Article by Sir Basil Markesinis
Those who object to the use of foreign law by national courts will invoke a series of well-rehearsed arguments in favour of their position. Some are ideological. In the United States, for instance, Justice Scalia recently stated that he did not think it was right that “approval by ‘other nations and peoples' should buttress our commitment to American principles any more than . . . disapproval by ‘other nations and peoples' should weaken that commitment.” His entire life at the bench has been to oppose even the dialogue with other systems; and a number of academics would agree with this position. Other arguments however are more pragmatic; and in that sense, they can be surmounted only with technical and empirical evidence. They refer to the judge's lack of time, lack of expertise, lack of materials in his own language, inability to be up-to-date, deep differences in the background of each system (which make borrowing difficult if not dangerous) and so on. All of the above represent well-recognised dangers associated with this enterprise of comparative law and, as such, they have been stressed many times. Though not without some force, all, I think, can be addressed if the will is there to look at them rationally on the basis of evidence, not unsubstantiated rumours or false images.
What has not been considered in a national (and even less so comparative) context is mentality, especially judicial mentality. As I will argue in this Article, this represents more of an obstacle to, rather than a danger of, using foreign ideas. In real life, it may well be the most important inhibitor of the use of foreign material and the reason for invoking (sometimes plausibly, in other instances as a transparent excuse) the previously mentioned factors in order to avoid even looking at foreign law. Having said this with a fair measure of conviction, I must do what all academics must do, namely consider the opposing arguments. I must thus hasten to warn of the danger of forgetting that the factors that go into producing a judicial opinion (and, even more so, the decision of a court) can be almost infinitely variable. The way these variables coalesce can be so complex that one can, at best, only conjecture (as I have done) on these matters and not speak with the degree of certainty that I have manifested. Everything that follows must be read in this light.
Yet, be it an inhibitor or the most important inhibitor against the use of foreign law the fact is, as stated, that the role played by mentality has not been properly studied and, as a result, its importance may have been underestimated. This is probably because it is such a difficult factor to define in a satisfactory manner (as psychological factors invariably are) and then link in a causative way to a particular decision. Even the term I have chosen to use may not capture accurately all of the points I shall make in this Article. Just as importantly, it is very difficult to weigh and compare meaningfully with the other variables that go to make judicial choices.
The reason for this neglect is not hard to discern. For the kind of information which this “judicial psychobiography”—as it is sometimes known in the United States—requires in order to understand the outlook of the judge whose work is being examined calls for material coming from a combination of very different sources and disciplines. One must thus try to digest judicial biographies and try to acquire an understanding of the historical times during which the objects of these biographies performed their functions, received their education and training, felt the impact of their professional environment and ethnicity, delivered their extrajudicial (as well as judicial) pronouncements, and formed their allegiances (which includes political ideologies, more obvious in some systems than in others) and wider religious and societal beliefs, to mention but a few. Human character and psychology may be relevant as well, even though lawyers such as myself, trying to understand such psychological factors, “lack ‘the tools and the daring’ to plumb the psychological roots of judicial behavior.” So, in the end, the “investigating” author must combine knowledge with intuition born from experience if he is even to begin this kind of survey. But if, as the few studies that exist on this kind of topic suggest, a link can be established—in the national context—between outlook, character, and judgment, why cannot the same factors play a part in shaping the judge's attitude towards foreign law? If the possibility has not (yet) been explored in America, it may be because the whole question of foreign law before American courts has only recently become a burning issue.
This Article, therefore, represents my own effort to come to grips with a subject from the vantage point of foreign law and different legal systems. I do this not only because from this angle the enquiry is entirely virgin; but also because I believe that my own cosmopolite environment has sensitised me more to this factor than those who have grown up and worked in one environment only. Indeed, as Professor Alan Watson once observed (when discussing how the culture of the judges can often help shape a result which runs counter to reason or precedent), “[i]t will usually be outsiders, and especially outside lawyers, who [will] see the absurdity of legal reasoning in this fashion.” Yet from the outset, I repeat my difficulty of linking judgments conclusively to individual personality traits and believe that the shape and content of the ultimate decision is the result of many factors including the one I investigate here.
This opening Part must end with one further admission of weakness.
In what follows, I am conscious that my readers will experience some difficulty with my decision not always to identify the individual lawyers I have in mind when (tentatively) recording my thoughts on how mentality may condition a judge's (or jurist's) attitude towards foreign ideas. I have adopted this attitude in order to avoid becoming “personal,” especially where my statements and impressions are derived (as they often are) from long private talks with living judges and academics.
The “anonymity” rule I have opted for brings in its wake risks, notably that such “undocumented” or “nonattributable” statements may weaken the persuasive value of my observations and ideas. Though this is inevitable if one is to avoid giving, even indirectly, the slightest ground for offence it would, in my view, also be regrettable if it also led to their hasty rejection on the grounds that they are either too fanciful or appear to be uncorroborated by hard evidence to warrant further consideration. The only exceptions I have made to this self-imposed rule is where the jurists I refer to are dead or where they have, themselves, expressed (judicially or extrajudicially) the kind of arguments that lend support to the present discussion.
About the Author
Sir Basil Markesinis. Queen's Counsel, LL.D., University of Cambridge; DCL, University of Oxford. Professor of Common and Civil Law at University College London; Jamail Regents Chair of Law, University of Texas; Fellow of the British Academy; Membre Correspondent of the Institut de France; Socio Straniero, Accademia dei Lincei (Rome); Member of the American Law Institute.
Citation
80 Tul. L. Rev. 1325 (2006)