Dan Kahan, of Georgetown’s Exploring International Law blog, posted a link to the AP coverage (with excerpts) of Justice Ginsburg’s recent remarks at a recent New York City Bar Association reception. The lecture, which was given by Mary Robinson, former president of Ireland, was in Justice Ginsburg’s honor. Justice Ginsburg remarked: “I will take enlightenment wherever I can get it…I don't want to stop at a national boundary.”
How can we interpret the justice’s remarks in light of the current debate on the matter of citing to foreign law. Truly, I don’t know how to interpret the justice’s mention of enlightenment. For one, I find it an interesting choice of words. If we assume the common usage of “enlightenment,” then the justice most probably meant learning, “education that results in understanding and the spread of knowledge.”
In her recent article, which I posted about here, Mary Ann Glendon suggested that this process of “learning” is selective, and I will add results-oriented: “The problem is not reference to foreign law: It is how foreign law is used by judges who usurp powers reserved under the Constitution to the people and their elected representatives, and whose desire to "learn" is limited to finding arguments in support of conclusions that have little constitutional warrant. The learning process of the foreign law enthusiasts, moreover, is selective.”
Glendon then quotes Scalia’s take that those who cite to foreign law are merely “looking over the heads of the crowd and picking out their friends.” That is to say, in light of Justice Ginsburg’s comment, that those who cite to foreign law are not so much open to the diversity of law on any topic but choose, instead, to focus on those foreign laws that lend support to a pre-determined result. This is explained by Glendon later in her piece that those who cite to foreign law ignore the diversity and difference in foreign laws: “They have shown no disposition to explore why most democracies take a different view from theirs on exclusion of illegally obtained evidence, regulation of abortion or separation of church and state.”
Given the diversity in and of foreign law, enlightenment to/of others’ ways is perhaps a pretext to add support not otherwise lent by our domestic law. That conclusion is, to be sure, quite cynical, but not improbable. As Glendon, whose expertise is in comparative law, suggests, there is a definite difference in the way other legal systems conceive the rules of evidence, regulate abortion, or how religion and government should interplay. Those justices who’ve taken to citing foreign law have not taken any care to account for the foreign law in opposition to their opinion/holding. A natural conclusion is that citing to foreign law, as it is practiced, is self-serving and results-oriented. This betrays the semantics of Justice Ginsberg’s comment, which referenced enlightenment, not a results-oriented endeavor.
The next topic I’m interested in exploring is how we can apply the idea of incommensurability to the relevance of foreign law to our legal system.
The case that started this whole controversy, however, did not involve selective citation to foreign law that only supported the result the author was advocating. Kennedy was recognizing that there is no other western democracy that executes juveniles. Surely that fact might persuade an audience executing juveniles is "cruel and unusual" punishment. In short, the problem isn't with citation to foreign law. Your complaint is with the persuasiveness of any particular citation. So don't tell judges and lawyers they shouldn't cite to foreign law. Rather, if you find the citation unpersuasive (because, for example, it is selective), point it out. Law is rhetoric and argumentation, not science. If something is persuasive, it's persuasive.
Posted by: Peter Friedman | Monday, October 03, 2005 at 02:11 PM