More contributions to the debate on the use of comparative law in constitutional cases at the US Supreme Court, via ListlessLawyer (see sidebar). One is an excellent article by professor Kenneth Anderson in the current issue of Policy Review on justifications for the use of foreign decisions. One especially interesting observation he offers is that the debate between the Justices (Scalia vs. Breyer, Kennedy and several others) has sofar taken place mostly on the level of theories of judicial decisonmaking, eshewing larger debates on sovereignty within political theory. The second is this paper on SSRN, which I have not yet read, by Eugene Kontorovich of the University of Chicago School of Law. This is from the abstract:
The oft-made argument that Declaration supports American judges looking to foreign law is based on lifting the relevant passage from its textual and historical context. In fact, the Declaration does not remotely suggest that Americans should follow or adopt the “opinions of mankind.” To the contrary, it shows that we should follow our own opinions, even when they diverge from the dominant views of Europe. Indeed, throwing off the rule of a sovereign monarch contradicted the dominant opinion of mankind. Thus the Declaration takes the view that all we owe to other nations is to explain our actions to them.
Now this last phrase is interesting. Kontorovich probably provides an answer in his paper, but I really wonder what, specifically, a duty to explain decisions to foreign nations could be based on. And if the US 'owes' such an explanation, do we Europeans have 'a right' to them?
The oft-made argument that Declaration supports American judges looking to foreign law is based on lifting the relevant passage from its textual and historical context. In fact, the Declaration does not remotely suggest that Americans should follow or adopt the “opinions of mankind.” To the contrary, it shows that we should follow our own opinions, even when they diverge from the dominant views of Europe. Indeed, throwing off the rule of a sovereign monarch contradicted the dominant opinion of mankind. Thus the Declaration takes the view that all we owe to other nations is to explain our actions to them.
Now this last phrase is interesting. Kontorovich probably provides an answer in his paper, but I really wonder what, specifically, a duty to explain decisions to foreign nations could be based on. And if the US 'owes' such an explanation, do we Europeans have 'a right' to them?
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Kenneth Anderson here - thanks for the kind remark about my Policy Review piece, which is available at www.policyreview.org and will be on ssrn soon. I wanted to add that I draw much of my analysis of judicial philosophy in constitutional comparativism from a fascinating new article, Roger P. Alford, "In Search of a Theory for Constitutional Comparativism," 52 UCLA Law Review 639 (February 2005) - I highly recommend it. Eugene Kontourovich's article is also highly recommended - and I recommend the very enlightening exchange between him and folks at the indispensable Opinio Juris blog, http://lawofnations.blogspot.com.
ReplyDeleteps. I blog on these topics at http://kennethandersonlawofwar.blogspot.com and welcome comments there. Currently I'm thinking about UN reform, as well as highly skeptical thoughts about corporate liability in international law in ATS cases.
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