FOR EDUCATIONAL USE ONLY
33 Ohio N.U. L. Rev. 99
Ohio Northern University Law Review
2007
Articles
*99 EUROPEAN LAW IN AMERICAN COURTS: FOREIGN LAW AS EVIDENCE OF DOMESTIC LAW
Eric Engle
Copyright © 2007 Ohio Northern University Law Review; Eric Engle
I. Introduction
An airliner nearly crashes.
[FN1] Cops arrest lovers having sex.
[FN2] A child who has murdered is to be executed.
[FN3]
These facts and the legal claims that arose out of them may seem to
have nothing to do with each other. Yet, in all three cases the U.S.
Supreme Court invoked European law to determine claims under U.S. law.
The world is getting smaller, so our minds must grow.
U.S. courts have in many cases, and at the highest levels,
[FN4] considered
the decisions not just of British Courts but also of the European Court of Justice
[FN5] and the European Court of Human Rights
[FN6] as persuasive evidence
[FN7] of the
*100 interpretation of domestic U.S. laws. This is as it should be. "There is not one law in Athens and another in Rome."
[FN8] Rather, descriptive monism sees the law as a seamless whole.
[FN9] The competing view, dualism,
[FN10] posits that national and international legal orders are hermetically isolated.
[FN11] Yet, the national legal practice of courts in the United States,
[FN12] in Europe,
[FN13]
in fact throughout the world, show that the dualist thesis, at least
its extreme version of a strict separation and independance of national
and international law, is not a valid description of reality. Monism is
the better description of the factual relation of national and
international legal orders.
[FN14]
Though
foreign and national law are inevitably interwoven, U.S. courts tread
on thin ice whenever they look to foreign law. Should U.S. courts
ignore the votes of U.S. citizens and embrace a foreign law when
interpreting the U.S. Constitution?
[FN15]
The dissent in Roper v. Simmons rightly points out the illiberal views
of foreign states regarding use of illegally seized evidence, the
absence of separation of state and religion, and the fact that many
foreign states still criminalize abortion or make access to abortion
more difficult than the United States.
[FN16] Additionally, comparative law is problematic because sometimes
*101 foreign courts are cited by U.S. courts, but
ignored.
[FN17] Like the advice of the Delphic Oracle, when the foreign law says what we want to hear, we listen.
[FN18]
What
is a principled liberal internationalist to do? Of course, a person who
appreciates the general principle of international law of the right to
life
[FN19] has no problem
when comparative law leads to a conclusion that law bans or discourages
both capital punishment and abortion as justice opposes death and
protects the weak. But for those less visionary, comparative law
highlights apparent moral quandaries. Thus, it is in cases that appear
most morally conflicted that the Court, in desperation, is willing to
take a closer look at foreign law.
Not
just the question of domestic legitimacy, but also problems of
languages and sources of law make examining foreign law problematic at
best, embarrassing at worst. However, language and legal culture pose
no problem in interpreting British law.
[FN20] Moreover, as the several United States and their federal government are successor states to the British crown,
[FN21] British law, at least prior to the revolution, is the basis of U.S. law.
[FN22] British law is thus particularly relevant to U.S. law.
[FN23]
But, the dissenting view in Simmons rightly points out that British law
is evolving toward European civil law as a result of accession to the
European Community Treaty.
[FN24]
*102
However, the dissent in Simmons overstated its case and undermined its
argument. European law is also evolving toward British law and, in
fact, all
world legal systems are converging on each other
due to transnational institutions, such as the WTO and NAFTA, and
because of instant global communications. In fact, a more nuanced
dissenting position is possible and the Court is divided as to how much
weight it should give foreign law.
[FN25]
In
one of those cases in which the U.S. Supreme Court looked to foreign
law, Eastern Airlines v. Floyd, the U.S. Supreme Court got it wrong.
The Court in Eastern Airlines reaches the right substantive result,
precluding liability to the physically uninjured passengers of the
nearly crashing airplane, but by a complete misapprehension of the
sources of law in a foreign legal system. The magnititude of the
Court's error is not just embarrassing to the Court and the United
States, it is dangerous to the transnationalization of law. The bad
example Eastern Airlines sets points out why excursions in foreign law
must either be in depth and open or superficial. "A little learning is
a dangerous thing, drink deep or taste not this Pierian spring"
[FN26] ought to be the motto inscribed before foreign legal wellsprings.
*103 A. Foreign Law Inquiry: The Natural Law that Dares Not Speak its Name?
The
Court in its use of foreign law does not admit to invoking the idea of
natural law, but that is what it is doing. It is looking for universal
standards to be discovered in the law of foreign nations, "out there."
Better still, the Court is developing a materialist natural law!
Idealist views of
natural law proceed from eidetic noesis
(deduction from transcendant ideal entities) and thus can get divorced
from reality quickly (just look at poor Hegel) resulting in theoretical
abnegation. However, the Court is not examining the general principles
of law (inter alia, proportionality;
[FN27] equality;
[FN28] liberty;
[FN29] self defence
[FN30])
as embodiments of the Weltgeist or Zeitgeist. Rather, the Court is
looking at what other foreign legal systems do in the material world of
praxis.
In
a globalizing world, the materialist natural law thinking will likely
contribute to economic integration, peace, and prosperity. Do not
expect foreign law in U.S. courts to disappear, but do expect it to
cause problems. An example of the sort of problems foreign law in U.S.
court can create is given in the case of Eastern Airlines.
II. Cases
A. An Analysis as Wrong as it is Deep: Eastern Airlines v. Floyd
Eastern Airlines involved an plane which nearly crashed, frightening passengers.
[FN31] Some passengers wished to sue the airline company to compensate their psychological injuries.
[FN32]
The passengers were subject to the Warsaw Convention for the
Unification of Certain Rules Relating to International Transportation
by Air.
[FN33] The only authentic text of the
Warsaw
*104 Convention is French, and thus the Court had to follow the French text in its analysis.
[FN34]
The treaty used the term "tout autre lesion corporelle" to describe the
injuries resulting from accidents which could be remedied.
[FN35] The Court correctly took the first step-literal interpretation
[FN36]-and noted, again correctly, that the term "lesion corporelle" is most exactly translated as "bodily injury."
[FN37]
The only question then was whether pure emotional damages are a bodily
injury. Under a literal plain meaning of the term, they are not. Thus,
compensation would be denied under the Convention. Strictly speaking,
the Court should have simply focussed its energies on that inquiry and
stopped its interpretation once it determined the plain meaning of the
term.
The Court did not, however, follow the line of reasoning set out by Friedrich Carl von Savigny,
[FN38] which has been adopted in the Courts of Germany,
[FN39] France, the European Union,
[FN40]
and in common law. That is, interpretation should proceed from (1) the
literal plain meaning, to (2) a grammatical, then (3) an historical,
and then (4) a teleological interpretation,
[FN41]
stopping interpretation at each step if a clear resolution of the
interpretive question is reached. Instead, the Court mistakenly tried
next to justify its correct plain meaning interpretation of the French
term by looking not only at international law, but at French domestic
law
[FN42] to determine the interpretation of the meaning of the
same term in a treaty.
[FN43]
Since the international treaty is not a product of the French
legislator, the Court could as rightly have looked at Belgian
legislation or Swiss legislation, for example, if either state were a
party to the treaty. Looking to French domestic law for the meaning of
a term in an international treaty is also problematic because treaties
are usually open to a broader interpretation than domestic laws because
they address, generally speaking, broader subjects in time or space.
Certainly, the French usage of the
*105
term might be relevant persuasive evidence of its meaning, but so would
Belgian and Swiss usages. The Court drank, but not too deeply.
And
what of the French interpretation of "lesion corporelle" at the time of
the treaty's entry into force? In French law, that term was plain and
did not include psychological injuries.
[FN44]
Specifically, the Court said, "[o]ur review of these materials
indicates neither that 'lesion corporelle' was a widely used legal term
in French law nor that the term specifically encompassed psychic
injuries."
[FN45] Given a
term whose meaning is plain and no conflicting interpretation it is
understood, both in common law and in civil law, that the
interpretation is complete. However, the Court continued with its
interpretation. This was its worst error, for in so doing, it presented
a frankly erroneous understanding of the sources of French law and
their hierarchical relationships.
The Constitution is the highest source of French law. France has a written
constitution with limited judicial review
[FN46] via a special Court dedicated thereto-the Conseil Constitutionnel.
[FN47]
Following the Constitution, international treaties, which are an
integral part of French law, are next in the hierarchy of norms.
[FN48] After treaties, French courts will consider ordinary legislation.
[FN49] Shocking as it may be to a common law lawyer, international treaties outrank legislation in French domestic law.
[FN50]
Those are the written sources of law (among which also figure
presidential decrees and other regulations of the executive branch,
which are similar in operation to their U.S. homologues-executive
orders and administrative laws). Just as there is unwritten law in the
common law, there is also unwritten law in the civil law system. The
works of learned scholars (which is known as doctrine), general
principals of law
[FN51]
discovered by the scholars, case law, and customs are unwritten sources
of law (more accurately, evidence of the law and interpretations of the
law).
[FN52] Perhaps even more shocking to a common law
*106
lawyer is that case law is less authoritative than doctrine. Cases only
decide individual issues, but doctrine explains how to solve issues
generally and the method of reasoning in civil law is deductive. Of
course, case law incorporates and expresses the general principles of
law,
[FN53] but because cases only decide the issue presented, case law is generally not legally binding.
[FN54] Case law, doctrine, and general principles are interwoven and express transcendaent ideas
drawn from the written sources. The unwritten
sources of law develop and determine the meaning of the written
sources, with the exception of customary law which is an unwritten
source of law. While one could argue that doctrine and cases are merely
evidence of law, custom is in fact law. The definition of custom in
French law is just like that in the common law and international law:
long standing practice (usage) coupled with a belief that such practice
is obligatory.
[FN55]
Sadly,
the U.S. Supreme Court appears to have been ignorant of all these
facts. Consequently, it misapplied French law in a failed attempt to
put itself in the shoes of a French Court. First, it defined the
sources of French law as follows: legislation, case law, and scholarly
writing.
[FN56] The better
view, however, is to distinguish first between written direct sources
(the constitution, treaties, and ordinary laws, which include
regulations and executive orders; customary law is among the direct
sources) and the unwritten sources-more exactly, the interpretative
sources (cases and commentary, i.e., jurisprudence and doctrine).
Moreover, the Court did not list the general principles of law
[FN57]
as a source of law discovered by the scholars in the case law of the
Court and the written sources. The Court fundamentally misapprehends
the relationship
*107 of scholarly writing (la doctrine) and case law (jurisprudence
[FN58]) in French law. Custom, as a source of law in French law, is also ignored. Wrongly assuming that the sources of law and their
hierarchical relation are similar or even the same in France
[FN59]
and the United States, the Court placed case law as a hierarchically
superior source to doctrine, which is exactly backwards, and appeard to
assume that case law was binding.
[FN60]
The
Court also applied inductive inferencing when French Courts use
deductive inferencing. The Court said, "this general proposition of
French tort law does not demonstrate that the specific phrase chosen by
the contracting parties," lesion corporelle," covers purely psychic
injury."
[FN61] The Court
thought that the specific instance is controlling over the general
instance, which is exactly backwards in French law. This is the result
of ignoring the general principles of law entirely as a source of law
and that the principle form of reasoning in civilian law systems is,
unlike the common law, deduction not induction.
[FN62]
General propositions determine specific meanings in civil law. The
Court did not seem to understand the sources of French law and their
*108
hierarchical relationship or how to infer implications from them
properly. It applied the inductive method from the wrong sources in an
unneccessary effort. Consequently, it reached the right result for the
wrong reasons and looked, at best, uninformed about French law.
The
ignorance exemplified by unawareness of the deductive method, the
general principles of law and their development by scholars, and
application thereafter by courts continues. In what it clearly thought
as a convincing argument, the
U.S. Supreme Court argued:
[w]e
find it noteworthy, moreover, that scholars who read "lesion
corporelle" as encompassing psychic injury do not base their argument
on explanations of this term in French cases or French treatises or
even in the French Civil Code; rather, they chiefly rely on the
principle of French tort law that any damage can "giv[e] rise to
reparation when it is real and has been verified."
[FN63]
Yes,
this is a convincing argument, but it leads to the exact opposite
conclusion. The Court seemed to suggest that the French jurist should
first look to case law, like a U.S. jurist might do. But since case law
is not binding in French law, this is the wrong starting point. The
correct starting point would have been the civil code section cited,
followed by general principles, and then possibly case law as
confirming the principles which are expressed in the law. The Court did
not see the general principle as a transcendant source of law running
throughout legislation, cases, and the constitution. To a French
jurist, it is perfectly logical to look to the general principle first,
rather than the non-binding case law which is derived from it because
this is the deductive method. And what about the treatise that are said
to be ignored? Treatises are written by other scholars. Thus, it is
doubtful that a scholar would ignore other scholarship.
However, the Court could have made a much better argument which it did not
consider; it could have argued that the scholars'
opinions (doctrine) were not consistent. When scholarship is not
uniform, when it is not constant, then courts can go either way and
ignore one of the conflicting opinions and formulate its decisions. In
contrast, where the scholars are of one mind, there the court too is of
one mind. But the Court ignored the latin law origins of French civil
law. Since it clearly did not understand the role of scholarly writing,
it also did not understand when doctrine can be ignored by courts.
While
the author does agree with the result, he does not agree with the
Court's reasoning. The Court did not need to consider anything beyond a
plain meaning interpretation of the term "lesion corporelle," which is
facially clear and does not include psychological injuries. But the
court went further,
*109
and presented us with a perfect example of how not to do comparative
law-presume the foreign legal system has sources and structure similar
to your own. This presumption resulted in the Court ignoring the
obvious arguments that flow from the structure and hierarchy of the
foreign legal system.
One
might think wrong reason, right result-so what? But the U.S. Courts are
perhaps the most prestigious in the world. They are increasingly
required to apply, interpret, and consider foreign law. If the highest
court is ignorant about the structure and methods of America's first
and oldest ally, how ignorant are the circuits? The district courts?
How ignorant of Islamic law are the courts? Of socialist law? Of Jewish
law? Of Aboriginal law? How will the
Court deal with decisions of the European Court
of Justice and the European Court of Human Rights? How will the Courts
address mixed jurisdictions like South Africa and Quebec? The best
answer might be to send them all packing to New Orleans, the only
civilian law state. But how would the U.S. federal system cope with
that? The one thing that is clear is if you are going to do an in depth
analysis of a decision or term in a foreign legal system, you had
better well understand that system.
B. A Shallow But Convincing Case: Lawrence v. Texas
In
Eastern Airlines, we see the wrong way to do comparative law-refute
obvious positions by blissfully applying your own country's legal
methods to foreign law. There is a right way to do comparative law. In
Lawrence v. Texas, the U.S. Supreme Court was interpreting whether the
right of privacy in the Fourth Amendment protects homosexual lovers in
their own home from being arrested for consensual sex.
[FN64]
The facts of Lawrence are straightforward. The police, summoned to a
domestic disturbance, interrupted a homosexual couple having anal
intercourse in their home.
[FN65] Homosexual sex was illegal in Texas at the time.
[FN66]
The issue was whether the arrest and consequent imprisonment of the
couple was unconstitutional as a violation of the principle of the
right of equal protection found in the Fourteenth Amendment.
[FN67] The Court concluded that persons have a right
to privacy in the home. Regardless of the complex
constitutional issues, the interesting part of this decision is its use
of comparative law.
*110
The basic legal issues in Lawrence were not themselves remarkable. The
Supreme Court has long since permitted the derivation of implied rights
from the express provisions of the constitution-and quite rightly so,
since the constitution is by definition posed in general terms a priori
to be interpreted in specific cases ex post. The Court encounters close
cases all the time with competing norms, and must balance the different
interests of the parties to reach a sound result.
What
is so interesting about Lawrence is that one of the arguments the
Supreme Court made was based on a comparison to European Law. Namely,
the Court looked at the decision of the European Court of Justice in
Dudgeon v. United Kingdom.
[FN68]
But rather than getting bogged down in a senseless debate about the
direct effect of the European Convention on Human Rights, the sources
and authority of the European Court of Justice, or an in depth
examination of the decision to discover its nuances, the Court wisely
limited itself to looking at the result, noting that the result
directly contradicted the logic of the Bowers v. Hardwick,
[FN69]
the U.S. Supreme Court decision that Lawrence effectively overruled.
The Court used foreign law not as a source, but as persuasive evidence
of the correct interpretation of U.S. law.
[FN70] Any court can do this, even with limited language abilities or a lack of foreign
legal experience.
The
argument should not be that courts should not do in-depth analysis of
the decisions of foreign courts. Courts should be willing to do so,
indeed must be able to do so, to perform their function properly in a
world that is so small. But if a court wishes to do an in-depth
analysis, it must be cautious and do so properly.
C. A Capital Case: Roper v. Simmons
The
Court also looked to foreign law in other controversial cases. A
murderer was to be executed for the crime that he committed when he was
seventeen. The Supreme Court ruled that such a punishment would be a
violation of the Eighth Amendment's prohibition of cruel and unusual
punishment.
[FN71] Part of
its reasoning was due to the overwhelming evidence that all other
civilized nations reject application of the sentence of death to those
*111 who were children at the time of their crime.
[FN72] Though such authority is not at all binding, it can be persuasive and confirm other arguments.
[FN73]
The Court also recently rejected the application of death sentences to offenders who were mentally retarded.
[FN74]
Again, part of the Court's reasoning was the fact that the overwhelming
majority of other states in the world also reject sentencing of
mentally retarded persons to death.
[FN75]
It is worth pointing out that the European Union has filed briefs as amicus curiae before U.S. Courts
[FN76] and that the opinion of European Courts is persuasive evidence in U.S. Courts.
[FN77] Like it or not, foreign law is and will increasingly be a part of the U.S. legal landscape.
III. Conclusions
This brief survey of European law in U.S. courts shows that:
1) in controversial cases U.S. Courts are willing to look at European law to help determine its interpretation of U.S. laws;
2) U.S. courts do not always have the means to properly evaluate foreign law sources and foreign legal systems; and
3)
when U.S. courts focus not on intricacies of foreign pleading and
practice (form) instead of the substantive results, they obviate the
problem of inexpertise.
This
leads to the conclusion that U.S. courts can, and indeed should,
consider foreign law in determining hard cases. It also leads to the
conclusion that if a court does look at foreign law, it should do so
either in the greatest depth possible or should only consider the
substantive results. Since U.S. courts likely lack time and money to
obtain the needed expert opinion, they will likely continue to limit
their inquiry into foreign law to the superficial
*112 level of substantive outcomes. However, a greater depth of inquiry is
possible, but requires time, patience, curiousity, and an open mind.
[FN1]. E. Airlines v. Floyd, 499 U.S. 530 (1991).
[FN2]. Lawrence v. Texas, 539 U.S. 558 (2003).
[FN3]. Roper v. Simmons, 543 U.S. 551 (2005).
[FN4]. See, e.g., id.
[FN5]. Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331, 334 (S.D.N.Y. 2005).
The European Court of Justice ("ECJ") is the court empowered to hear
disputes regarding the European Community Treaty (Treaty of Amsterdam).
Another example of comparative law interpretations influencing U.S.
judgements is Nippon Emo-Trans Co., v. Emo-Trans, Inc., 744 F. Supp. 1215, 1223 (E.D.N.Y. 1990) which also cites the decisions of the ECJ approvingly.
[FN6]. Lawrence, 539 U.S. at 573 (citing Dudgeon v. U.K., 45 Eur. Ct. H.R. (1981)).
[FN7].
"It is proper that we acknowledge the overwhelming weight of
international opinion against the juvenile death penalty, resting in
large part on the understanding that the instability and emotional
imbalance of young people may often be a factor in the crime." Roper, 543 U.S. at 578
(citing Brief for Human Rights Committee of the Bar of England and
Wales et al. as Amici Curiae 10-11). "The opinion of the world
community, while not controlling our outcome, does provide respected
and significant confirmation for our own conclusions." Id.
[FN8]. "There is not one law
in Athens and another in Rome, not one law today and another tomorrow,
but only one law everywhere. Good men will follow it; bad men will
not." Cicero, Commonwealth, De republica, III.
[FN9]. Danilo Zolo argues that
Kelsen, in postulating a radical monism, created a theoretical
environment which would be more favorable to prescribing rights and
duties to individuals under international law. Danilo Zolo, Hans
Kelsen: International Peace through International Law, 9 EJIL 306,
available at http://www.ejil.org/journal/Vol9/No2/art5.html.
[FN10]. Hans-J rgen Schlochauer, ed.,W rterbuch des V lkerrechts, Berlin, 278 (1962).
[FN11]. "[D]ualists view
international law as a discrete legal system [which] . . . operates
wholly on an inter-nation plane." Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 864 (1987).
[FN12]. The Court in Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 937 (D.C. Cir. 1988)
correctly describes the U.S. as a "partly 'dualist"' system.
Specifically, the U.S. is monist as to the effect of custom, which is
directly enforcable, but dualist as to treaties which are presumed to
be non-self-executing in U.S. law.
[FN13]. See, e.g., Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1564 n.34 (1984) (noting that in a number of European countries, treaties prevail over all inconsistent statutes).
[FN14]. Danilo Zolo, Hans
Kelsen: International Peace through International Law, 9 EJIL 306,
available at http:// www.ejil.org/journal/Vol9/No2/art5.html. Zolo is
not alone in this position. See also R. George Wright, What's Gone Wrong With Legal Theory?: The Three Faces of our Split Personality, 33 Wake Forest L. Rev. 371 (1998).
[FN15]. Roper, 543 U.S. at 551.
[FN16]. Id. at 624-26 (Scalia, J., dissenting).
[FN17]. See, e.g., United States v. Rodrigues, 68 F. Supp. 2d 178, 187 (E.D.N.Y. 1999)
("While most, if not all, democratic countries [now] have an equivalent
of our Fifth Amendment privilege against self-incrimination, none of
them-including Great Britain, the country from whom we derive the
privilege-has interpreted it in as broad a manner as we have.").
[FN18]. The best proof is
the dissent of Justices Thomas and Scalia in Roper. While I think they
overstate their case and undermine their position, there are plausible
arguments which contextualize consideration of foreign law when
interpreting U.S. law. See Roper, 543 U.S. at 607-30 (Scalia, J., dissenting).
[FN19]. 6 ICCPR; Prosecutor v. Blaskic, Appeals Judgment, No. IT-95-14-A, ¶¶ 143, 147-49, 152, 156-59 (July 29, 2004).
[FN20]. Rudetsky v. O'Dowd, 660 F. Supp. 341, 348 (E.D.N.Y. 1987)
(finding the absence of language barrier factor in favor of determining and applying British law in U.S. Court); Stanley v. Bertram-Trojan, Inc., 1991 WL 221116, at *3 (S.D.N.Y. 1991) (finding a similar absence of language barrier a factor in favor of determining and applying Bahama's law in U.S. Court).
[FN21]. Holden v. Joy, 84 U.S. 211, 244 (1872); S.C. v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986).
[FN22]. "The common law of this country remains the same as it was before the revolution." Murray v. Schooner Charming Betsy, 6 U.S. 64 n.5 (1804).
[FN23]. Roper, 543 U.S. at 577.
The
United Kingdom's experience bears particular relevance here in light of
the historic ties between our countries and in light of the Eighth
Amendment's own origins. The Amendment was modeled on a parallel
provision in the English Declaration of Rights of 1689, which provided:
"[E]xcessive Bail ought not to be required nor excessive Fines imposed;
nor cruel and unusuall [sic] Punishments inflicted."
Id. (quoting 1 W. & M., ch. 2, § 10, in 3 Eng. Stat. at Large 441 (1770)).
[FN24]. Roper, 543 U.S. at 626-27 (Scalia, J., dissenting).
It
is beyond comprehension why we should look, for that purpose, to a
country that has developed, in the centuries since the Revolutionary
War-and with increasing speed since the United Kingdom's recent
submission to the jurisprudence of European Courts dominated by
continental jurists-a legal, political, and social culture quite
different from our own.
Id. (Scalia, J., dissenting). Again the dissent rashly overstates
the argument. Clearly it is not incomprehensible to consider British
case law, even contemporary case law, in interpreting U.S. laws.
Further, continental social culture is not so very different from that
of the U.S. This sort of particularism, the idea of America as
exceptional, is dangerous as it needlessly isolates the U.S. from its
friends. Exceptionalism, in concert with the idea of universalism, that
the U.S. has some global mission to impose on the rest of the world, is
even more dangerous and leads to needless wars such as in Iraq.
[FN25]. Roper, 543 U.S. at 604 (O'Connor, J., dissenting).
While
acknowledging that the actions and views of other countries do not
dictate the outcome of our Eighth Amendment inquiry, the Court asserts
that "the overwhelming weight of international opinion against the
juvenile death penalty . . . does provide respected and significant
confirmation for [its] own
conclusions." . . . I can assign no such confirmatory role to the international consensus described by the Court.
[FN26]. Alexander Pope, An Essay on Criticism (1709).
[FN27]. Solem v. Helm, 463 U.S. 277, 289 (1983); but see Harmelin v. Michigan, 501 U.S. 957 (1991).
The Supreme Court's confused proportionality case law resolves itself
when one understands that the principle of proportionality appears in
international and foreign law as well.
[FN28]. "[E]qual protection does not mean that all persons must be treated
alike. Rather, its general principle is that persons similarly situated should be treated similarly." Trimble v. Gordon, 430 U.S. 762, 780 (1977).
[FN29]. "Second is the
general principle that 'liberty may not be interfered with, under the
guise of protecting the public interest, by legislative action which is
arbitrary or without reasonable relation to some purpose within the
competency of the State to effect."' Moore v. E. Cleveland, 431 U.S. 494, 547 (1977) (quoting Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923), overruled by Abbott v. Bragdon, 912 F. Supp. 580 (D. Me. 1995)).
[FN30]. R.R. Co. v. Husen, 95 U.S. 465, 471 (1878).
[FN31]. E. Airlines, 499 U.S. at 533.
[FN32]. Id.
[FN33]. Convention for the
Unification of Certain Rules Relating to International Transportation
by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), note
following 49 U.S.C.App. § 1502 (hereinafter "Warsaw Convention" or "Convention"). Id. at 533 n.1.
[FN34]. Id. at 535.
[FN35]. Id. at 536.
[FN36]. "When interpreting a treaty, we 'begin with the text of the treaty and the context in which the written words are used." E. Airlines, 499 U.S. at 535 (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988)).
[FN37]. Id. at 535-36.
[FN38]. Friedrich Carl von
Savigny: System des heutigen r mischen Rechts, p. 206, § 32 et seq.
vol. 1, 1840, available at
http://dlib-pr.mpier.mpg.de/m/kleioc/0010/exec/bigpage/%22199236_00000256%22.
[FN39]. See, e.g., BVerfG 2
BvR 716/01 - Urteil vom 16. Januar 2003 (2. Senat des
Bundesverfassungsgerichts) available at
http://www.hrr-strafrecht.de/hrr/bverfg/01/2bvr-716-01.php3.
[FN40]. C-439/01, Libor
Cipra, Vlastimil Kvasnicka v. Bezirkshauptmannschaft Mistelbach,
European Court of Justice, ¶ 41 (Jan. 16, 2003).
[FN41]. "The prohibition
against 'cruel and unusual punishments,' like other expansive language
in the Constitution, must be interpreted according to its text, by
considering history, tradition, and precedent, and with due regard for
its purpose and function in the constitutional design." Roper, 543 U.S. at 560.
[FN42]. E. Airlines, 499 U.S. at 537-38.
[FN43]. Id. at 537-39.
[FN44]. Id. at 538.
[FN45]. Id. at 538. See, e.g., Conseil d'Etat, Decision n 2000-439 DC (16 Jan 2001). (cited in E. Airlines).
[FN46]. 1795 Const. 89.
[FN47]. 1795 Const. 56-63.
[FN48]. 1795 Const. 55.
[FN49]. 1795 Const. 55 "Les
traites ou accords regulierement ratifies ou approuves ont, des leur
publication, une autorite superieure a celle des lois, sous reserve,
pour chaque accord ou traite, de son application par l'autre partie."
(Treaties or accords regularly ratified or approved have, from the time
of their publication, a superior authority to that of the laws with the
reservation that for each accord or treaty be applied by the other
party [thereto]) (author's translation).
[FN50]. Unsurprisingly, the
case law of the conseil d'etat and conseil constitutionnel confirms the
constitutional hierarchization of treaties as superior to laws. CE 1952
Dame Kirkwood; CC 1975 IVG; CCass 1975 Jacques Vabres; CE 1989 Nicolo.
[FN51]. For a discussion of
the place of general principles of law in the French constitutional
order see CC Decision 69-55 of June 26, 1969, GD 228.
[FN52]. See, e.g., Cons. const., 16 Juillet 1971.
[FN53]. The general
principles include the principal of freedom, or principe de liberte,
(see, e.g., CE, Ass., 22 juin 1951, Daudignac ; CE Sect., 13 mai 1994, President de l'Assemblee) the general
principle of equality (see, e.g., CE, Sect, 9 mars 1951, Societe des
concerts du concervatoire, Leb. p. 151, GAJA n 70; CE, Ass., 25 juin
1948, Societe du Journal l'Aurore, Leb. p. 289, GAJA n 64; CE, 1974,
Denoyez et Chorques; CE, Ass, 28 mai 1954, Barrel et autres, Rec. p.
308 concl. Letourneur, GAJA n 77 ; CE, 9 novembre 1966, Commune de
Clohars-Carno t) the principle of non retroactivity of laws (C.E., Ass,
25 juin 1948, Societe du Journal l'Aurore, Leb. p. 289, GAJA n 64)
(i.e. no ex post facto laws) the right of self defense) (CE, Sect., 5
mai 1944, Dame Veuve Trompier Gravier, Leb. p. 133, GAJA n 58 ; Ass.,
26 octobre 1945, Aramu, Leb. p. 213 ; en mati re penale : CE, Ass., 19
octobre 1962, Canal, Robin et Godot, Leb. p. 552, GAJA n 88. CC, dec. n
76-70 DC du 2 decembre 1976, Rec. p. 39 ; CC, dec. n 77-83 DC du 20
juillet 1977, Rec. p. 39). These principles and the decisions in cases
derived from them are by no means exhaustive.
[FN54]. But where the exact
same parties litigate the exact same issue, remand is appropriate. Cour
de Cassation Chambre commerciale, (16 fevrier 1966).
[FN55]. Cour de Cassation,
Chambre criminelle (2 octobre 2002) (Usages can be a source of law in
commercial law, unlike penal law). This accords with lex mercatoria in
international law.
[FN56]. The Court says,
"[i]n 1929, as in the present day, lawyers trained in French civil law
would rely on the following principal sources of French law: (1)
legislation, (2) judicial decisions, and (3) scholarly writing." E. Airlines 499 U.S. at 537 (citations omitted).
[FN57]. For a discussion of the general principles of French law, see CE Lujambio Galdeano, September 25, 1984.
[FN58]. Jurisprudence in French means case law, not legal philosophy. Doctrine in French means the works of legal scholars.
[FN59]. "In 1929, as in the
present day, lawyers trained in French civil law would rely on the
following principal sources of French law: (1) legislation, (2)
judicial decisions, and (3) scholarly writing." E. Airlines, 499 U.S. at 537-38
(citing 1 Plainol & Ripert, Traite elementaire de droit civil, pt.
1, Nos. 10, 122, 127 (12th ed. 1939) (Louisiana State Law Inst. Trans.
1959). Even if this were the case the Court does not appreciate the
fact that legislation is a direct source of law (i.e., written law),
and binding, whereas judicial decisions and scholarly writing are
unwritten law, non-binding, and interpretive sources of law.
[FN60]. E. Airlines, 499 U.S. at 539.
We
find it noteworthy, moreover, that scholars who read 'lesion
corporelle' as encompassing psychic injury do not base their argument
on explanations of this term in French cases or French treatises or
even in the French Civil Code; rather, they chiefly rely on the
principle of French tort law that any damage can 'give rise to
reparation when it is real and has been verified.' We do not dispute
this principle of French law. However, we have been directed to no
French case. . . .
Id. (emphasis added) (quoting 2 Plainol & Ripert, Traite
elementaire de droit civil, pt. 1, No. 868 (12th ed. 1939) (Louisiana
State Law Inst. Trans. 1963)).
[FN61]. E. Airlines, 499 U.S. at 539.
[FN62]. A slight
acquaintance with the literature, law, philosophy, and history of
France will convince any one that the tendency of the French intellect
is to deductive instead of inductive reasoning, from general principles
to particular results, rather than from known facts to principles. The
same distinction is observable in the French law. There are but few
statutes and published decisions. The authorities most relied on are commentators, who, in a great measure, start
with an aphorism or an axiom, and reach a certain concrete result from
the abstract idea. De Rothschild v. U.S., 6 Ct. Cl. 204, 1870 U.S. Ct. Cl. LEXIS 29, **14 (Dec. 1870)
(litigant's arguments). The Supreme Court could not blame its error on
a lack of English language material or analysis. The fact that French
case law is deduced from French legislation and that the method of
inferencing in French law is generally deductive is well reported in
U.S. law reviews. See, e.g., Michael Wells, French and American
Judicial Opinions, 19 Yale J. Int'l L. 81, 93-99 (1994); Arthur Taylor
von Mehren & James Russell Gordley, The Civil Law System, An
Introduction to the Comparative Study of Law, 1140 (2d ed. 1977).
[FN63]. E. Airlines, 499 U.S. at 539 (quoting Plainol & Ripert, supra note 60, at pt. 1, No. 868).
[FN64]. "Liberty protects
the person from unwarranted government intrusions into a dwelling or
other private places. In our tradition the State is not omnipresent in
the home." Lawrence, 539 U.S. at 562.
Though Justice Kennedy may not know it, he is deducing a specific
instance to a case from a general principle, the principle of freedom.
That is the analysis a French Court would perform.
[FN65]. Lawrence, 539 U.S. at 563.
[FN66]. Tex. Penal Code Ann. § 21.06(a) (Vernon 2003).
[FN67]. Lawrence, 539 U.S. at 564.
[FN68]. 45 Eur. Ct. H.R. (1981).
[FN69]. 478 U.S. 186 (1986).
[FN70]. "In these cases, the
foreign courts I have mentioned have considered roughly comparable
questions under roughly comparable legal standards. Each court has held
or assumed that those standards permit application of the death penalty
itself. Consequently, I believe their views are useful even though not
binding." Knight v. Fla., 528 U.S. 990, 997-98 (1999) (cert. denied) (Breyer, J. dissenting).
[FN71]. Roper v. Simmons, 543 U.S. 551 (2005).
[FN72]. "The overwhelming weight of international opinion against the
juvenile death penalty is not controlling here,
but provides respected and significant confirmation for the Court's
determination that the penalty is disproportionate punishment for
offenders under 18." Roper, 543 U.S. at 554 (syllabus).
[FN73]. "The opinion of the
world community, while not controlling our outcome, does provide
respected and significant confirmation for our own conclusions." Id. at 578.
[FN74]. Atkins v. Virginia, 536 U.S. 304, 306 (2002).
[FN75]. '"[W]ithin the world
community, the imposition of the death penalty for crimes committed by
mentally retarded offenders is overwhelmingly disapproved."' Roper, 543 U.S. at 575 (quoting Atkins v. Virginia, 536 U.S. 304, 317 n.21 (2002)).
[FN76]. Brief for The European Union as Amicus Curiae Supporting Petitioner, McCarver v. North Carolina, 533 U.S. 977 (2001) (No.008727), 2001 WL 648609.
[FN77]. See Thompson v. Oklahoma, 487 U.S. 815, 830-31
(1988)
(considering the views of "respected professional organizations, by
other nations that share our Anglo-American heritage, and by the
leading members of the Western European community").
END OF DOCUMENT
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