The Semantics of Openness. Why References to Foreign Judicial Decisions Do Not Infringe the Sovereignty of National Legal Systems

Abstract

Judges in different jurisdictions tend to quote foreign verdicts while deciding domestic cases. This practice flies in the face of the well-entrenched theory according to which law is a production of a domestic, sovereign lawmaker and foreign judicial decisions are irrelevant to its interpretation. In this paper I answer the question why the practice does not follow the theory and argue that it is not the former that should be changed but the latter. I show that the notion of a sovereign lawmaker is based on an author-centred theory of language, semantic internalism. This theory states that the sole source of meaning is the intention of a unique speaker. An alternative theory of language, semantic externalism, locates the meaning in the relationship between language and external reality, which is broadly similar in all languages and jurisdictions. Semantic externalism better explains why judicial borrowings are ubiquitous amongst different jurisdictions and thereby provides a better theoretical underpinning for this behaviour.