Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence - The Indian Case

Abstract

Recent debate concerning the use of foreign law in domestic jurisprudence in the US and elsewhere has been hampered by a fundamental misconception regarding judicial autonomy. Even in the most consolidated of democracies judges remain a part of the social and political fabric of their increasingly globalized societies, a placement that both empowers and constrains choices they make on the bench. This essay argues that the use or neglect of foreign law by judges is one aspect of these limitations: dependent upon their relationships with broader society, judges feel that they either must or must not use foreign law in their decisions. This dialectic between judge and society is fluid, explaining, at least in part, changes in the use of foreign law over time. The article examines this hypothesis via an investigation of patterns of foreign law usage in the decisions of the Indian Supreme Court, an institution similar to both the US apex court and those of many post-World War II constitutional states. Examining all judgments issued by the Court since its founding in 1950 through 2004 (approximately 15,000 cases), a clear correlation is seen between the tenor of Indian history, the growth and contraction of certain individual and group rights, and the use of foreign law. Extrapolating from the Indian case it appears that the modern use of foreign law in domestic jurisprudence in states throughout the world is not a function of simple judicial caprice - as critics have often claimed - but rather is an identifiable and predictable component of the globalization process.