Consulting foreign law : Post at the University of Chicago Law School Faculty Blog

The University of Chicago Law School Faculty Blog has a wonderful post by Professor Sunstein on the citation of foreign materials by the US Supreme Court.

Regular readers may realize by now that that subject is a peculiar obsession here. See a previous post about an op-ed by Professor Glendon. A few instances of when the Court of Justice could have cited - but did not cite - US material are mentioned. It just seems curious that the subject should be so passionately debated when it comes to the US Supreme Court whereas the practice of the Court of Justice and of the Court of First Instance of not citing foreign material is not questioned in the EU. Of course, one commentator did point out that the Advocates General do cite foreign material occasionnally.

Perhaps the Court of Justice and the Court of First Instance should study the Condorcet jury theorem to decide whether it is worthwhile citing non-EU judgments in their own judgments (apart from ECHR judgments).

The paper by Sunstein and Posner referred to in the Chicago blog post can be found here (thanks to Meta and Meta).

Comments

[Cyril]

I'll just quickly make a couple of points on this: the reason the Community Courts do not cite foreign law is that they apply highly specific, highly technical European rules. In general, foreign precedents are not on all fours with EC law issues. If you look at the debate on citations to foreign materials by the U.S. Supreme Court, you will see that the cases in question raised mainly subjective issues (i.e. deciding between competing social/human values in human rights cases) rather than relatively clear-cut legal issues. (See "the maturing values of civilized society" and "this Nation's" "understanding of human dignity" in Roper v. Simmons.) EC law as it currently stands does not lend itself well to subjective assessments between competing, UNIVERSAL social values (except maybe in a few areas, like competition law: finding the best way to curb market power is a universal issue).
Now, the ECHR does. The Strasbourg Court's job is to weigh up competing fundamental freedoms all the time (or weigh up one purported fundamental freedom versus the margin of autonomy of the Member State in question). Therefore, one could imagine that in doing so the ECt.HR could refer to foreign materials, so that its judgments could be informed by the social choices of other civilized nations. The reason it doesn't is that our human rights culture is euro-centric, and since we are at the center of our own culture, why look elsewhere? (The Vatican doesn't look to foreign cardinals for spiritual guidance...)
While it would be imaginable to see Australian or U.S. or Canadian courts refer to European materials, we Europeans don't do this because we (rightly?) assume that we set the standard in this area and that therefore we don't need lessons from cultural offshoots like Australia or the U.S. or Canadia, let alone other parts of the world. The ECt.HR can't see any culturally similar, sufficiently civilized nation that could give Europeans some interesting legal materials to consider. I mean - let's be realistic: what other countries could European courts refer to? The debate about citations to foreign materials should be circumscribed to the same broad belief/value system (namely Europe plus North America plus Australia and New Zealand). South American courts are too plagued by the recent specter of dictatorship and the current scourge of corruption to be taken seriously. And African, Arab and Asian courts simply reflect different social values that are not comparable with the values guiding European case-law.