Ruth Bader Ginsburg and International Law

[NorthSideSox72]

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?

People keep missing two things here. First, no one, Ginsburg or otherwise, is saying we look at other laws when we already have related laws or jurisprudence in place that give us the answer. So no one is trying to use other laws to govern our nation. As you say, we have finite laws to work with, and they don't cover everything - so why on earth would you not take a look at what others have done, as a reference? Just like state courts look to other states' decisions for guidance, even though the laws of each state are slightly different.

 

Second, I hope everyone realizes that the laws of this country, Constitution included, were guided in great part by finding the best in breed from other countries. Our laws are rooted in common law and other laws already present in other countries well before our laws existed. The US didn't invent the concept of law. So, our laws and court decisions are all influenced by foreign laws already anyway.

 

 

[southsider2k5]

People keep missing two things here. First, no one, Ginsburg or otherwise, is saying we look at other laws when we already have related laws or jurisprudence in place that give us the answer. So no one is trying to use other laws to govern our nation. As you say, we have finite laws to work with, and they don't cover everything - so why on earth would you not take a look at what others have done, as a reference? Just like state courts look to other states' decisions for guidance, even though the laws of each state are slightly different.

 

Second, I hope everyone realizes that the laws of this country, Constitution included, were guided in great part by finding the best in breed from other countries. Our laws are rooted in common law and other laws already present in other countries well before our laws existed. The US didn't invent the concept of law. So, our laws and court decisions are all influenced by foreign laws already anyway.

 

Your point kinda reinforces mine. We have picked the laws we want to pick for a reason. Why should judges get the legislators jobs of picking the new laws? To me is breaks the chain of checks and balances.

[Jenksismyhero]

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

 

So? One case doesn't prove your point. Dred Scott. How'd that work out?

[NorthSideSox72]

Your point kinda reinforces mine. We have picked the laws we want to pick for a reason. Why should judges get the legislators jobs of picking the new laws? To me is breaks the chain of checks and balances.

I don't think it breaks it at all. If SCOTUS gets a case where existing law (case or legislated) is not relevant or clear, they have to make a decision, which is de facto creation of law. They have no choice - they have to decide the case as it would best seem to fit into US legal system. And to do that, to interperet the spirit and core of US law when the specifics aren't there, it only makes sense to reference other common law countries to see how they handle it.

 

The legislature could then later, legislate anything they'd like.

 

[Jenksismyhero]

People keep missing two things here. First, no one, Ginsburg or otherwise, is saying we look at other laws when we already have related laws or jurisprudence in place that give us the answer. So no one is trying to use other laws to govern our nation. As you say, we have finite laws to work with, and they don't cover everything - so why on earth would you not take a look at what others have done, as a reference? Just like state courts look to other states' decisions for guidance, even though the laws of each state are slightly different.

 

Second, I hope everyone realizes that the laws of this country, Constitution included, were guided in great part by finding the best in breed from other countries. Our laws are rooted in common law and other laws already present in other countries well before our laws existed. The US didn't invent the concept of law. So, our laws and court decisions are all influenced by foreign laws already anyway.

 

States using other state decisions is a good point, but I still feel like that's within our society and therefore more appropriate. Yes our Constitution and laws were based on english law, but it's been 200 years and in a variety of these fringe, moral issues we have (as peoples) very different opinions on what is "right."

[Jenksismyhero]

I don't think it breaks it at all. If SCOTUS gets a case where existing law (case or legislated) is not relevant or clear, they have to make a decision, which is de facto creation of law. They have no choice - they have to decide the case as it would best seem to fit into US legal system. And to do that, to interperet the spirit and core of US law when the specifics aren't there, it only makes sense to reference other common law countries to see how they handle it.

 

The legislature could then later, legislate anything they'd like.

 

So you think international law would help SCOTUS decide a case that best fits the US legal system? I don't see how that's possible.

 

And btw, it is VERY rare that SCOTUS gets a case of first impression, unless we're talking about a new law, which is still rare. So i'm still not sure what types of cases she's talking about. I do know that this is a big topic of debate in the legal world, especially with constitutional scholars. In every major era of SCOTUS there has been a proponent of looking at other countries. It's especially true more recently because the Justices (some of them anyway) travel around the world on a fairly regular basis and speak with other high ranking judges.