107, 116, 118, 172, 175, 194, 209, 222, 225–26 Kagan, Elena, 179 Kant, Immanuel, 97–98, 127, 242 Kelley, Donald, 43, 233, 234 Kelsen, Hans, 50, 59, 68–69, 235, 236 Kennedy, Anthony, 1, 7, 41, 48, 80, 85, 104, 119, 123, 173, 175–76, 190, 227, 250 Khadduri, Majid, 257 Kindler v. Minister of Justice, 14 Kingsbury, Benedict, 191–92, 254 Kirby, Michael, 83, 128, 174, 234, 240, 245

INDEX

Knight v. Florida, 14, 76, 117, 173, 199 Knowledge, extent of in relation to foreign law, 182–86 Kochan, Donald, 168, 249 Koh, Harold, ix, 22, 33, 116–17, 230, 231, 252, 254 Krasner, Stephen, 249 Kriegler, Johann, 79 Kyl, Jon, 2, 171 La Forest, Gerard, 177–78, 181, 251, 252 Langbein, John, 184–85 Langdell, Christopher Columbus, 96, 242 Larsen, Joan, 41, 185–86 Law, concept of, 50, 54–62, 194 Law and economics, 95 Law merchant, 28–29, 34, 44, 45, 234 Law of nations, see ius gentium Law of nature, see natural law Law reports, 18, 183–84 Law reviews, 185 Lawrence v. Texas, 7, 41, 76, 144, 168–69, 172, Learning from other countries, 4, 60, 76–108, 152, 154–55, 173, 175, 187, 195, 198, 203–4, 220–21 Lee, Jack, 168, 174, 200, 229, 249, 251, 255 Legal analysis, 93–100, 102, 107 Legal argument, 93–100, 196 Legal education, 182–86, 206 Legal evangelism, 206 Legal harmony, see Harmonization of law Legal philosophy, 23 Legal positivism, 17, 37, 41, 42, 54–56, 64, 68–69, 74, 142, 207 Legal principles, see Principles Legal process, 69, 164–65, 195–96 Legal realism, 50, 173–74 Legal systems, 67–70 Legislative history, 172 Legislatures, 2, 58, 86, 88, 156, 164, 195 Legitimacy, 136, 153–54 Leibnitz, Gottfried, 97, 242 Leventhal, Harold, 171 Levinson, Sanford, 19, 230 Lex mercatoria, see Law merchant Liberty, ordered, 197 Life imprisonment, 93, 241–42 Limitation clauses, see under Human rights Living tree approach to interpretation, 156 Lochner v. New York, 192, 253 Locke, John, 99 Luban, David, 233 Luke v. Lyde, 69 MacCormick, Neil, 230 Madison, James, 167, 249 Maine, Henry, 34, 36, 232

285

Majoritarianism, 86, 153, 189 Mälksoo, Lauri, 254 Mandela, Nelson, 78 Maori, 210 Mapp v. Ohio, 251 Margin of appreciation, 159 Markesinis, Basil, 91, 178, 181, 248, Market economies, 200 Markovits, Inga, 211, 256 Marshall, John, 192, 249 Marxism-Leninism, 10, 205 McCormick, John, 250 McCrudden, Christopher, 126, 245 McCulloch v. Maryland, 249 McDowell, Gary, 34, 232 McGinnis, John, 154, 247 McIntyre, William, 163 Medieval period, 38–39, 206 Mediterranean world, 202 Mehinovic v. Vuckovic, 231 Messitte, Peter, 249 Michaels, Ralf, 44, 233, 234 Mill, John Stuart, 186 Minda, Gary, 191, 253 Miscegenation, 254 Mogadara v. Holt, 45, 234 Monaghan, Henry, 149, 244, 247 Monism versus dualism, 72 Montesquieu, Baron de, 181, 255 Moore, Michael, 233 Morality, 74–75, 93–94 Morgan, Rodney, 248 Mugabe, Robert, 48 Mutual Life Insurance Company v. Armstrong, 63, 237 Myers, Wayne, 172, 250 Nagel, Thomas, 245 Narcotics, 81 Native Americans, 202 Natural justice, 5 Natural language, 166 Natural law, 34, 35–40, 41–42, 51, 203, 207; biblical, 213; minimum content of, 203 Nazi Germany, 42–3 Neuman, Gerald, x, 121, 122, 158–59, 245 New States Ice Co. v. Liebmann, 222, 258 New York state law, 73 New Zealand Bill of Rights Act, 18, 109–12, 117, 147, 161, 198, 243, 246 New Zealand law, 14, 17–19, 62, 70, 109–12, 128, 163–64, 201, 246 Newton, Bren, 250 Nicholas, Barry, 33 Non-comparative justice, 124–26 Normativity, 59–62, 64–65 North Korea, 211

286

INDEX

Nozick, Robert, 222–23, 226, 245 Nuremberg trials, 42–43, 233 Objectivity, 41, 107, 243 Ocalan v. Turkey, 209, 256 O’Connor, Sandra Day, 22, 83, 89, 119, 184, 230, 241 Oklahoma, 12 Olympic Airways v. Husain, 159 Oppenheim, Lassa, 192, 194 Organization for Economic Cooperation and Development (OECD), 200 Originalism, 92, 147, 149, 151, 156, 166–67, 171–72 Ottoman Empire, 191–92 Pakistan, 1, 190, 194 Palmer, V. V., 232 Papacy, 205 The Paquete Habana, 192, 253 Parliament, 90, 168 Patterson, Edwin, 215–16, 258 People v. Daley, 229 Perju, Vlad, 24, 59, 184, 231, 233, 236, 252 Persuasive authority, 21, 61–62, 84, 188 Pildes, Richard, 242 Piracy, 26, 30–31 Planned Parenthood of S.E. Pennsylvania v. Casey, 119, 149 Poe, Ted, 235 Poe v. Ullman, 255 Poland, 211, 240 Political obligation, 136, 138 Popper, Karl, 221, 243, 251, 256, 258 Portugese empire, 211 Positive law, 2, 35, 38 Positivism, see Legal positivism Positivization, 121–22; dual positivization 158–59 Posner, Eric, 57–58, 82, 86, 170, 239–40, 241, 249 Posner, Richard, 41, 51, 84, 91, 93, 182, 185, 222, 254, 258 Post, Robert, ix, 138–39 Postema, Gerald, 248 Practicability, 90–93, 195 Praetor peregrinus, 33, 43, 47, 50, 232 Pragmatism, 9, 60, 114–17 Pratt v. Attorney General of Jamaica, 14, 128, 245 Precedent, 21, 22–23, 61, 84, 112, 114–15, 136–37, 147–52, 172, 173, 177, 180, 246 Predictability, 114 Prerogative power, 78–79 President of the Republic of South Africa v. Hugo, 78–80, 98, 135, 145, 220, 238, 246

Price v. Time Inc., 250 Principles, 35–36, 57, 63–67, 153, 188 Printz v. United States, 91, 241 Privy Council (Commonwealth), 14–15, 18–19, 128 Property, 33, 119, 192 Prospectivity, 114 Quint, P.E., 252 Quran, 213 R. (on the application of Purdy) v. DPP, 238 R (on the application of Smith) v. Secretary of State for Defence, 81 R. v. Bain, 17–18 R. v. Rahey, 252 R. v. Smith, 163 R. v. Williams, 81 Race, 192–94 Racusin, Philip, 186, 253 Rahdert, Mark, 180, 184, 252 Ramsey, Michael, 252 Rao, Neomi, 216, 258 Rape, 11, 13, Raphael, Thomas, 139, 246 Rawls, John, 188, 199, 242, 255 Raz, Joseph, 50, 58, 61, 62, 65, 68, 133–34, 153, 235, 236, 237, 238, 254 Realism (in international law), 58 Reason, 108, 220–21 Reciprocity, 124–25,139 Reference re s. 94(2) of Motor Vehicle Act (British Columbia), 248 Reflective equilibrium, 188 Refugee camp analogy, 131–32 Rehnquist, William, 13–14, 89, 102, 250 Reimann, Mathias, 215, 258 Relativism, 16, 46, 206 Resnick, Judith, 249 Respect, 153–54 Riggs v. Palmer, 28, 62–67, 72–73, 136, 231, 237 Right answer thesis, 105–7 Rights as trumps, 139–40 Rights-bearers, 131–35 Rivlin, Eliezer, 140, 246, 252 Roberts, John, 3, 150–51, 171, 173 Rochin v. California, 201 Roe v. Wade, 251 Roman empire, 33–35, 43–44 Roman law, 3–4, 33–35, 50, 63, 202 Roper v. Simmons, ix, 1, 4, 7, 9–10, 21, 41, 48–49, 59, 69, 72–73, 76, 80, 82, 85, 89, 92, 104, 123, 144–45, 168–69, 172, 175–76, 178, 187, 190–91, 194, 211, 222, 230, 250; facts in, 225–26 Rossiter, Clinton, 91 Roux, Theunis, 256 Roy, B., 252

INDEX

Rubenfeld, Jed, 122, 154, 169, 245, 247, 252 Rule of law, 79, 113–14, 119, 194–96, 254 Rule of recognition, 54–55 Rules, 64–65 Russia, 130, 193 Rutherglen, George, 236 Ryan, Meghan, 160, 248 S v Makwanyane and Another, 15, 209, 256 S v Williams and Others, 248 Sanchez, Ernesto, 181 Sanger, Carol, xi, 238, 254 Santayana, George, 171 Sargent v. Sargent, 254 Satanism, 10 Saudi Arabia, 1, 190, 194 Saunders, Cheryl, 229 Savigny, Frderick Charles von, 5, 56–57, 215–16, 217–18, 226 Scalia, Antonin, x, 12–13, 51, 53–54, 81, 86–87, 101, 108, 142, 144, 163, 165, 169–70, 172–73, 176, 196–97, 216–17, 220, 227, 230, 241, 248, 249, 251, 255; on Alien Tort Statute, 24–27; dissent in Roper v. Simmons, 8–10, 23, 82, 194, 201; originalism, 92, 167; textualism, 155–57, 167, 171 Schauer, Frederick, 10, 65–6, 229–30, 237, 252 Schlegel, John, 242 Schmitt, Carl, 212 Science, 77, 85, 100–108, 200, 221, 243; scientific consensus, 100–108, 221; scientific fallibility, 105 Scots law, 19, 44 Secondary rules, 55 Secretary for Justice (N.Z. Central Authority) v. HJ, 229 Security Council (UN), 130 Seipp, David, 169, 249 Sellers, Mortimer, 252 Sentencing, 124 September 11, 2001 (9/11), 16 Shafirov, Peter, 193 Shakespeare, William, 226 Shari’a, 212; see also Islamic law Shklar, Judith, 133, 245 Simmons, Christopher, 1 Singapore, 208, 229 Sitaraman, Ganesh, 85, 86, 173, 181, 183, 240, 241, 251, 252 Slaughter, Anne-Marie, 129, 244 Slavery, 37, 192–93 Slye, Ronald, 233 Smith, Stephen, 172, 250 Social science 90–91 Socialist legality, 211–12

287

Soering v. United Kingdom, 116–17 Somerset v. Stewart, 98–9 Sosa v. Alvarez-Machain, 24–7, 53, 144, 192, 235, 247, 253 Sotomajor, Sonia, 83 Sources of law, 72 Souter, David, 192, 253 South African Constitution, 78, 79–80, 117, 143, 147, 161, 201, 239, 240, 255 South African Constitutional Court, 78–80, 145, 163, 209 South Korea, 209 Southern Pacific Co. v. Jensen, 52, 235 Sovereignty, 75, 143, 168–70, 207 Soviet Union, see Union of Soviet Socialist Republics Spanish empire, 211 Stair, James, 234 Stalin, Josef, 10, 59, 211, 236 Stanford v. Kentucky, 13 Stare decisis, 22–23, 62, 64, 112, 115, 136–37, 149–50, 177 State v. Schleuter, 110, 244 Statelessness, 127–28, 191 Statutory interpretation, 156 Stone, Suzanne, 232 Story, Joseph, 52 Subjectivity, 188 Sunstein, Cass, 82, 86, 170, 239–40, 241, 249 Supreme Court, see United States Supreme Court Surowiecki, James, 241 Swift, Zephaniah, 192, 253 Swift v. Tyson, 28–29, 52, 66, 69 Systematicity, 68, 195, 238 Taiwan, 208 Taney, Roger, 192–93 Taunoa v. Attorney-General, 18, 238 Tebbe, Nelson, 113, 196, 255 Teitel, Ruti, 34, 232 Terrorism, 16 Texas, 160 Texas v. Johnson, 109–10, 115, 243 Textualism, 147, 155–67, 171, 249 The Antelope, 192–93 The Paquete Habana,192, 253 Thomas, Clarence, x, 14–15, 103, 117, 145, 147, 173, 242 Thompson, E. P., 205–6 Thompson v. Oklahoma, 12–13, 73, 187, 196–97, 238, 255 Tinkerbell, 55, 236 Tolkein, J. R. R., 49, 53 Toobin, Jeffrey, 244 Torts, 30 Torture, 16, 116

288

INDEX

Trade, 204–5 Translation, 160, 166 Treaties, 122, 158–59 Treating like cases alike, 123–35, 196; agency issue in, 126–35; see also Consistency and Harmonization of law Tribalism, 211, 256 Trnavci, Genc, 232 Trop v. Dulles, 127–28, 191, 228 Tsai, Robert, 113, 196, 255 Tuck, Richard, ix, 233 Turner, Ronald, 173, 193, 251, 253, 254 Tushnet, Mark, 10, 169, 181, 227, 252 Ulpian, 36–37 UNIDROIT, 46 Uniform Commercial Code, 71–72 Union of Soviet Socialist Republics (USSR), 211; see also Russia United Kingdom, 21, 72, 90, 201, 218–22, 230 United Nations, 8, 175 United States, 120, 143, 162 168, 201, 216, 222; legal exceptionalism, 5, 170, 217 United States Circuit Courts of Appeal, 164 United States Congress, 10, 79–80, 80–81, 147, 150, 155, 168 United States Constitution, 3, 7, 25, 57, 72, 79–80,112, 120–23, 137–38, 145–46, 151, 162, 169–70, 182–83, 192, 247; Amendment process, 164–65; Bill of Rights, 120–23, 163, 177–78; Eighth Amendment, 6–7, 146, 147, 152, 157, 160, 162, 164, 167, 172, 225–26; First Amendment, 176, 182; Fourteenth Amendment, 7; Second Amendment, 166; unwritten elements of, 57 United States Justice Department, 178–79 United States Supreme Court, 1–3, 6–16, 21–22, 69, 120, 142, 172 United States v. Eichman, 111, 243 United States v. James Daniel Good Real Property, 250 United States v. Perkins, 192, 253 Universal Declaration of Human Rights (UDHR), 119, 120 Universality, 32, 35, 37, 117–20 Universities, 206 Utilitarianism, 37 Utz, Stephen, 34, 232

Valla, Lorenzo, 39, 233 Value-pluralism, 220–21 Vattel, Emer de, 30 Verger, Jacques Vieira, Edwin, 10 Vitoria, Francesco de, 39, 202 Voltaire (François-Marie Arouet), 219 Voluntaristic conceptions of law, 108, 195 Wald, Patricia, 170, 250 Waldron, Jeremy, 163–64, 231, 236, 237, 238, 240, 241, 242, 243, 244, 247, 248, 249, 253, 255; cosmopolitanism, 256; on disagreement, 153, 258; opposition to judicial review, 143–45; on rule of law, 196, 254 Walford, Cornelius, 256 Walker, Neil, x, 9, 227 War, 204; laws of, 40, 207 Warren, Earl, 191, 228 Washington v. Glucksberg, 76, 89, 102, 227 Watson, Alan, 182, 252 Weber, Max, 57, 217 Wechsler, Herbert, 108 Weimar constitution, 90 Weinberg, Louise, 236 Weinrib, Ernest, 238 Well-ordered societies, 199 Wells, Michael, 238 Westphalian system, 168 Whitman, James, 216, 232, 258 Wilke, Christiane, 233 Wilkerson v. Utah, 228 Will, see Voluntaristic conceptions of law Williams, Robert, 254 Witte, John, 46, 207, 233, 234, 256 Wolff, Hans Julius, 232 World law, 28, 66 World War II, 90, 218 Yale Law School, ix, 190–91 Yemen, 1, 190, 194 Yoo, John, 236 Young, Ernest, ix, 85–86, 89, 240 Young v. Police, 18 Youngstown Sheet & Tube Co. v. Sawyer, 90–92 Yugoslavia, 211 Zimbabwe, 14–15, 41, 48, 173, 193, 199, 235, 254 Zimdahl, Stephanie, 262 Zuckert, Michael, 232