What the big deal about foreign law in US courts? Part 2

Enthusiasts of Justice Breyer's approach want to encourage judges to see themselves as engaged in a common global enterprise of judging alongside other judges in other legal systems, in which they are collectively socialized to understand themselves as creating a genuinely global jurisprudence. It should be tempered, to be sure, by local and national concerns, culture, social considerations, and so on – yet it should see itself consciously as also part of a global order. Judges should, on this view, have many interactions with each other, and specifically many face to face meetings in order to develop their sense of identity and community as judges engaged in a common enterprise of creating a global jurisprudence. They should, again on this view, see themselves as engaged in “dialogue” with other courts around the world to help themselves as a community of judges find common ground and approaches to common legal problems – which, as noted earlier, are far from limited to such cross border matters as trade but which should include the death penalty and such “values” issues.

The invocation of "common" legal problems is frequent in this discourse, and it frequently involves a curious elision, in which two separate questions are run together. One is legal matters which are “common” because they cross borders, such as trade or air pollution – the same actual thing, circumstance, or event touches two jurisdictions. The other is a problem which, in any actual instance, exists in a single jurisdiction, but which might also occur in another jurisdiction – such as the death penalty. It is “common,” however, only because it might occur in either or both; it is not “common” because any actual instance involves both jurisdictions. Conflating those two meanings of “common” risks allowing the considerations and analysis of the first, which plainly does require some rules to settle jurisdictional questions if nothing else, to sweep in everything that might occur in some place and another place, such as the death penalty. The first requires some level of interaction; the second does not, but wrapping the two together can convey the impression that it does.

For those who are strongly in favor of such developments, the globalist socialization of judges is intended, over time, to develop genuinely global social and psychological and communal allegiances that will affect how judging is done. Justice Breyer has always been very cautious in his public remarks as to how far the practice is intended to go in affecting the outcomes of US cases - is it intended to be merely rhetorical or something more? But for those who do go farther - Slaughter is one, and I am drawing on her view - this globalist orientation is intended to mark out such practices as US First Amendment case law, among others, as “outliers” to global jurisprudence, and to make US judges conscious of where their jurisprudence is an outlier with respect to global legal trends. It is further intended to be a vehicle for using US courts to deploy their considerable powers in the interests of a globalist agenda. It is not intended merely as a means for judges to extend their knowledge and sophistication in some background sense. Slaughter, for example, intends that American judges cite foreign cases as “persuasive authority, and that where judges do in fact “cite foreign decisions as persuasive … constitutional cross-fertilization begin[] to evolve into something deeper, resembling an emerging global jurisprudence.”(A New World Order, p. 78) And this is to take place as “genuine transjudicial deliberation within a newly self-conscious transnational community.”(p. 78)

Well, we should ask, what on earth could be wrong with that? It is a picture of progress, after all, toward a globalized world that is also a more civilized world, one in which each legal system sees itself as deriving from a higher, universal system of values and law, shared globally, tempering each other by reference to what one's judicial peers worldwide are doing. Surely it is an attractive vision? Certainly it is a vision with many, many believers - good folks who firmly see this as a means to a more just and peaceful world. If it has a fault, on this view, the fault is not with the vision, but with its utopianism and the difficulty of its realization.

My own view is that the vision itself is mistaken; it is a misconceived view of political progress, and a mistaken view of political community, expressed as democratic sovereignty. The problem is not just one of execution. But why?

(Update: Go to post 3, here.)