Constructing the 'Foreign:' American Law's Relationship to Non-Domestic Sources

Abstract

A vivid narrative in the United States is that the use of non-United States law is problematic. Justices on the Supreme Court have written opinions objecting to non-domestic sources and legislators have proposed statutes and constitutional amendments enjoining government officials from relying on foreign sources. But a counter-narrative exists, which is central to this essay. America is a country of migrants, as is our law. The construction of law as “domestic” or “foreign” and the attachment of positive or negative valences take place in many venues, national and subnational, shaping “American” understandings of its own production of and nexus to law. The borders are porous and various routes serve to domesticate as well as exile “foreign law.” Indeed, the reason I place “foreign” in quotes is to underscore the work entailed in that branding and to invite interrogation of the choices made when labeling law domestic or foreign. This essay explores various routes through which Americanization and “foreign-ization” (to offer an awkward but parallel locution) take place. I examine how “foreign” sources may be acknowledged, embraced, ignored, and ostracized to show both the impossibility of avoiding foreign sources in a legal system built on liberal federalism principles and the irresistibility, in a networked age, of learning from and being influenced by foreign law. But debate continues, requiring examination of the legal and normative implications of the use made by courts, the executive branch, and legislatures at national, state, and local levels. Therefore, I also address the legal puzzles raised under U.S. law be directives addressed to judges. In addition to analyzing the bans, some of which have been enacted, I also ask the question of whether mandates to require that judges consider foreign law would be constitutional. Does the Constitution itself invite or prohibit examining foreign law? Does the allocation of powers among branches in the federated government make judges subject to, or immune from, directions on the sources to consult when rendering judgments? Given the thicket of case law, answers require choosing among ideas about the scope of authority of common law judges in state and federal systems and parsing competing lines of doctrine on separation of powers, judicial independence, due process, the First Amendment, and federalism. That effort illuminates that some of the alleged vices of foreign law – interpretative freedom without accountability – cannot be avoided, as conceptions of the judicial role are themselves imbedded in transnational doctrines. My focus is not on the function to which foreign law is put but rather on the sociology of using foreign sources; as I detail, the turn to foreign sources is not exotic and no more or less disciplined than looking at other resources. The anxieties evidenced by the insular sovereigntist position need to be appreciated – especially by jurists. The focus of such concerns stem from commitments to law as a source and as a means of building political community. I seek to disconnect the equation of a sovereigntist stance from isolationism by showing how, in the name of its legal system, a country could – and some do – insist that their own individuated legal identities require consideration of external sources. In short, to appreciate a role for “the foreign” need not diminish the degree to which the United States is a liberal constitutional order reliant on owning its law as a source of identity and of affiliation.