Constant Conservative

In a country which still pays lip service to the rule of law, precedent is critical. Legal precedent is essential for equality, continuity and stability under the law. However, judges are increasingly willing to cite precedents from courts which neither have jurisdiction in this country nor yet a legal basis in common. Justices Scalia and Breyer debated whether the courts should indeed cite law from outside the country (full transcript of the debate here). Among other things, Justice Scalia had the following to say on the matter:

I don’t know what it means to express confidence that judges will do what they ought to do, after having read the foreign law. My problem is I don’t know what they ought to do. What is it that they ought to do? You have to ask yourselves, Why is it that foreign law would be relevant to what an American judge does when he interprets — interprets, not writes — I mean, the Founders used a lot of foreign law. If you read the Federalist Papers, it’s full of discussions of the Swiss system, German system. It’s full of that. It is very useful in devising a constitution. But why is it useful in interpreting one?

Now, my theory of what I do when I interpret the American Constitution is I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don’t think it changes since then.

Now, obviously if you have that philosophy — which, by the way, used to be orthodoxy until about 60 years ago — every judge would tell you that’s what we do. If you have that philosophy, obviously foreign law is irrelevant with one exception: Old English law, because phrases like “due process,” the “right of confrontation” and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it’s all old English law.

All right, if you have that theory, you can understand why foreign law is irrelevant.

The problem with using legal precedents from other countries is very simple: No other country, including modern-day Great Britain, has the same foundation in law as do we. No other country has our constitution. No other country has our 200+ years of legal history.

If one considers the various foundations for law in countries around the world, it becomes apparent rather quickly that one could find a precedent for just about anything, no matter how strange. For instance, by looking at the legal precedents set in North Korea, once could justify summary execution for making international phone calls. Of course, most would see this as a very poor precedent, which should not be followed, but that is beside the point. The point is that it makes no sense to weave in precedent from a non-congruent body of law.

Good laws, like people themselves, have ancestors. Much as I can trace my ancestors back hundreds of years, through generation after generation, every law in our country should be able to trace its way back to a state constitution or the the US Constitution, then what Scalia calls “old English law,”  all the way back to natural law.

In short, no good law can exist without the support of all its precedents. That’s why, when we pass laws or interpret laws so as to make new law–without grafting them onto precedent which is firmly based in our country’s own foundational legal documents and known antecedents, we are truly on dangerous ground.

One difficulty with precedent which we have today is that we have established a number of precedents which themselves rest on nothingness. These might be properly termed illegitimate precedents, as they are not descended from the “family” of laws, as it were, which was previously in place. When these unsteady precedents are cited in new decisions, we are making a further mockery of the rule of law.

Only God is able to create ex nihilo–the rest of us ought to be absolutely certain we are basing our legal creations on solid foundations.