Ruth Bader Ginsburg and International Law

[HuskyCaucasian]

I am sorry if this is a repeat and I SWEAR I saw it somewhere on here, but I couldnt find it... plus I thought it warranted special discussion. This was brought to my attention during a meeting today and finda pissed me off and I am curious as to what the American people can do as a recourse.

 

Ginsburg: U.S. Judges Should Consider Foreign Law

Supreme Court Justice Ruth Bader Ginsburg says it’s ok for U.S. judges to use foreign law for guidance in their own decisions.

 

The courts four conservative members – Chief Justice John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas – oppose the use of foreign law in constitutional cases.

 

“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Ginsburg said Friday in a symposium honoring her at Ohio State University, The New York Times reports.

 

Ginsburg says she’s fine with the idea that a U.S. court shouldn’t consider itself bound by the precedent established in international law.

 

But she’s also fine with the idea that a U.S. court can be influenced by strong reasoning from overseas.

 

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she says.

 

The Supreme Court’s reluctance to take into account foreign law has caused its global influence to wane, Ginsburg argues.

..........

Roberts looks at in a different way. “If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge, and no Senate accountable to the people confirmed that judge, he said at his confirmation hearing.

 

“And yet he’s playing a role in shaping the law that binds the people in this country.”

 

My understanding is that the Supreme Court is to enforce and interpret AMERICAN law, not foreign law. Under this idea, I guess torture isnt illegal because some countries allow it. Therefore, there is international president for it. I think this is VERY dangerous.

[NorthSideSox72]

I am sorry if this is a repeat and I SWEAR I saw it somewhere on here, but I couldnt find it... plus I thought it warranted special discussion. This was brought to my attention during a meeting today and finda pissed me off and I am curious as to what the American people can do as a recourse.

 

Ginsburg: U.S. Judges Should Consider Foreign Law

 

 

My understanding is that the Supreme Court is to enforce and interpret AMERICAN law, not foreign law. Under this idea, I guess torture isnt illegal because some countries allow it. Therefore, there is international president for it. I think this is VERY dangerous.

I think you are missing her point here. SCOTUS will rule on existing US law and jurisprudence/precedence, when such exists and applies. But most cases that make it to SCOTUS do so because those references are not 100% clear - if they were, SCOTUS doesn't need to get involved.

 

And with any reviewing judicial body, when the law is unclear or conflicting, you need to get guidance from lots of places. I have no issue with referencing international law in those circumstances to provide some possible directions to go - in fact I'd be disappointed if they refused to.

 

This is only a bad thing if she votes or writes in contravention of US law or jurisprudence, in favor of international or foreign law - which I really doubt she would do.

 

[Soxbadger]

This isnt something that is new. If you look at many of the first Supreme Court cases they cited Blackstone and other British legal authors because you have to get precedent from some where.

 

I think what Ginsburg is saying is that she would use foreign law the same way a state uses another states law. In Illinois, only Illinois law is binding, while all other states are merely persuasive. It does not mean that you cant cite an Ohio case in Illinois, it just means that if there is an Illinois case on the same topic, the Illinois case is more authoritative.

 

As Northside said, most of these cases are cases of first impression where there is very little if no case law on point. So does it really hurt to cite other international courts reasoning? Probably not as the Supreme Court can interpret the law how they feel.

[StrangeSox]

This isnt something that is new. If you look at many of the first Supreme Court cases they cited Blackstone and other British legal authors because you have to get precedent from some where.

 

I think what Ginsburg is saying is that she would use foreign law the same way a state uses another states law. In Illinois, only Illinois law is binding, while all other states are merely persuasive. It does not mean that you cant cite an Ohio case in Illinois, it just means that if there is an Illinois case on the same topic, the Illinois case is more authoritative.

 

As Northside said, most of these cases are cases of first impression where there is very little if no case law on point. So does it really hurt to cite other international courts reasoning? Probably not as the Supreme Court can interpret the law how they feel.

 

That's the part that most people are missing. Sound reasoning is sound reasoning, whether it comes from our precedents or someone else.

 

There's a lot of Republicans freaking out about this today who apparently don't understand how legal systems work.

[bmags]

first posts addressed everything I had to say

[lostfan]

Yes, I did. You must not have read the Clarence Thomas dishwashing thread.

I'm not seeing it, I saw a former cop and a lawyer give opinions and people just kind of went "ah, I get it".

[kapkomet]

I just deleted the crap. NSS is right, we went overboard.

 

Carry on.

[Texsox]

Seems like we should take the best thinking, no matter where it comes from.

[JorgeFabregas]

Not to beat a dead horse, but in terms of specifics:

 

Read The Paquete Habana, 175 U.S. 677 (1900)

http://supreme.justia.com/us/175/677/

 

From the syllabus:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

 

I don't know all that much about the subject, but my understanding is that international law has always played some part in US jurisprudence and that no one imagined it could be otherwise. Now, the meaning and types of international law have changed a lot in the last century.

Edited April 20, 2009 by JorgeFabregas

[BigSqwert]

Not to beat a dead horse...

Too many dead horses today.

[NorthSideSox72]

Not to beat a dead horse, but in terms of specifics:

 

Read The Paquete Habana, 175 U.S. 677 (1900)

http://supreme.justia.com/us/175/677/

 

From the syllabus:

 

 

I don't know all that much about the subject, but my understanding is that international law has always played some part in US jurisprudence and that no one imagined it could be otherwise. Now, the meaning and types of international law have changed a lot in the last century.

I think that is legalize for exactly what we've been saying - in the absence of contravening or posted law or jurisprudence domestically, it is perfectly reasonable and expected to reference int'l law.

 

[Jenksismyhero]

I completely disagree with the position that SCOTUS should be using international law, in any way. Our entire system is designed around our own judicial precedent, not that of other countries.

[Texsox]

I completely disagree with the position that SCOTUS should be using international law, in any way. Our entire system is designed around our own judicial precedent, not that of other countries.

 

I think there has to be a discussion of how they are using it. To me it would be the same as saying we will not look at any medical research being done outside of the US. If they are using the information to expand their knowledge base prior to making a ruling, I do not see how more knowledge is a bad thing. It seems silly for the justices to close their eyes and ears and chant we are not looking, we can't hear you, unless you're American.

[NorthSideSox72]

I completely disagree with the position that SCOTUS should be using international law, in any way. Our entire system is designed around our own judicial precedent, not that of other countries.

Did you read the rest of the thread? Ginsburg, and us, are talking about the corner cases, where domestic judicial precedent isn't available or isn't clear.

 

[lostfan]

I completely disagree with the position that SCOTUS should be using international law, in any way. Our entire system is designed around our own judicial precedent, not that of other countries.

I think you're way off the mark here as far as what Ginsburg actually said.

[Jenksismyhero]

Did you read the rest of the thread? Ginsburg, and us, are talking about the corner cases, where domestic judicial precedent isn't available or isn't clear.

 

I don't think that really matters. Since the beginning of our relatively young judicial system, judges have been guided by the principles of the Constitution and subsequent legislation and precedent, not what other countries think. I just feel like judicial systems are so different, and that legal reasoning comes from totally different places depending on the social, political, and legal systems involved, that a decision in country A isn't really applicable to country B.

 

And really most of these "corner cases" deal with moral issues - the death penalty, torture, rights of certain individuals, etc. The decisions in those cases should be rooted in our own society, not anothers.

[kapkomet]

I don't think that really matters. Since the beginning of our relatively young judicial system, judges have been guided by the principles of the Constitution and subsequent legislation and precedent, not what other countries think. I just feel like judicial systems are so different, and that legal reasoning comes from totally different places depending on the social, political, and legal systems involved, that a decision in country A isn't really applicable to country B.

 

And really most of these "corner cases" deal with moral issues - the death penalty, torture, rights of certain individuals, etc. The decisions in those cases should be rooted in our own society, not anothers.

I agree, but there's a huge movement right now on collectivism and societal norms being based on "global" viewpoints.

[Texsox]

I don't think that really matters. Since the beginning of our relatively young judicial system, judges have been guided by the principles of the Constitution and subsequent legislation and precedent, not what other countries think. I just feel like judicial systems are so different, and that legal reasoning comes from totally different places depending on the social, political, and legal systems involved, that a decision in country A isn't really applicable to country B.

 

And really most of these "corner cases" deal with moral issues - the death penalty, torture, rights of certain individuals, etc. The decisions in those cases should be rooted in our own society, not anothers.

So we ignore any solutions that were not created here? That seems silly. It would be like Illinois ignoring something Wisconsin is doing. If there is a better solution somewhere, why not adopt it?

 

A decision by A might not be applicable to B, but it may. How would we know if we remain ignorant of what A is doing?

 

I'm thinking of issues from emerging technology. Something as simple as a fax machine or internet "signature" and are the documents "legal" if they are signed and transmitted. It would seem natural to me to look around and see how others, inside and outside the US, have handled it.

[Jenksismyhero]

So we ignore any solutions that were not created here? That seems silly. It would be like Illinois ignoring something Wisconsin is doing. If there is a better solution somewhere, why not adopt it?

 

A decision by A might not be applicable to B, but it may. How would we know if we remain ignorant of what A is doing?

 

I'm thinking of issues from emerging technology. Something as simple as a fax machine or internet "signature" and are the documents "legal" if they are signed and transmitted. It would seem natural to me to look around and see how others, inside and outside the US, have handled it.

 

The job of legislators is to create the "solutions." The judiciary merely interprets. That's the problem with basing a decision, in whole or in part, on international decisions - the judiciary decides (legislates) what it thinks works for the given situation, not what the law requires.

[Texsox]

The job of legislators is to create the "solutions." The judiciary merely interprets. That's the problem with basing a decision, in whole or in part, on international decisions - the judiciary decides (legislates) what it thinks works for the given situation, not what the law requires.

 

Good point, thank you for the reminder.

 

Is there any value in seeing how others interpreted what the law requires?

[Jenksismyhero]

Good point, thank you for the reminder.

 

Is there any value in seeing how others interpreted what the law requires?

 

I think there is, but the problem is law A isn't the same in every country, nor is the intent of law A, nor the reason behind law A, etc. The judiciary's intent (or so it was in the beginning) wasn't to decide the "right" viewpoint, but instead to be sure that the "right" viewpoint in a given case conformed to the law. So it makes no sense, IMO, to view another country's decision of law A as holding any value here when the same foundational rules don't apply. I think Ginsburg (and many before her) want to justify ruling on what they think is "right" be bolstering their opinion with a global consensus.

 

In a broad sense it seems like a wonderful idea to include international views on domestic issues, but that's not the job of the judiciary, and it certainly isn't a good thing for them to be using those views in "creating" law here.

[Texsox]

I think there is, but the problem is law A isn't the same in every country, nor is the intent of law A, nor the reason behind law A, etc. The judiciary's intent (or so it was in the beginning) wasn't to decide the "right" viewpoint, but instead to be sure that the "right" viewpoint in a given case conformed to the law. So it makes no sense, IMO, to view another country's decision of law A as holding any value here when the same foundational rules don't apply. I think Ginsburg (and many before her) want to justify ruling on what they think is "right" be bolstering their opinion with a global consensus.

 

In a broad sense it seems like a wonderful idea to include international views on domestic issues, but that's not the job of the judiciary, and it certainly isn't a good thing for them to be using those views in "creating" law here.

 

Bottom line, it just seems wrong to say, we don't want more information, we want less. The embracing of ignorance is perhaps one reason why those in the business of law are held in such low esteem by a segment of the population. While most professions would be looking anywhere for better ideas, lawyers and judges are told to dig their heads in the sand and not look around. Seems like a faulty system if we cannot trust judges to think.

[JorgeFabregas]

I don't think that really matters. Since the beginning of our relatively young judicial system, judges have been guided by the principles of the Constitution and subsequent legislation and precedent, not what other countries think. I just feel like judicial systems are so different, and that legal reasoning comes from totally different places depending on the social, political, and legal systems involved, that a decision in country A isn't really applicable to country B.

 

And really most of these "corner cases" deal with moral issues - the death penalty, torture, rights of certain individuals, etc. The decisions in those cases should be rooted in our own society, not anothers.

Did you read the case I posted? From 1900? Did you see how many different countries' laws were referenced?

[Texsox]

It would seem to me that if someone has to make a decision, judge something, they should look at whatever knowledge is available. I suspect most judges are capable enough to look at a different law, see where the law differs and where is is similar, and look at that ruling, and add it to their knowledge. It might not apply, it might, but I can't see where knowledge is ever bad.

[southsider2k5]

Bottom line, it just seems wrong to say, we don't want more information, we want less. The embracing of ignorance is perhaps one reason why those in the business of law are held in such low esteem by a segment of the population. While most professions would be looking anywhere for better ideas, lawyers and judges are told to dig their heads in the sand and not look around. Seems like a faulty system if we cannot trust judges to think.

 

Its not ignorance to want to interpret your own laws through the eyes of your own country. The law isn't something where you can pick and choose what to look at. They have very finite statues and prior rulings that are supposed to be their basis. Why would a law in a different part of the world be relevant to our own laws? That doesn't make any sense. We don't live somewhere else, so why would we use their laws to govern us?