The Irish Times - Monday, January 24, 2011

Judges look to foreign counterparts for guidance, survey shows

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BRIAN FLANAGAN

WE ARE SAID to be living in an era of “cosmopolitan constitutionalism”, in which lawyers and judges increasingly look abroad for guidance when interpreting their own constitutions.

The practice is controversial in the US, where Congress has denounced references to the law of European nations in cases concerning sexual equality and the death penalty.

A judge is said to use “foreign law” when he or she interprets domestic laws by reference to the law of other nations.

In an Irish context, it would include seeking guidance from US Supreme Court decisions say, but not from those of the European Court of Human Rights, whose authority Ireland has officially recognised.

Establishing why judges look abroad, how often they do it, and which sorts of countries they look to will reveal whether “cosmopolitan constitutionalism” is likely to benefit the development of Irish law.

Scholars have studied judges’ use of foreign law through examining the foreign references contained in their judgments and by analysing their public statements about the relevance of foreign law to legal interpretation.

A direct inquiry, in which judges are asked in confidence about their use of foreign law, promised to complement these efforts. Accordingly, in early 2006, an international survey of Supreme Court judges was conducted.

The results are published in the forthcoming issue of the International Comparative Law Quarterly and the collected data is available at http:hex.do.org10.3886hiccups29121

Of the 103 judges surveyed, 43 responded, including members of the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa and the supreme courts of Ireland, India, Israel, Canada, New Zealand and the United States.

The survey’s findings cover three main issues: the impact of foreign judges on constitutional interpretation; the basis on which judges cite foreign law and judges’ attitudes toward legal objectivity in hard cases.

The survey indicates that many Supreme Court judges see their foreign counterparts as a possible source of guidance on the content of constitutional rights.

For instance, 50 per cent indicated they had had personal contacts with judges of other jurisdictions that had contributed to their analysis of domestic rights.

Such judges tended to make more frequent reference to foreign law in their judgments.

Similarly, those who frequently referred to foreign law were more likely both to express greater professional esteem for foreign judges than domestic subordinates and to give priority to attendance at speeches by foreign judges on rights (a priority attributable to more than 50 per cent of judges generally).

With regard to why judges use foreign law, the survey offers support for three competing hypotheses.

The idea that judges compare so as to secure professional approval or acceptance from foreign judges is corroborated by the tendency of those expressing greater professional esteem for foreign judges to point to international human rights law as the most useful tool for settling rights questions.

Some such judges may see reference to human rights treaties as a welcome opportunity to engage in the interpretation of common legal instruments.

As against this explanation, however, there was no appreciable correlation between high professional esteem for foreign judges and frequent reference to foreign law.

The second hypothesis is that judges look abroad for input to improve the quality of their constitutional interpretations.

Judges are said to see foreign law as a persuasive rather than a binding legal authority – as “authority which attracts adherence as opposed to obliging it”. (Patrick Glenn).

This motivation is consistent with the fact that most judges say their use of foreign law is affected by a concern that they appreciate the foreign legal context and that they adhere to general criteria in assessing whether a particular jurisdiction may be compared, e.g., whether the country is democratic.

Finally, some suggest that judges refer to foreign law only when it happens to support their preferred interpretation. Foreign law is said to lend itself to such opportunism in a way that domestic precedents do not.

“Any judge wanting a supporting citation has only to troll deeply enough in the world’s corpora juris to find it.” (Judge Richard Posner of the US Circuit Court).

In keeping with this theory, a fifth of judges rated “increasing the chances that a legal authority can be found to match what you already believe to be the best result from a policy perspective” the most important reason for foreign comparison.

A further two-thirds rated this to be an important reason.

As an apparent admission of false advertising, there would seem to be a bias against judges revealing, even in a confidential survey, that they look abroad for the purpose of finding a legal authority to fit the outcomes they consider best for policy (non-legal) reasons.

Overall, the survey confirms that some judges see foreign law as an aid to arriving at more insightful legal interpretations, but suggests that citational opportunism and an interest in recognition from foreign judicial counterparts are equally important motivations.

A “cosmopolitanisation” of constitutions seems under way, but its impact on their judicial interpretation appears to be both complex and patchy.

Its impact is complex because of the co-existence of sociological pressure with the interest in looking abroad as an interpretive technique and patchy because opportunistic references to foreign law affect the form in which legal decisions are defended rather than their substance or method.

Brian Flanagan is a lecturer in the department of law at NUI Maynooth. The survey’s statistical analysis was conducted by Sinéad Ahern, a PhD candidate in clinical psychology at UL. The department of law at NUI Maynooth will host a roundtable on the survey’s findings later this month to be led by Lord Alan Rodger of the UK Supreme Court and Mr Justice Nial Fennelly of the Irish Supreme Court