Article by Konrad Schiemann
The assertions by Markesinis and Fedtke (authors) that “[i]n recent times the interest shown by American writers in foreign (and especially European) law appears to have diminished” and that “[i]f academic interest in foreign law has been slender, judicial interest, especially in the domain of public law, has been even thinner,” induced in me a feeling of regret.
The view, which I share, that a national judge cannot in the vast majority of cases usefully spend much of his time looking abroad for inspiration is widely held and not just in the United States. This view tends to be based, in my experience, on the conviction that, in general, the results of such a search do not justify a judge devoting time to the exercise. Often foreign law is, at the end of the day, of no help to him in deciding the case before him. Even where it could be of some help, a little knowledge is a dangerous thing and he does not have much time to drink deeper from the spring.
But I am here not concerned with the vast majority of cases or indeed primarily with courts below the highest. What I find puzzling is an objection made by members of a supreme court on grounds of high principle to the reception of inspiration from abroad. That such an objection should come from the United States seems particularly strange given the nature of the history and outlook of that wonderfully welcoming country which has given the world so much. The United States, after all, is distinguished peculiarly by its absorption of foreigners and their ideas over centuries. Indeed the Native American might consider that it is a country run by foreigners. It is a country with a variety of legal systems within itself. The leaders of the United States are often to be heard advocating the adoption by other countries of the American democratic ideals. They advocate—at any event from time to time—the abolition of barriers to free trade. Free speech is a primordial value. A deliberately fostered blinkered approach to life just does not seem in accord with much for which America stands.
I am conscious that the strangeness may be in part the result of the fact that I have no great familiarity with American constitutional law and that I find the theoretical position of the originalists a difficult one. But I would think it highly regrettable if the adoption of this theory in relation to the Constitution of the United States had the result of diminishing the study of foreign law from the intellectual diet of judges and academics.
Professor Markesinis has for some years been putting forward the thesis that for judges to refuse in principle to look abroad for inspiration is needlessly to clothe themselves in a restricting intellectual corset. He rightly stresses that there is no question of a national court being bound to adopt the analyses and solutions which appeal elsewhere. It is a question of being broadly educated and open to ideas which, although new in one country, have a history elsewhere.
If I find the general drift of the argument put forward by him appealing, it may well have something to do with my personal background which, like his, lacks an exclusive attachment to a particular national order. For anyone who lives in Luxembourg—a country of half-a-million inhabitants whose boundaries have shifted many times over the centuries—the idea of having as a constitutional principle an isolationist theory that judges should never look beyond their national boundaries is simply inconceivable. But I do not understand the isolationists in the Supreme Court of the United States to put forward any such universal theory. They speak only for the United States and are happy for their country to adopt such a policy and proceed on the basis that there is no need to take any interest in the world outside. I accept that there are precedents for such an approach to life's problems. As I understand it, China did just that for centuries.
I grew up in Luxembourg and the first court that I observed in action was the Court of Justice of the European Communities (ECJ) there. Although most of my professional life as a barrister and judge has been spent in England, I have come now full circle and sit in a court of judges from twenty-five different legal traditions in the ECJ. This Essay is an attempt to share the perceptions that have come from that experience.
About the Author
Konrad Schiemann. Judge of the Court of European Communities and former Member of the English Court of Appeal.
Citation
80 Tul. L. Rev. 281 (2005)