Reviewed by: James G. Apple, Editor-in-Chief, International
Judicial Monitor and President, International Judicial Academy
Several
years ago, in one of the articles in the International Judicial Monitor, there
was a discussion about the rising hostility of American conservative commentators and politicians to the use of, or making reference to, foreign and international law by U.S. state and federal judges in deciding cases, in state and
federal courts. Conservative commentators bemoaned the fact that some judges,
including some sitting on the Supreme Court of the United States, were making
reference to statutes, rules and case law emanating from other countries and
international organizations, and even citing opinions of foreign and
international tribunals in support of judgments. This development may be an
outgrowth of a more general idea that the United States is “exceptional,” with
an exceptional legal system, seen now in danger of being corrupted by foreign
influences. It does not need, so the argument goes, legal rules or doctrine or
case law established by the governments of other nations, and certainly not
from international tribunals dispensing international law.
According
to the International Judicial Monitor article the viewpoint
that foreign and international influence has no place in the U.S.
legal system is false, at least from a historical perspective. The origins of
the U.S. legal system can be traced not only but largely through the English
common law, itself capable of being considered a foreign influence, but also
from the laws, doctrines and practices of countries whose legal systems reflect
the civil law or continental law tradition. As examples, the idea of a separate
judicial branch of government, embodied in Article III of the U.S.
Constitution, with its suggestion of an independent judiciary, came from the
writings of the French jurist and philosopher, Baron Montesquieu. The modern
method of conducting a trial for the taking of testimony in front of a
magistrate had its origins behind the walls of the Vatican, in Italy. The jury
system so common in U.S. state and federal courts came directly from England
after it had adopted a rudimentary form from citizen tribunals in France. The
idea of a law of nations, or international law as it later became known and is
now known in the United States, was a product of continental legal
developments, particularly in The Netherlands, Switzerland and Germany in the
16th through 18th centuries, developments later incorporated into the English
common law and brought to American shores in the early 17th Century. In his work drafting parts of the U.S. Constitution, James Madison consulted political papers, commentaries and ideas from a broad range of philosophers, jurists and writers from Europe, even reaching back to antiquity. Thus there
is no true, pure or virgin American law that has grown and matured in isolation
in the United States, and immune
from the influence of legal cultures and systems elsewhere. In fact it could be
argued that the American legal system has been very much enriched by foreign
influences other than the English common law. However it can be doubted that historical perspectives on legal systems
provide very much ammunition for those seeking to counter the conservative
attacks on the use of international and foreign law in the courts of the United
States to resolve cases.
What has
been badly needed in the U.S. is a careful and thorough examination of the
issue about the use of or reference to international and foreign law, in
treaties and treatises, in commentary and case law, by U.S. judges and jurists.
One book published several years ago by several U.S. law professors did examine
the use and influence of foreign and international law in the U.S. legal system
and refuted the arguments of conservative commentators and jurists (The Sword and the Scales see book
review in the Summer 2010 issue of the International Judicial Monitor in
Archives at top of Home Page). However there is now a much more valuable
resource for responding to the conservative view in the form of a new book by
Stephen Breyer, Associate Justice of the U.S. Supreme Court. Justice Breyer is
in a much better position to comment on the extent and value of contemporary
use of international and foreign law in U.S. jurisprudence. Justice Breyer’s
book provides almost incontrovertible proof that references and citations to
foreign and international law in American jurisprudence are not only
historically valid to serve as precedent and useful but also, in this
interconnected world we live in, absolutely necessary if the ends of justice
are to be served.
Justice
Breyer opens his discussion, in the Introduction, with an anecdote to prove the
major thrust of his book. He describes a day in October (near the beginning of
the usual Supreme Court term of nine months) when he and the other justices
were confronted with two cases involving international and foreign law
references. One case involved a mundane and relatively minor factual situation
- the right of a student from Thailand attending a U.S. university, to sell
U.S. textbooks that he had purchased in Thailand at a discounted rate to other
students at that university at lower prices than those quoted locally. The
second case involved the constitutionality of part of the Foreign Intelligence
Surveillance Act that permitted U.S. officials “to listen electronically to
certain conversations of foreigners abroad.” Petitioners in that case,
attorneys for foreign persons likely to be the target of such intercepted communications, argued
that such allowance “violated the confidentiality of their attorney-client
communications.” What these two seemingly disparate cases had in common was
they each ask the Court “to consider foreign persons and activities, foreign
commerce in the first instance and foreign threats to national security in the
second.” Justice Breyer went on to note that “the fact of two such ‘foreign’
cases out of the six cases argued that week would have been surprising when I first
joined the Court nearly twenty years ago. But it is no longer unusual. More and
more, cases before the Court involve foreign activity. That is my professional
reality, which I share with counterparts abroad....” He continued by clearly stating the
purpose of his book: focusing on the foreign aspect of the Court’s docket and
seeking “to make known the new challenges posed by an ever more interdependent
world” that justify consultation with foreign law. He accomplishes this stated purpose admirably, with compelling arguments in language and style that in most instances can be understood by lay persons.
The book is
divided into four parts, each containing a subset of chapters that address the
different kinds cases coming to the Supreme Court that not only support
reference to but require consultation with and deference to foreign and
international law. Part I of the book deals with “The Constitution, National
Security and Individual Rights.” Part II discusses issues relating to “The Foreign Reach of American
Statutory Law.” Cases arising under the topic of “International Agreements” are
addressed in Part III. The discussions in each part strengthen Justice Breyer’s
position that consultation with international and foreign law were not only
useful in the many illustrations that he offers, but dispositive of some of
them.
Several
examples found in these chapters illustrate Justice Breyer’s position: