« Judge Kozinski | Main | Education, Schooling and Dependency »
October 29, 2005
Uncommon Law
Should the US Supreme Court — or any other US court — quote foreign courts in their legal decisions?
When that question first came up, my immediate thought was, "No. Of course not. It's a different system with different laws." But upon reflection, I've modified my opinion quite a bit. I still think that it is meaningless to quote foreign courts in Constitutional matters — even harmful, to the extent that this gives the idea that our Constitution might not be sovereign. But on criminal law, I think that quoting foreign courts from other countries whose legal systems are based on English common law is not only valid, but admirable. (I'd be delighted to learn of more judges having read, say, Blackstone.)
The whole basis of common law is that it is the law that has evolved among free people to keep them free. Up until a hundred or so years ago, in fact, it was not unlikely for a bad English law (or a bad American law) to be put by the board simply because no judges would hear a case brought under it, and no jury would convict. Common law was mostly based on common sense: it was law made largely without benefit of legislatures or lawyers. The closest thing to it in America today is, ironically, TV court shows like The People's Court. Under common law, you would not see multi-million dollar settlements against big companies just because they are big companies, nor would you see people being put in jail for simple self defense (as they often are, now, in England).
More and more, our laws are coming to resemble the French system: they cover every aspect of everything, and are self-referential. There is no possibility of going outside the law to common sense, and all respect is given to the law even if it is tyrannical and arbitrary. To the extent that quoting foreign common law courts brings us back to our justicial roots, I'm all for it.
Trackback Pings
TrackBack URL for this entry:
http://www.caerdroia.org/MT/mt-tb.cgi/566