Lots of the praise for the late Justice Ruth Bader Ginsburg, who died this past Friday, is a little bit about the Justice and a bit about the concerns of the writer. Former law clerks who have praised their former boss have reminded everyone of their elite credentials. Advocacy groups have praised Justice Ginsburg for just those views and opinions that line up with their own work. The Jewish world has noted her pride in her Jewish heritage. And so forth. I would like to honor this extraordinary judge in the same way, with a short appreciation of her views on the reasons why judges should consider foreign decisions, not as binding precedent but as persuasive authorities.
In recent years, this has, bizzarely to my mind, become a contentious view. Some justices have strongly rejected the usefulness of foreign cases as a guide to constitutional decisionmaking, and as I have reported at Letters Blogatory occasionally, the popular fear of “Sharia law” has led to some pretty dumb state legislation that is entirely ignorant of the field of conflict of laws or the reasons why a foreign law might sometimes be the most appropriate law to apply. In an excellent speech to the International Academy of Comparative Law in 2010, Justice Ginsburg connected her views with the American founding. She pointed out that the Constitution itself recognizes the preexistence of a “law of nations,” that in the Declaration of Independence the founders sought to put justify their case to a “candid world” out of a “decent respect to the opinions of mankind.” She points to early examples of judges looking overseas. She recognized that her view had critics: Justice Scalia, for example, thought it was always wrong to cite foreign authorities in constitutional cases, while Judge Posner wrote, “To cite foreign law as authority is to flirt with the discredited … idea of a universal natural law; or to suppose fantastically that the world’s judges constitute a single, elite community of wisdom and conscience.” But her response was right on the money: no one is saying the foreign authorities bind an American court; of course they don’t! But what can be wrong with trying to learn from the rest of the world as we think the rest of the world can learn from us, and taking from foreign cases what we find persuasive? I almost think that strong criticisms of this view must rest on a strange understanding of what it means to cite an authority. Judges cite authorities all the time that they recognize do not control: foreign cases, treatises, restatements, or even, as Justice Ginsburg noted in her speech, law blogs! She concluded:
Recognizing that forecasts are risky, I nonetheless believe the U. S. Supreme Court will continue to accord “a decent Respect to the Opinions of [Human]kind” as a matter of comity and in a spirit of humility. Comity, because projects vital to our well being—combating international terrorism is a prime example—require trust and cooperation of nations the world over. And humility because, in Justice O’Connor’s words: “Other legal systems continue to innovate, to experiment, and to find … solutions to the new legal problems that arise each day, [solutions] from which we can learn and benefit.”
A coda: I see that Tobias Lutzi had a similar idea at Conflict of Laws, done in a lot more detail, which I recommend.