124 L. Q. Rev. 253 (2008)
Foreign Precedents and Judicial Reasoning: The American Debate and British Practice

handle is hein.journals/lqr124 and id is 255 raw text is: FOREIGN PRECEDENTS AND JUDICIAL REASONING:
THE AMERICAN DEBATE AND BRITISH PRACTICE
INTRODUCTION
THE citation of foreign law has been a matter of controversy for sev-
eral years in the United States. The debate has been reflected in vigorous
exchanges between Supreme Court Justices,1 but has not been confined
to the pages of the law reports. Justices who have cited foreign law have
been criticised in the media, and a series of proposed resolutions have been
presented to Congress, seeking to prevent references to foreign or interna-
tional law other than English law up to the time of the adoption of the Con-
stitution. The issue also featured during the confirmation hearings relating
to the appointment of Chief Justice Roberts. The debate has not attracted
much attention in this country, and judges here, as elsewhere in the com-
mon law world, and in some civil law jurisdictions, have continued to refer
to foreign cases from time to time in a generally unselfconscious way.
The American discussion reflects a legal debate about the question
whether the Constitution should be given an originalist or an evolving
interpretation, and a related debate about whether the Supreme Court
should adopt a comparative approach or what Justice Ginsburg has referred
to as a lone ranger mentality.2 The points made by opponents of the
citation of foreign law, such as Justice Scalia and Chief Justice Roberts,
are not however relevant only in the context of American law or politics;
nor can they be attributed merely to insularity.3 Although the debate has
taken place against a background which does not have any exact parallel
in this country,4 it is nevertheless worth considering whether the points
which have been made may also be relevant to our own practice; and, if
so, whether we have adequately addressed them.
'See, in particular, Thompson v Oklahoma 487 U.S. 815 (1988); Printz v United States 521 U.S 898
(1997); Atkins v Virginia 536 U.S. 304 (2002); Lawrence v Texas 539 U.S. 558 (2003) and Roper v
Simmons 543 U.S. 551 (2005).
2A Decent Respect to the Opinions of [Humankind: The Value of a Comparative Perspective in
Constitutional Adjudication [2005] C.LJ. 575 at 577.
3cf Markesinis, National Self-Sufficiency or Intellectual Arrogance? The Current Attitude of American
Courts Towards Foreign Law [20061 C.L.J. 301. Justice Scalia is himself a former academic teacher of
comparative law.
4The American concern about the extent to which judges are expected to act as arbiters of issues of
morality and politics, leading to the politicisation of the judicial appointments process, is not however
fundamentally different from the concern expressed in the United Kingdom about the impact of human
rights law on the role of the judiciary. An analogy might be drawn between the doctrine of the evolving
Constitution and the living instrument doctrine of the European Court of Human Rights.

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