In Roper v. Simmons, the Supreme Court of the United States faced the question of whether the application of the death penalty to a juvenile constituted “cruel and unusual punishment” within the meaning of the Eighth Amendment of the US Constitution. In 2005 – the year in which the Supreme Court decided the case – the US was alone in the world in sentencing minors to death – a fact that evidently influenced the reasoning of the majority. The Supreme Court, by a five to four majority, determined the Missouri death penalty to be illegal, finding confirmation for this “in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty”. Whilst it might be politically significant that world opinion condemns the practice, how can one make sense of the Supreme Court's recourse to foreign law in rendering judgment?
Building on a 2005 article in the Harvard Law Review and the 2007 Storrs Lectures at Yale Law School, Jeremy Waldron's 2012 monograph tackles this contentious subject. The issue has been one of the hot topics in US law – especially constitutional law – over the past decade, and Waldron's contribution breathes new life into a somewhat stale debate that normally revolves around antiquated conceptions of sovereignty and unarticulated jurisprudential suppositions. Waldron's main thesis is that, by adducing foreign sources, courts are in fact drawing upon a body of extant transnational legal principles, ius gentium. These principles are identifiable by a process of induction from the domestic laws of states around the world, and are understood to be a “set of principles whose authority stemmed from the fact that they had established themselves as a normative consensus on the topics that they addressed among lawmakers, judges and jurists around the world” (p. 47). These principles, Waldron argues, form a non-binding source of law capable of being drawn upon by domestic courts.
In contrast to several comparative and constitutional lawyers that have examined the citation of foreign sources, Waldron contends that the normative authority of ius gentium cannot solely be explained by the strength of the reasoning that a foreign law or judgment embodies. Lawyers, he argues, have a certain method of unpacking a problem, identifying the issues involved, and resolving opposed considerations with the goal of a just outcome. The invocation of ius gentium is not just the piecemeal exploration of prospective legal solutions, but rather the embodiment of the world's experience “with the legal analysis of the problem – looking for forms of analysis that others have pioneered that open the prospect of our being able to identify and attend methodologically to the issues and values that matter in this issue” (p. 102). In Waldron's view, this accumulated experience, coupled with transnational commitments to justice and coincidence of legal method, explains the normativity of ius gentium.
Waldron also addresses the practical and principled arguments for the transnational harmonisation of laws that ius gentium permits. The former are reasonably uncontentious: laws should be harmonised for reasons of predictability, stability, and comity between countries. The argument from principle, on the other hand, is more complex. Although a domestic judiciary could be accused of injustice for treating identical cases in different ways, which body could we accuse of injustice if identical cases are decided differently in State A and State B? This, according to Waldron, is the wrong question to ask. Instead, we should focus on the basis of the individual's claim to equality of treatment on a transnational level. He argues that we have a shared sense of human rights that constitutes a single community, and we are cognisant of these shared rights. As a result, we have “legitimate concern for harmonization – so that we will all be treated by the same standards” (p. 134). This “principled association” creates both the community and the demand for equality on the transnational level. In the end, the practical and principled arguments for the use of foreign law are not dispositive of whether recourse should be had to foreign law. Rather they are arguments adduced by Waldron to try to explain why “foreign law might have some weight with us, even over and above its immediate persuasiveness” (p. 141).
Waldron's book is a well-written, engaging, and thought-provoking work, casting new light on a technique of legal reasoning that has attracted much attention of late. There are, however, various points at which Waldron's line of argument raises questions. First, although it is consistently asserted that recourse to foreign law is best characterised as recourse to principles of ius gentium, it is not clear why this is the case. Waldron seems to consider that solely considering the normative arguments for recourse to foreign law invites courts to take a piecemeal approach to their application, and that his theory of ius gentium circumvents such an approach. It is, however, not readily apparent why this might be. Could courts not just as easily selectively apply principles of ius gentium? Absent any obligation to apply such norms, the benefits of invoking a theory of ius gentium seem to be mere conjecture.
Further, principles of ius gentium do give the normative arguments something upon which to attach (p. 9), but that does not seem to be necessary in order to deploy such arguments. The normative arguments that Waldron describes are in themselves able to account for the elements of practice that I believe he constructs the ius gentium theory to explain. Admittedly, the principled argument for harmonisation requires the recognition of transnationally held values that found the basis of a community, but casting these values as an autonomous body of principles does not seem to be a necessary corollary.
Second, Waldron's focus is on the use of foreign authorities in US constitutional adjudication. The potential applicability of his theory outside of this realm begs several questions. The principled argument for harmonisation, for example, is premised on the basis that a community exists by virtue of identical (or very similar) conceptions of human rights. In other fields of law, what forms the basis of a similar community? Does this mean that a principled argument for harmonisation is limited to a small number of universally held human rights? Or does Waldron's conception of a principled community allow for flexibility to extend the argument to, for example, areas of commercial law which seem ripe for the invocation of foreign law in legal reasoning? (Indeed, Waldron notes the similarity between lex mercatoria and ius gentium but does not go on to apply his arguments to the former concept (pp. 45–46).) Examining the applicability of foreign law to adjudication within other areas of law would be an interesting extension of Waldron's theory.
Finally, Waldron's argument is infused with Dworkinian jurisprudence, laying open Waldron's argument to those critiques that may be levelled at certain elements of Dworkin's theory. For example, the argument that Waldron deploys to explain the normative authority of ius gentium principles, noted above, is based on the premise that all law works towards the same goal: a just solution. Waldron admits that this is not always the case, but – if this were so – why would consensus have authority over and above the persuasiveness of legal reasoning it embodies? Is this normativity not contingent on the pursuit of a common goal via common methods? Once the unity of aim has disappeared, it is difficult to maintain that consensus has some kind of special normativity: the reasoning of a judiciary that aims at a just solution to a problem may differ to that of another which pursues “a workable solution, or an efficient one” (p. 106). Absent commonality of goal, this argument seems to fall away.
Waldron's book has no definitive conclusion, instead reminding the reader of the aims of the book – to promote measured reflection on the invocation of foreign law, and the benefits and compromises that it entails. In a thoughtful, elegant, and commendably concise way, he achieves these goals.
