"Partly Laws Common to All Mankind"

"Partly Laws Common to All Mankind": Foreign Law in American Courts'

Jeremy Waldron
Copyright Date: 2012
Published by: Yale University Press
Pages: 256
https://www.jstor.org/stable/j.ctt1npc8j
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  • Book Info
    "Partly Laws Common to All Mankind"
    Book Description:

    Should judges in United States courts be permitted to cite foreign laws in their rulings? In this book Jeremy Waldron explores some ideas in jurisprudence and legal theory that could underlie the Supreme Court's occasional recourse to foreign law, especially in constitutional cases. He argues that every society is governed not only by its own laws but partly also by laws common to all mankind (ius gentium). But he takes the unique step of arguing that this common law is not natural law but a grounded consensus among all nations. The idea of such a consensus will become increasingly important in jurisprudence and public affairs as the world becomes more globalized.

    eISBN: 978-0-300-14866-4
    Subjects: Political Science, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xi)
  4. List of Cases
    (pp. xii-xiv)
  5. List of Abbreviations
    (pp. xv-xvi)
  6. CHAPTER ONE Simply the Law
    (pp. 1-23)

    It seems to be the law that adults cannot be executed for crimes they committed when they were children. The law where? Certainly it is now the law in the United States, assuming thatRoper v. Simmons,decided in 2005, holds as a precedent.¹ In that case the Supreme Court overturned the death sentence a jury had imposed on a young man, Christopher Simmons, for the brutal murder of a woman whose house he had broken into, a murder committed a few months before his eighteenth birthday.² And, as far as we know, it is the law in every other...

  7. CHAPTER TWO The Law of Nations, Ius Gentium
    (pp. 24-47)

    InRoper v. Simmons,Justice Scalia was withering in his criticism of the majority’s reliance on foreign law. He complained that while the Court treated “the views of our own citizens [as] essentially irrelevant” to its decision, “the views of other countries and the so-called international community take center stage.”¹ Scalia didn’t venture to explain why the Court adopted this order of priorities. Why would the majority inRoperproceed from the premise that “American law should conform to the laws of the rest of the world”? For Scalia, it was enough to identify the premise and reject it “out...

  8. CHAPTER THREE A Body of Legal Principles
    (pp. 48-75)

    The practice of invoking foreign law can be understood in two ways. In the first and most straightforward way, we, in country A, refer to and rely on the law of country B for some insight, principle, or doctrine; for other insights, principles, and doctrines we refer to the laws of country C; and for still others we refer to country D. We do it one jurisdiction at a time, and we justify it (or criticize it) one jurisdiction at a time. I think a lot of critics in the United States presuppose that this is the approach being taken...

  9. CHAPTER FOUR Learning from Other Courts
    (pp. 76-108)

    My aim in the next two chapters is to set out the reasons that make invoking foreign law in American courtrooms a sensible thing to do. I will pursue two main lines of argument. The first, which I discuss in this chapter, is that we can learn from what other courts are doing when they address questions which are the same or similar to those we are addressing. The second line of argument involves the more challenging idea that there may be some virtue in sheer consistency across the decisions of different courts, even for courts belonging to different jurisdictions....

  10. CHAPTER FIVE Treating Like Cases Alike (in the World)
    (pp. 109-141)

    In 2003 a young man named Paul Hopkinson set fire to a New Zealand flag on the grounds of the New Zealand Parliament. He was protesting Australia’s support of the United States in the war in Iraq on the occasion of a visit by the Australian prime minister. Hopkinson was arrested, charged, and convicted of an offense under the Flags, Emblems, and Names Protection Act 1981, a statute which makes it an offense to destroy the New Zealand flag with the intention of dishonoring it. The penalty was a fine of NZ $600. Hopkinson appealed his conviction on the ground...

  11. CHAPTER SIX Democratic and Textualist Objections
    (pp. 142-170)

    One of the most persistent criticisms of the U.S. Supreme Court’s recent recourse to foreign law is that it is undemocratic. The practice allows the decisions of foreign courts to have influence over the fate of Americans, who have neither participated in the election of the politicians who appointed the foreign judges, nor as a people adopted or had any opportunity to consider or amend the charters and constitutions these foreign judges are interpreting.¹ True, it does not give the foreign judges direct authority over Americans, but through the medium of judicial review it subjects them, in the words of...

  12. CHAPTER SEVEN Practical Difficulties
    (pp. 171-186)

    Of all the objections I hear raised against the use of foreign law, the most common is that it involves a form of cherry picking, that is, picking one or two laws or precedents from here and there in the world simply because they happen to support the position one is arguing for in the United States or wherever the controversy about the use of foreign law arises. The objection is that the use of foreign law is undisciplined by any jurisprudence more scrupulous than that.

    At his confirmation hearing after being nominated for Chief Justice, Judge John Roberts was...

  13. CHAPTER EIGHT Legal Civilizations
    (pp. 187-224)

    BeforeRoper v. Simmons,there wasThompson v. Oklahoma(1988). In that case, the Supreme Court held that an adult could not be executed for a crime he committed when he was younger than sixteen. Writing for a plurality on the Court, Justice John Paul Stevens said that a prohibition on executing the petitioner was “consistent with the views that have been expressed . . . by other nations that share our Anglo-American heritage, and by the leading members of the Western European community,” and he referred to the laws of Australia, Britain, Canada, France, Italy, West Germany, the Netherlands,...

  14. Notes
    (pp. 225-258)
  15. Bibliography
    (pp. 259-280)
  16. Index
    (pp. 281-288)