March 03, 2005

Foreign Law in US Courts

There is a right way and a wrong way to use foreign law in interpreting US domestic law. The wrong way came about in the recent Supreme Court decision banning the use of the death penalty against those who were juveniles at the time the crime was committed. The 'evolving standards of decency standard' is entirely too subjective to befit a court that protects the rights, interests and prerogatives of all involved; an American court is NOT, in most cases, supposed to figure out what's fair or even right, only who holds what rights. Juries are triers of fact and juries decide if you're guilty - a judge or a justice is only supposed to answer questions of law and rights. By using the opinions of foreign law to influence domestic US courts (not even legislatures, where it would be germane, but in the courts themselves) they've thrown out the idea that courts defend rights - and they've turned history on its head.

Historically, the US is the best and freest place on Earth in most respects. We pitied the rest of the world and their kings, aristocrats, tyrants and irrationalism. Looking to Europe for guidance of American law, historically, was about as sensical as the wise old man looking to an adolescent puppy for bathroom behavior. But I digress.

The correct way to use foreign law or law of antiquity is not persuasion but as a model. If in the past or in another country they've found some way to work their legal system to appropriately judge and balance various rights and interests, then it is appropriate to draw on that as an inspirational model for a US domestic court case. This is a relatively narrow area of applicability. For example, it would be appropriate to draw on foreign/antiquity law in order to prove that one's position is not unreasonable or untenable out of hand. Law is supposed be about rights and privileges, not pragmatics, but sometimes practical details hold too much sway - it's apropriate to give examples in order to dispel the pragmatics dragon.

It would not be appropriate to say that foreign/antiquity law ought to hold direct influence over US law - that would move from model to direct persuasion. If the French or the Japanese have a law, then it's only relevant to US court cases (or OUGHT to only be relevant) if it proves that a given legal remedy or structure is pragmatically plausible. It's not relevant to say that because the French or the Japanese have a law, so ought we.

There are some partial exemptions: 1) British common law, inasmuch as British common law has been subsumed into American common law. Since most of the GB common law is a part of US common law, this isn't really an exemption. Those parts of GB common law not integrated into US common law should only have the barest applications for direct persuasion, and should otherwise only serve as a model for what is possible. 2) Western antiquity laws, since these form a very general moral basis for US law. This is only applicable as a part of a larger, more substantial argument, and only at the fringes to help seal the case. It might help hit home a case to cite a Roman law or Hippocratic code, but it shouldn't be necessary to the case. This is only a partial exemption because it has some slight bearing on US domestic law.

Law is about rights and interests, not about public opinion. This being the case, it can't be fudged. Either somebody has a right or he doesn't, and the distance it extends ought to be objectively verifiable and well-reasoned. Public opinion is often arbitrary and unpredictable - the very essence of tyrannical law. I'm not even that super gung ho on executing those that murdered as juveniles (though I think they probably should be executed).

I am definitely against the current trend of turning "cruel and unusual" into some sort of popularity contest.

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