Quote of the Day - The whole world is in revolt. Soon there will be only five Kings left--the King of England, the King of Spades, The King of Clubs, the King of Hearts, and the King of Diamonds. - King Farouk of Egypt
Can The Supreme Court Look To The World For Guidance?
Perhaps this topic is better left to the academics in the crowd, but it seemed interesting, so as a practitioner, I'll put my views up for peer review. How's that for a disclaimer?
It seems that citation to international law has been cropping up with more frequency (see page 21 of the opinion) lately. Justice O'Connor doesn't see it as a problem, but Justice Scalia disagrees.
He argues that the decisional law of, say, South Africa, isn't going to tell us much about the U.S. Constitution. Well, maybe not. On the other hand, the Constitution wasn't created in a vacuum. It was developed, in large part, as a rejection of monarchical law in England. But the founding fathers (and yes, they were all men) didn't just reject English law, they adopted much of it in the interpretation of our laws.
It's called context. Would it be unreasonable to turn to English law for assistance in interpreting our laws? I think not. There's not a lawyer who graduated from law school that doesn't know about Blackacre and Justice Blackstone (see section 77, et seq.).
But if we recognize that many of our laws were derived from England (and, consequently, Roman and Greek law, arguably all the way back to the Code of Hammurabi) where do we stop? Is South Africa just one of the branches that we need to look at in order to understand our own laws?
Depends on whether we continue our history of isolationism. Will the world get any smaller?