Don't Impose Foreign Law on Americans
Supreme Court Justice Antonin Scalia recently delivered these remarks at the American Enterprise Institute:
I'm talking today about the use of foreign law in American judicial opinions, and most of what I have to say is unfavorable, so I feel I should begin by pointing out that I am not a xenophobe. I don't mind foreign law. In fact, in my years as a law professor, I used to teach foreign law. You don't understand your own language until you've taken some foreign language, and I think you do not understand your own legal system--its distinctiveness, and what drives it-until you examine some other system.
I do not take the position that foreign law is never, ever relevant to American judicial opinions. It sometimes is. For example, in the interpretation of treaties, whose object is to have nations agree on a particular course of action, I am inclined to follow the interpretation of other signatories so long as it's within the realm of reasonableness. I also think that foreign law is sometimes relevant to the meaning of an American statute. For example, our Foreign Sovereign Immunities Act permits suits for property "taken in violation of international law." We had a case a few terms ago involving the seizure of some valuable paintings by the Nazis. Obviously, whether the person seeking to have the paintings restored was entitled to them depended upon whether that person owned the paintings--and that was a question of Austrian law. So we obviously had to consult Austrian law for that purpose.
I think foreign law can also profitably be discussed in the opinions of U.S. courts where it is consulted to predict results of a particular ruling. You can look to foreign law and say, gee, they did this in Germany and the skies didn't fall. That's certainly a very valid use of foreign law.
But those are not the uses that worry people. I think people are concerned principally about the use of foreign law in the interpretation of the United States Constitution. Even there I have to tell you I cannot say it is never relevant. Of course, the foreign law I think is relevant is very old foreign law. Very old English law-because what is meant by the terms of our federal Constitution depended upon what Englishmen in 1791 considered due process of law, what they considered to be cruel and unusual punishments, and so forth. So I use foreign law all the time. But it is all very old English law.
What about modern foreign legal materials? Well, that is where I get off the boat. It is my view that modern foreign law can never be relevant to an interpretation of the meaning of the United States Constitution.
Yet the Supreme Court has recently expanded the use of foreign law. In Lawrence v. Texas, decided in 2003, the Court relied upon action of the British Parliament and a decision of the European Court of Human Rights in declaring that laws punishing homosexual conduct were un-Constitutional in America.
I expect, and fear, that the Court's use of foreign law in the interpretation of our Constitution will continue at an accelerating pace. And I think this for three reasons. First, because the "living Constitution" paradigm of interpretation prevails on today's Court, and indeed in our legal community generally. Under this view, it is the task of the Court to make sure that the current Constitution comports with "the evolving standards of decency that mark the progress of a maturing society." Once you assume the power to revise what the Constitution requires in order to keep it up to date, you are effectively engaged in the process of writing your Constitution anew, and there is no reason whatever not to consult foreign materials in doing it.
The second reason foreign law is likely to be used increasingly is Sir Edmund Hillary's reason--because it's there. Let's face it: it's pretty hard to put together a respectable number of pages setting forth reasons for newly imposed Constitutional prescriptions or prohibitions (as a legal opinion is supposed to) that do not at all rest upon one's moral sentiments, one's view of natural law, one's philosophy, or one's religion. …