It involved statutory interpretation and I agree with Scalia here. I know that he in fact does cite foreign judgments at times but with his well know antipathy to them (granted mostly limited to constitutional interpretation)
Yeah, really, Courts in general shop around for references that inform the direction in which they lean. Nothing unusual about that,
However what makes it remarkworthy is that there’s a faction of the conservative right wing, that vocally objects to citing or quoting “foreign” jurisprudence or law. Of course, as Scalia himself shows here, long as your actual decisional basis is from the Constitution, Laws and jurisprudence of the US you should be able to go ahead and quote or cite examples of how someone else deals with the issue. Thing is that you have then situations like the Oklahoma legislature passing laws categorically stating that the judiciary may not rule on the basis of foreign law, when they never have anyway.
In which case the response is “So?” It is not unusual for judges to rule in this manner, and in fact is expected otherwise why would their confirmation hearings be contentious? You may find this to be a lack of consistency, but that’s another matter.
It is not unusual, in my experience, in the courts of the common-law countries, to refer to (but not necessarily follow) decisions reached in other common-law countries. Certainly, here in Canada, our Supreme Court has referred to judgments in the UK, the US, Australia, New Zealand, India, etc.
However, it is important to note that no foreign decision is ever binding upon our courts. We decide our own law, thankyouverymuch, but foreigners’ decisions do prove useful in helping us decide.
I’m surprised to find that some Americans think they are unique in the common-law world, and that as a result, other common-law countries’ precedents should never be considered. While the US has a great body of common-law precedents to draw upon, it would seem to me that in matters touching upon common-law principles that are similar in other countries, and especially in higher levels of courts, the US is doing itself a disservice if it does not at least consider what foreigners have done in similar situations.
Courts of ultimate appeal in places other than the US tend, as Spoons said, to traverse the body of learning from around the world on a particular topic. This is akin to the academic discipline of first reviewing the literature in a field before jumping in with your own addition to it. ITSM that this is a mark of maturity. A court doesn’t have to agree with the foreign approach, and there may be good reasons not to. But at that level, given that things are unappellable from that point on, it can’t hurt to see what the wisdom of others says.
That said, the US constitution is unique, and there is little point in stepping outside the US pond of authority in interpreting it.
What is pertinent to note about Scalia is that he is without a doubt the most intellectually able and well read of the Justices and he is the one who is the most cognizant of foreign judgments, perhaps even more than Breyer. Which is what makes his stance even more puzzling to this outsider, I can understand reluctance to follow an otherwise attractive foreign precedent when you are unfamiliar with foreign jurisprudence, after all said precedent may be based on attributes peculiar or circumstances unique to that jurisdiction, but Scalia has no such excuse.
Scalia doesn’t cite the House of Lords for their authority on some point of substantive law. He refers to their opinion to show that a particular rule of statutory construction has a widespread history and lineage. If you removed that citation and paragraph from his opinion, it would change nothing.
Here’s what he says:
All he’s using that House of Lords opinion for is the expression that the phrase “in addition to” and the phrase “in addition to and not in derogation of’” are functionally identical, for the general proposition that in statutory construction, merely emphasizing a point does not create a new meaning.
This pisses me off, this immediate jump to, “Look, look, foreign law cited by Scalia!” Do you leap up in court and yell, “Objection, hearsay,” the moment a witness utters the word said? No – the question of hearsay is more nuanced than that. So, too, is the issue of citing foreign law, and the objections to doing so are NOT simply mentioning a foreign law principle like this.
The objection to citing foreign law is not grounded in the mere mention of foreign law for some collateral matter.
Obviously Scalia isn’t going to cite a foreign judgement as a binding precedent. But can you explain how what Scalia did in Davies v. Powell is substantially different than what Kennedy did in Lawrence v. Texas? Scalia specifically has cited Lawrence as an example of the improper citing of foreign decisions but he appears to be doing exactly what he condemned.
As I explained above, in Ransom v. MBNA America Bank, Scalia cites the British case Davies v. Powell Duffryn Associated Collieries, Ltd. in support of his claim that “When a thought could have been expressed more concisely, one does not always have to cast about for some additional meaning to the word or phrase that could have been dispensed with.” This is a principle of statutory construction and of the general English language, and, more critically, it’s NOT the issue before the court. It’s a collateral issue showing how words in the English language are read.
In Lawrence v. Texas, Kennedy cites Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981), to show that laws prohibiting homosexual conduct run afoul of human rights – the exact question under consideration in Lawrence. Nota collateral question, not a broad question, but the precise substantive legal question.
Bricker I agree the use of Dudgeon* in Lawrence was untenable. I would however say that the use of the HoL precedent is not for a collateral issue, it is on a question of statutory interpretation or more accurately the rules of interpretation. That was a major question in the case as I read it.
There are lots of reasons to refuse to follow a foreign precedent, good logical reasons. The reasoning adopted by Scalia is not one of them.
*In so far as the convention has a enuciated right to privacy, something missing in the US Constitution.