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Thursday, June 12, 2008
Should Ronald Dworkin dislike foreign law just as much as Justice Scalia?
As the NY Times notes, the United States is an outlier when it comes to free speech. As I noted in an earlier post, we Yanks are weirdly out of step with most of the world on birthright citizenship (i.e., we have it, and most of other industrialized democracies don't). Of course, we are out of step with many European democracies on the exclusionary rule, administrative law (e.g., government in the sunshine, freedom-of-information, and other devices for lay participation in bureaucratic decision-making), class actions, civil jury trials, contingent fees, widespread use of plebiscites in local and state policy-making, and a host of other legal practices.
When a nation is such an oddball on so many issues, differing from other countries with a similar economic and democratic culture, then it is time to step back and take stock. Why are we such legal outliers?
One possibility is suggested by John Kingdon in his book, America the Unusual. Kingdon, a noted political scientist famous for his studies of the actual motives and incentives of members of Congress, provides a panoramic survey of U.S. political and legal culture, concluding that the citizenry of the United States is deeply anti-statist. This anti-statism springs, in turn, from an anti-elitism that European democracies do not share -- a distrust of the sorts of unelected policy-making experts that staff the permanent bureaucracy. Thus, American anti-statism is not necessarily libertarian hostility to redistribution of wealth: Americans are comfortable, for instance, with a tort system that is far more redistributive than European tort systems. Rather, the American attitude is that full-time bureaucratic specialists cannot be trusted with power.
Suppose that Kingdon is correct as a purely descriptive matter (and, by the way, Kingdon's position is not normative: He deplores Americans' knee-jerk anti-statism). If one is committed to a sort of Dworkinian theory of legal integrity in which particular legal decisions are integrated to "fit" as well as possible with pre-existing conventions, then does the desire to achieve such "fit" suggest that we weird Americans really ought to be suspicious of foreign law? There is, after all, a high probability that such law will be in tension with our long-held and widespread legal commitments to Kingdon-style anti-statism.
In other words, should Ronald Dworkin dislike foreign law just as much as Justice Scalia?
Posted by Rick Hills on June 12, 2008 at 09:05 AM in Constitutional thoughts | Permalink
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Comments
Dworkin's "naturalism" basically posits judicial consideration of the rights which people have as a result of the history of the political morality of the society in which they live. His judge develops a theory of "natural law" based on common law, precedent, statutory, and constitutional law.
A Dworkinian judge might rightly be suspicious of foreign law, based on these commitments - Dworkin's theories do not provide for the introduction of norms from extra-jurisdictional sources. However, Dworkin's theses are based upon the idea that "vague but powerful idea of human dignity [which] [s]upposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community" and the idea that "[s]upposes that the weaker members of a political community are entitled to the same concern and respect of their government as the more powerful members have secured for themselves."
Dworkin imports these norms from...somewhere - and foreign law which takes account of these norms could equally be imported under the guise of foundational principles. Similarly, the foreign law would have to be stripped of identifying features and simply cited as foundational.
Posted by: Jonathan | Jun 12, 2008 10:22:48 AM
But I thought Dworkin's integrity model is not about "fit" or coherence simpliciter, but about "fit" that also expresses a "coherent conception of justice and fairness." In any case, there is a legal history of citations to foreign law or ius gentium as Waldron would have it (i.e., the Supreme Court's historical use of international law in constitutional analysis), so that is part of our legal tradition, is it not (hence, for instance, Sarah Cleveland's article, 'Our International Constitution')?
Posted by: Patrick S. O'Donnell | Jun 12, 2008 10:38:10 AM
Jonathan's comments fit with the way I understand Dworkin. I suppose my question is, what differentiates foreign law from other extra-jurisdictional law? I didn't think Dworkin draws a distinction, since he is concerned with judicial decisionmaking, and while there might be pragmatic concerns bearing on the persuasiveness the SDNY might have on the EDNY as compared with the persuasiveness the Supreme Court of Canada has on the EDNY, is there a difference in kind between the two?
I'm curious about the idea that a high-probability that a court of any outside jurisdiction might disagree in the future with your court provides a REASON to be skeptical of any particular decision. I thought that the justification for any particular decision itself was the relevant comparison.
So, what does it mean to be suspicious of foreign law in the Dworkinean context?
Posted by: AndyK | Jun 12, 2008 5:28:52 PM
Dworkin's Hercules the Judge would develop a "natural" theory of judgment based on the common law, statutory law, and so forth, before him / her, and use that to judge "hard cases." Dworkin discusses the importance of promulgation of the law (in more verbose fashion) and that the individuals in the jurisdiction have awareness of how and why they are being judged. To import foreign law would be to shatter this "fit" by bringing in external norms potentially unknown to the individuals being judged.
With that said, in cosnidering the two ideas I presented above which Dworkin takes as foundational, Dworkin presents little argument as to why they are foundational. He seems to take it that they are foundational, and one need not argue about such things. Hence, Dworkin's judge could consider foreign jurisdictional norms under these broad categories and simply cite the norms as part of the foundation of these broad categories.
Posted by: Jonathan | Jun 13, 2008 9:53:36 AM
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