I. INTRODUCTION
The attitudes of senior judges have long been a focus of empirical study in the United States. Elsewhere in the common law world, attention has been more sporadic—due in part to a lack of interest among political scientists and to the concentration of the socio-legal movement on frontline actors, rather than those at appellate level. Nevertheless, decision-making in apex common law courts on matters of constitutional rights is increasingly the object of general hypothesis. The surge in interest is largely the product of the growth in prominence of transnational comparison as a mode of argument in such cases. Seeking to explain this discursive phenomenon, some legal thinkers and political scientists have characterized it as a global project or jurisprudence. Several broadly comparable theories have been proposed, which we shall label the ‘globalist’ school.Footnote 1 These theories characterize the phenomenon as both a cause and reflection of increased peer consciousness amongst apex judges, a common judicial mission of individual/minority protection, and an enhanced sensitivity toward the possibilities of ‘persuasive authority’.Footnote 2 Some judges have publicly commented on the use of comparison in constitutional rights cases, thereby providing a range of primary material on what is exactly taking place. Yet while such remarks and reported conversations are helpful in formulating hypotheses about the phenomenon, they are of relatively limited value in testing them.
The transnationalization of constitutional argument raises a number of questions. Normatively, there is the issue of the legitimacy of the use of foreign law in the resolution of disputes about individuals' constitutional rights. Following the recent citation of foreign law by the US Supreme Court in two major rights decisions,Footnote 3 a controversy over the practice re-ignited—one steeped in the terminology and claims of globalist theory. A storm of debate within American academia on the merits and practice of judicial comparisonFootnote 4 was joined by a political debate in which leading politicians railed against the Court's apparent reliance on foreign law.Footnote 5 Outside the US, the gauntlet was taken up by judges and theorists sympathetic to comparative legal argument.Footnote 6 For now it seems the storm has passed, leaving behind a wealth of material on the propriety of resorting to foreign law in domestic adjudication.
Answering the question of legitimacy requires more than providing a good justification in principle. It all depends on the status attributed to foreign law by comparing judges—even the most sophisticated defence of judicial comparison will fail if judges compare for unrelated ends. Consider globalism's ‘dialogical’ narrative of apex judging:
[C]onstitutional law can be understood as a site of engagement between domestic law and international or foreign legal sources and practices… Transnational sources are seen as interlocutors, offering a way of testing understanding of one's own traditions and possibilities by examining them in the reflection of others.Footnote 7
As the focus of attempts to both explain and justify the use of foreign law in constitutional discourse, the attitudes of apex judges are clearly at issue. This study aims to shed light on how common law judges view foreign law as a source of argument in constitutional rights matters, how they ‘see’ transnational sources.Footnote 8 Its data provide the basis for preliminary testing of globalist theory. More generally, they bring a practical insight to bear on jurisprudential debates invoking the nature of judicial reasoning in appellate courts.
To investigate the character of transnational comparison as a mode of legal argument, we must identify the materials it purports to invoke. Debates about the legitimacy of judicial comparison are most concerned with the use of certain kinds of transnational materials. Comparison to such materials would accordingly seem to constitute a more or less distinct form of legal argument. Thus, from the domestic perspective, transnational legal material concerning individual rights appears to take two forms, the norms of binding public international law, and legal norms of other countries and other groups of countries. The domestic status of these materials appears to be subtlety different; a judge's use of the former in determining an individual's rights can seem more transparently appropriate (or less transparently inappropriate) than their use of the latter. Chris McCrudden has sought to capture the apparent contrast by way of a formal distinction between binding and non-binding transnational norms.Footnote 9 On this account, the use of transnational material to establish what law is binding on the domestic jurisdiction is different (and less potentially problematic) to using such material absent binding international legal commitments.
McCrudden's distinction is inadequate for our purposes however. First, it is unclear whether it can explain the apparent contrast in the materials' legal status. Presumably, if the consensus of some set of countries is evidence of the soundness of a favoured legal conclusion, it will equally be evidence of the unsoundness of a favoured conclusion. If so, attention to the views of those countries when adopting legal conclusions is not straightforwardly ‘optional’. Indeed, what exactly it is to be binding is a large part of the debate on the appropriateness of judicial comparison.Footnote 10 Second, in the context of the ongoing debate about the status actually attributed to transnational legal materials by domestic judges, differentiating that material in terms of what is binding risks begging the question of judicial perception.Footnote 11 Conversely, ignoring the apparent contrast in status is liable to conflate argumentatively distinct practices of legal comparison.Footnote 12 What would help is a property considered characteristic of the form of comparative argument central to current debates about transnationalized constitutional discourse.
Our focus is on the use of transnational material where the home State's actions convey no intention that the legal question be answered with reference to such material.Footnote 13 Thus, in determining the domestic position on excessive punishment, an Irish court's reliance on either American Eighth Amendment norms or on customary international law seems to lack any claim to be an implementation of the State's manifest intentions. Given the absence of official Irish action indicating an interest in determining Irish punishment norms by reference to either the Eighth Amendment or customary international law, the Irish judge is not simply acting according to the apparent intentions of other branches of government when invoking such material. On the other hand, Ireland's ratification of a treaty concerning punishment which nominates the European Court of Human Rights as the authoritative interpreter thereof suggests an intention that the country's punishment norms be exposed to the jurisprudence of that court. An Irish court's reliance on ECHR jurisprudence would thus have some claim to be in keeping with the actions of the Irish State.Footnote 14
We can also apply this distinction to the use of the laws of other nations for the purpose of determining the meaning of a treaty agreed between those nations. For instance, where a State enters into a treaty with respect to the regulation of air traffic, we may assume that an important part of its reasons for doing so is the belief that there is an advantage in regulating air traffic in the same manner as other nations, even where that manner is not intrinsically better than all others. Thus, a court's citation of the interpretation given to the treaty by another contracting party will accord with the apparent intentions of the (home) State. Generalizing, we can say that where joining a treaty holds economy of scale or coordination incentives, moves tending to bring the State's domestic law into line with that of other parties follow from the State's ostensible intentions in joining the treaty.Footnote 15 Conversely, where a treaty holds no evident economy of scale or coordination incentive, judicial reliance on the interpretations given to it by other parties would not so follow.Footnote 16 Treaties concerning individual rights appear to fall predominantly into this category. Footnote 17 Accordingly, a State's joining of rights instruments such as the ECHR or the American Convention on Human Rights does not itself appear to manifest an interest in tracking the instrument's treatment within other contracting parties.Footnote 18
In a home State's failure to manifest an intention that the legal question be resolved by reference to a given transnational legal material, we appear to have a property characteristic of the form of comparative legal argument central to current debates about transnationalized constitutional discourse. For our purposes then, a judge uses ‘foreign law’ when his State's actions fail to convey the intention that the legal question be answered with reference to the transnational material employed. Thus, our focus is on judicial regard to the (domestic and international) laws of other nations when settling domestic rights issues. Such regard may occur in the process of determining the application of a domestic norm, or in determining the impact of a ratified treaty norm on domestic rights, eg, in interpreting one's ECHR commitments by reference to Canadian Court's Charter of Fundamental Rights jurisprudence.
II. METHOD
As the title of the article suggests, we conducted a survey of common law judges working at the apex of their domestic hierarchy on their attitude towards the use of foreign law.Footnote 19 The validity of reliance on judicial self-reporting has been questioned:
[A]sking someone to identify his or her motive is one of the worst methods of measuring motive. People often do not know, or cannot articulate, why they act as they do. In other situations, they refuse to tell, and in still others, they are strategic both in acting and in answering the scholar's question. This is obvious from the example of asking justices about how they reach decisions…Footnote 20
Epstein and King have two problems in mind here. The second is straightforward; deliberate deception. We think this problem is satisfactorily addressed by a convincing guarantee of confidentiality that extends as far as the subject's institutional affiliation. Combined with the jurisdictional non-specificity of any criticisms or recommendations with which the study might possibly conclude,Footnote 21 the guarantee seems to remove much of the incentive for deliberate deception.
The first problem—that judges have no reliable means of telling how they reach decisions—is more insidious. But there is a distinction in the kinds of questions that may be asked about judicial decision-making. Epstein and King note studies suggesting that we cannot report our cognitive processes on the basis of true introspection;Footnote 22 that is, that we cannot give non-incidentally accurate accounts of why we reached particular decisions. This concern is certainly relevant to surveying a judge on his motivation for reaching a particular judgment. But studies of that sort seem otherwise unappealing, prohibitively so. In jurisdictions where judges publish judicial opinions, asking them why they reached a particular decision appears pointless. Either a judge has already revealed how they reached it, is unable to, or has something to hide, in which case they will hardly reveal it to someone who wants to publish why, in fact, they voted the way they did.
On the other hand, asking a judge what he thinks is important, how he feels toward X, or what would justify something, is not asking him about his cognitive processes. Yet the answers to such questions advance efforts to explain judicial behaviour merely if judges are more likely to think in accordance with their views and dispositions than not. This is prima facie plausible. Of our 25 questions, just three—3A, 5A and 19—ask judges questions of a causal nature: to identify why they feel or do something. It may be that these questions are likely only to reveal a respondent's pre-existing causal theories about what would plausibly produce the feeling or act in questionFootnote 23 or those reasons that sound most rational and systematic.Footnote 24 But, as with the survey's non-causal questions, knowledge that a judge has a particular theory of what causes X seems at least a prima facie basis for taking them to reason accordingly.
Nonetheless, a moderate version of the introspection problem does affect the study: asked which characterization of X is appropriate, a judge may feel compelled to characterize X in a particular way simply because that characterization would seem most acceptable to most people. By its nature, however, the potential for this kind of bias tends to be conspicuous, with the result that attentive interpretation can aim to account for it. If a presented characterization seems culturally more acceptable than the others, or vice versa, we may explicitly factor the likely distortive effect into our interpretation of the data. In this way, it is possible to control for obvious introspection bias.
Notwithstanding its stated limitations, we believe that, as a method of investigating judicial decision-making, asking those with actual experience thereof offers unique advantages. Indeed, we would respectfully suggest that the fundamentals of contemporary ‘law and courts’ scholarship are more likely to be advanced by judicial survey than by constructing more sophisticated proxies for non-legal reasoning and measuring their correspondence with judges' votes. Until we settle on what law is, we cannot control for whether a judge's legal philosophy is systematically linked to a purported proxy,Footnote 25 whereas the nature of law is notoriously controversial. By contrast, answering a question as to the role of some source in one's reasoning on legal questions permits a judge's legal philosophy to have full expression.
We turn now to the particulars of the survey. Work on design of the questionnaire began in October 2005. The decision to proceed with a questionnaire involving structured and unstructured elements was taken with a view to maximizing the depth and comparability of the elicited data. Providing the opportunity for judges to express their views on the nature of the questions posed also promised a greater response rate. Work on drafting the questionnaire proceeded through winter and included exploratory meetings with two British Law Lords. Including ‘follow-ons’, the final survey contained a total of 25 questions. They appeared in a combination of multi-check, exclusive check, open-ended and simple ranking formats. In the first week of December 2005, letters were sent to the then membership of the British Law Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States requesting their participation in a survey on the role of foreign law in domestic rights adjudication. Accompanying each was a personalized cover letter from the chairman of the Oxford Faculty of Law, urging participation in the survey and endorsing our guarantee of confidentiality as regards the identity of participants and their courts.
Given the international dispersion of our intended subjects, interviews were not a feasible option. A system of electronic submission was chosen as the primary data collection method, with the possibility of returning printed out hard copies of the questionnaire as an alternative. Oxford's Balliol College agreed to host the survey on its website. The initial letter provided each judge with a unique URL which displayed their personal online copy of the questionnaire. Participating judges saved their inputted responses onto the Balliol server. The responses were then harvested from the server into a personal database. Of 43 survey completions, most were made electronically, with the remainder via hard copy returns. The responses received from each hard copy return were entered manually into its online counterpart. Thirty-one survey completions were filed in response to the first mail-shot—from early December to late January 2006. A first reminder mail-shot was then conducted, netting six further completions. A second reminder (enclosing a survey hardcopy) was sent in mid-March with the final six responses filed in late March/April 2006.
The response rates for the jurisdictions varied considerably; they were as follows: 11 per cent USA, 17 per cent Israel, 18 per cent India, 20 per cent South Africa, 43 per cent Australia, 60 per cent Ireland, 64 per cent UK, 71 per cent Caribbean, 78 per cent Canada, 100 per cent New Zealand. The surveyed British judges comprised the then Lords of Appeal in Ordinary (the 12 full-time members of the Judicial Committees of the House of Lords and Privy Council) with the exception of Lord Saville of Newdigate.Footnote 26 An initial source of participant selection bias should be noted. In December 2005, the first named author contacted six acquaintances who, as former clerks, had direct access to judges within four of the surveyed jurisdictions, requesting them to bring the initial letter to the attention of their former employer. The response rate from such judges was 50 per cent. Four further acquaintances with indirect access (through current clerks) to judges from two of the former jurisdictions and two additional jurisdictions were requested to do likewise. As the identities of the latter judges were not known to us, we could not calculate their precise response rate. Judging from the number of responses we can account for, however, it seems that three of them responded (43 per cent), providing an overall rate of response from clerk-contacted judges of 46 per cent.
A critical issue is apparent; of whom can the study purport to be representative? The role of a member of the South African Constitutional Court appears to have much in common with that of his Irish and Australian counterparts. The coincidence of a culture of judicial independence, of conflicts with electorally legitimated actors, of a broadly common law tradition, and of the privilege of finality, seems to generate a distinctive professional role. So is there a genuine category of ‘independent apex judges of common law democracies’? One way of thinking about the question is to ask whether, as between the 10 jurisdictions, the professional commonalities amongst our subject judges are greater than the differences. Ultimately, readers must decide for themselves the ‘recognizability’ of the proposed professional role.
Albeit with a few clear exceptions,Footnote 27 the apex judges of all democratic jurisdictions operating within a broadly common law tradition under conditions of judicial independence were surveyed (103 judges in total). Accordingly, assuming the reality of the suggested professional role, our survey is a reasonable snapshot of the views of the total population who occupy it. Inferences about the attitudes of this population toward the use of foreign law test the hypotheses advanced by the globalist school and suggest new ones. We have deposited our database and questionnaire in the online archive of the Inter-university Consortium for Political and Social Research. Readers are encouraged to download and peruse the data.Footnote 28
The sample's overall response rate was 42 per cent. We speculate that the institutional imprimatur of the then Chair of the Oxford Law Faculty, Ewan McKendrick, contributed significantly to the readiness of judges to respond; this at least was our intention. It is more difficult to account for the wide variations in response frequency. But certain factors are likely to have contributed. First, the nationality of the first named author likely affected the response rate of the Irish Court, whereas Oxford's institutional ties with the senior British judiciary presumably played a role in the response of the House of Lords. Second, the low rate of response from the US Supreme Court may be due to a wariness borne of the Court's unusual prominence within that state's domestic political discourse. Third, we must consider the possible impact of the representations of the 10 former judicial clerks and associates. As it happens, there was no observable correlation between the number of contacts per court and the rate of response from each court.Footnote 29 Fourth, it is possible that differences in the average workload of the courts affected their respective response rates. We have not undertaken the work of confirming the presence of significant differences between judges in this regard. Beyond the possible effect of these four factors, we are unable to offer any further reasons for the variation in response frequency. Given the wide variation in court-by-court response rates it might be thought that significantly different attitudes towards comparative law among their memberships may bias the data. But the general point to be made at this juncture is that the effect of none of the cited factors—though potentially affecting sample yield—appears likely to produce non-random effects on responses to the questions posed.Footnote 30 Nevertheless, one might worry that there may be a self-selection bias at work due to a judge's personal attitudes toward comparison. In principle, such an effect might cancel itself out, with those anxious to present favourable and unfavourable points of view experiencing an equal marginal inclination to respond. As it was voiced to the authors, however, the concern is that the effect would predominately work to attract responses from those favourable to comparison. It is difficult to test for this given the paucity of judges who are on record as sceptics about the use of foreign law. But what little indication there is does not support the existence of such a self-selection effect. Thus, from one court containing a majority of judges previously on record as optimists about the use of foreign law, the only survey participant previously on record was a sceptic.
Although for a judicial survey our response rate is high, our sample size is small. This has two implications for drawing causal inferences from the data. First, there are likely to be important relationships between variables that do not show up as statistically significant. Second, those relationships which do register as statistically significant are likely to be important.Footnote 31 In reviewing the data, bear these points in mind.
Our analysis will proceed thematically; the first two sections set out findings relevant to hypotheses about the sociological impact of foreign judges and domestic audiences. The subsequent sections present findings relevant to a variety of claims about the basis on which judges use foreign law. In the final section we signal a difficulty raised by the data for Dworkinian claims about the nature of appellate judicial reasoning.
III. FINDINGS
At the head of the questionnaire ran the following notice:
Please read the word ‘rights’ to mean human and/or civil rights… Bear in mind that your participation in this study is entirely confidential—no references whatsoever will be made either to specific participants or their courts.
Of the total population of apex judges of common law, democratic jurisdictions, the membership of the 10 aforementioned courts—103 judges—were surveyed. In total, 43 judges responded, giving us a response rate of 41.7 per cent. This represents a margin of error of 11.4 per cent. A 95 per cent confidence interval was selected; any significant results found should be repeated on 95 per cent of occasions. As data were of a nominal nature, Pearson Chi squared analyses were employed in order to determine relationships between the variables.
A. Foreign Judges as Reference Group
Our survey establishes fairly clearly that at least some foreign judges form a professional reference group for nearly all judges.Footnote 32 We found that 93 per cent of judges felt ‘a sense of high professional esteem for Supreme Court judges from other jurisdictions’ (Question 3).Footnote 33 A follow up question asked: Is this sense of professional esteem greater than that which you feel towards subordinate judges in your own jurisdiction?Footnote 34 Fourteen respondents did not answer this question of relative esteem—many of whom rejected the possibility of generalization. Of those that answered, 16 perceived their sense of professional esteem for foreign judges and their subordinate domestic judges to be equal. Twelve indicated that they held a greater sense of professional esteem for their foreign counterparts than their domestic subordinates, with only one judge indicating the opposite. One of the former observed that ‘[h]aving served in lower and intermediate courts, and on a final court, one discovers a special empathy with judges who work at the end of the track.’
It is also fairly clear on the data that, for a considerable proportion of judges, at least some foreign judges form a reference group in relation to constitutional rights. The response to Question 1 supplies some context. It asked:
In those parts of your judgments which relate to rights, to what extent do you refer to the law in other national jurisdictions?
• Regularly
• Occasionally
• Rarely
• Never
All 43 judges responded to the question, with none answering ‘never’. Evidently, the frequencies people attribute to the terms ‘rarely’ and ‘occasionally’ are likely to have a substantial overlap. We suggest, however, that there is little overlap between the frequencies people are likely to attribute to the terms ‘occasionally’ and ‘regularly’. Accordingly, our analysis groups two of Question 1's answer options, ‘rarely’ and ‘occasionally’ together; leaving the remaining frequency option, ‘regularly’ to stand alone.Footnote 35 Of the 43 judges, 20 felt that they used foreign law occasionally or rarely while 23 felt they used it regularly. For ease of reference we will label the latter kind of judge a ‘frequent’ user, the former ‘infrequent’.
Our second frequency question was more precise. Question 6:
Do you use comparative material in justifying your legal conclusions on rights?
• Regularly
• Occasionally
• Rarely
• Never
All judges answered the question; we analysed their answers in the same manner as Question 1. Fifty-six per cent considered themselves infrequent users of comparative material when it came to justifying their legal conclusions on rights. Forty-two per cent considered themselves frequent users. Only one judge answered that he never used comparative material in justifying his legal conclusions on rights (though he did note his use of such material in other ways, ‘rarely’). We found that the frequency with which judges used comparative material in justifying their legal conclusions on rights was significantly related to the frequency with which they cited foreign law (χ2=21.11, df=2, p>.05).Footnote 36
The response to Questions 1 and 6 is consistent with the claim that foreign judges form a judicial reference group on constitutional rights. The claim is positively supported by number of judges indicating they had had personal contacts with judges of other jurisdictions that had contributed to their analysis of domestic rights (49 per cent); (Question 14). Such judges tended to be frequent citers of foreign law. The claim is also supported by the contrast which emerged with respect to Question 3B: 44 per cent of frequent citers held foreign judges in higher professional esteem than subordinates, compared with only 10 per cent of infrequent citers. Had the two judges who indicated no particular sense of professional esteem for foreign judges—both infrequent citers—taken the opportunity to register their relative esteem, the contrast would presumably have been more pronounced. The claim is likewise supported by the finding of a statistically significant relationship between the prioritizing of attendance at a speech by a foreign judge on rights (a priority attributable to over 50 per cent of judges generally) and the justificatory citation of foreign law (Questions 6 and 16).
Three explanations of how foreign judges could come to form a reference group in relation to rights have been suggested: that judges look abroad to reinforce their own professional status, to strategically influence foreign groups/satisfy the urge to belong to a perceived community of nations, and to reach better legal decisions. Ostensibly, the operation of a reference group in any one of these ways on a given judge is mutually exclusive—making the prevalence of one all the more interesting. Before addressing their prevalence, we consider the more general question of judicial audience impact.
B. Audience Impact
Question 12 asked:
Who is your judgments' typical audience comprised of?
a) The parties to the dispute
b) Respected judges
c) Agencies/Organs of the State
d) Subsequent generations
e) The international community, broadly conceived
f) God
g) Other—please specify
All judges answered this question, and none indicated that they considered God to comprise part of their judgments' audience. Only three judges (seven per cent) indicated that their audience was comprised solely of the parties to a dispute, whereas only two excluded the parties. Sixty-five per cent considered agencies or organs of the State part of their audience, while almost a third of participants held subsequent generations in this light. Almost a fifth considered the international community part of their judgments' audience. Emerging through the ‘other’ column, also with 19 per cent, was the category of lawyers potentially affected by one's judgment, be it subordinate judges or practitioners.Footnote 37 Another set of audience members emerging, with 16 per cent volunteering it, was the general public or ‘man on the street’.Footnote 38 The final ‘written in’ audience category was academia, with 9 per cent describing it as part of their audience.Footnote 39
Twenty-one judges (49 per cent) indicated that respected judges formed part of their judgment audience. All but one of these respondents had answered positively (‘yes’ or ‘to some extent’) when asked if they held foreign judges in high professional esteem (Question 3). Accordingly, it seems that foreign judges constitute part of the perceived judgment audience of almost half of our respondents.
By and large, it is as one might expect; the perceived judgment audience of an apex judge will include the parties; usually the organs of State; sometimes posterity; and rarely, academia. The relatively low ranking attributed to the general public is consistent with much American research.Footnote 40 Perhaps more surprising is the extent to which respected judges feature, and, by extension, foreign judges. Considering the number of academics devoting their careers to dissecting and criticizing the decision-making of apex judges, it suggests the self-sufficiency of the judiciary as its own professional reference group. Perhaps it should indeed be thought of as a ‘guild’.Footnote 41
Our data offer modest help with the general question of whether perceived judicial audiences affect judicial decision-making. In the face of what would seem to have been a countervailing bias, a third of judges said that they were responsive to their audience's attitude towards the use of comparative material (Question 12A). If there is indeed an audience effect on decision-making, it must still be decided whether it is for esteem in itself that judges are working.Footnote 42 In this regard, consider that most judges who indicated their responsiveness to their audience's attitude toward comparative material had noted ‘respected judges’ as part of their perceived audience (just under a quarter of total respondents).Footnote 43 Assuming there is no particular strategic value to the apex judge in responding to the perceived priorities of ‘respected judges’, and that responsiveness towards a ‘respected’ source would not be merely presentational, these data tend to suggest the occurrence of non-strategic forms of audience responsiveness in judicial decision-making.Footnote 44
We have noted reasons for confidence that, for many judges, foreign judges constitute a reference group in relation to constitutional rights. We have also noted three possible bases for the development of such a group—to reinforce professional status, to strategically influence foreign groups/satisfy the urge to belong to a perceived community of nations, and to enhance the quality of one's legal conclusions on rights. We now assess the likely prevalence of each basis, along with that of the null hypothesis—that foreign judges and legal systems are used merely to indicate the merit of outcomes in whose determination they have not in fact had an input.
C. Basis I—Inter-state Acceptance/Influence
The data offer mixed support to the hypothesis that judges compare in order to help satisfy the urge to belong, or sense of belonging, to a perceived community of nations.Footnote 45 Eight judges indicated that the ‘international community’ was part of their judgment audience. Of these judges, half perceived themselves as audience responsive and three quarters were frequent foreign law citers. However, the dismissal of both foreign law as a source of information on the moral attitudes/viewpoints prevailing abroadFootnote 46 and of ‘the gains to your state's international standing from a visible judicial engagement with foreign ideas and attitudes’Footnote 47 suggest that comparison for the sake of inter-State acceptance is not widespread. Equally, for these reasons, and in light of the relatively little emphasis placed on ‘assisting the work of establishing enlightened approaches to rights in emerging democracies’,Footnote 48 the data suggest a similar verdict for the alternative hypothesis that judges compare so as to strategically influence foreign groups.Footnote 49
D. Basis II—Transnational Judical Acceptance
The two remaining explanations of how foreign judges could come to form a reference group in relation to rights appear somewhat better supported. Take the hypothesis that judges are seeking to be rewarded with professional approval or acceptance.Footnote 50 Question 16 asked:
If, at a conference, you had to decide between attending five different speeches on rights without knowing what topics the speeches would address, which would you choose? Please rate in order of priority. 5=highest
a) The speech by the subordinate domestic judge
b) The speech by a member of your own court
c) The speech by a supreme court judge from abroad
d) The speech by a domestic academic
e) The speech by an academic from abroad
There were eight non-responses, many of whom considered the hypothetical unanswerable in the absence of information on speaker identity. (Though the comment of one such judge took a different tack, ‘I would avoid all of the speeches like the plague. There is no end to lectures, conferences etc on the topic. They tend to be extremely dull.’) Of those who answered, 23 (68 per cent) gave their highest preference to attendance at the speech by the foreign judge (53 per cent overall). Consistent with the current hypothesis, there was a statistically significant correlation between prioritization of attendance at a foreign judge's speech and justificatory citation of foreign law (χ2=19.25, df=6, p<.05). The hypothesis is also consistent with the large proportion of judges for whom foreign judges form part of their judgment audience (47 per cent), and the fact that half of those judges noted their responsiveness to their audience's attitude towards the use of comparative material.Footnote 51 The hypothesis is positively supported by the statistically significant tendency of those indicating a greater sense of professional esteem for foreign judges over domestic subordinates to think international human rights law the tool most useful for resolving rights questions—it may be seen by some as an opportunity to engage in the interpretation of common legal instruments.Footnote 52 As against it, there is the lack of an appreciable correlation between high professional esteem for foreign judges and frequency of comparative citation (Question 3). Equally, there is the degree of opportunism apparent in attitudes towards the use of foreign law (Question 9):
Which, if any, of the following considerations might justify the citation of comparative material in the interpretation of domestic rights? (Please rate in order of importance) 8=highest.
a) The gains to your state's international standing from a visible judicial engagement with foreign ideas and attitudes.
b) It provides an additional source of impartial guidance (such as precedent), thus facilitating objectivity in judicial interpretation.
c) It provides an additional factual source, thus enabling the court to make more accurate predictions as to the effects of challenged laws and rights.
d) It provides an additional source of legal authority, thus increasing the chances that a legal authority can be found to match what you already believe to be the best result from a policy perspective.
e) It assists the work of establishing enlightened approaches to rights in emerging democracies.
f) The importance of upholding comity between judges internationally.
g) It demonstrates that the judicial review of legislation for compatibility with rights also happens in other respectable democracies.
h) Other—please specify.
Twelve of the question's 40 respondents (30 per cent) ranked B the most important consideration justifying the citation of comparative material; 8 respondents (20 per cent) ranked D the most important; 5 (12.5 per cent) ranked E most important; while the rest received negligible attention.Footnote 53 As an admission of false advertising, there would seem to be a strong bias against judges revealing—even in a confidential survey—the view that the most important reason for resort to comparative material is that it increases the chances that a legal authority can be found to match what one already believes to be the best result from a policy perspective.
E. Basis III— Decision Enhancement
We come now to the epistemic basis for the development of foreign judicial reference groups; that judges look to foreign law because they feel it increases the chances of their reaching the correct legal conclusion. This is the picture suggested by the emphasis on judges' increased sensitivity to foreign law as persuasive authority.Footnote 54 The epistemic hypothesis is consistent with the substantial proportion of judges who acknowledge making indirect use of their legal knowledge of other countries,Footnote 55 at least to the extent that such usage is deliberate. If such usage is deliberate, however, it appears in tension with the principle that the legal reasons for judgment are to be cited.
The epistemic hypothesis is also consistent with the significant negative correlations between, on the one hand, the justificatory usage of foreign law and, on the other, the views that the constitutional protection of rights is best secured by reference to national sources alone (Question 15; (sr=3.0 χ2=18.47, df=8, p<.05)) and that the citation of comparative material is undemocratic (Question 11; (χ2=11.88, df=2, p<.05)).Footnote 56 Equally, it is consistent with the fact that most judges say their approach to comparison is affected by a concern that they may not fully appreciate the legal and factual context surrounding material from other jurisdictions (Question 13).Footnote 57 On this point, consider Question 10:
Which traits must other jurisdictions possess to justify their citation in a judgment about domestic rights? Please mark as many as appropriate.
a) None in particular
b) They must be democratic
c) They must be a ‘common law’ jurisdiction
d) They must speak the same language
e) They must have close historical links (such as a colonial association etc.)
f) Other—please specify
A large majority of judges, 81 per cent, indicated that a democratic form of government was a prerequisite for the citation of the law of another jurisdiction in a judgment about domestic rights. Conversely, 17 per cent of judges indicated they set no jurisdictional prerequisites. Only a single judge indicated a set of traits that did not include democracy, namely, that it be a common law jurisdiction. Other than democracy, the most cited prerequisite was that it be a common law jurisdiction (26 per cent), followed by commonality of language (14 per cent). There were seven comments to the effect that, were a jurisdiction to possess the ‘same language’ and ‘common law’ traits, it would be more readily comparable, but that, democracy aside, such traits were not a sine qua non.
That most judges indicate adherence to general criteria in assessing the comparability of a jurisdiction is consistent with the epistemic hypothesis.Footnote 58 Nevertheless, the lukewarm support shown for foreign law as an aid to legal objectivity (only 30 per cent of responding judges rating it the most important justification for citing comparative material), as an aid to making accurate predictions as to the effects of challenged laws and rights (also Question 9), and for discovering foreign moral attitudes and viewpoints (Questions 2 and, less so, 5A) weigh against the idea that judges compare according to the rational ideal.
F. Foreign Law as Faux Reference
Finally there is the possibility that foreign judges and legal systems are a faux reference group; that they are used to advertise the merit of decisions in whose determination they had in fact no input. This has been a much-debated matter. The battle lines are not clearly drawn between those pro- and anti-judicial comparison, however—at times critics of comparison have assumed its decisional impact,Footnote 59 while its supporters have described attractions that suggest the play of opportunism.Footnote 60 Evidently, the existence of foreign judges and legal systems as a faux reference group is at odds with the epistemic model of judicial comparison. Consider Eric Posner and Cass Sunstein's suggestion that:
[T]he pervasiveness of this practice [the frequent consultation of foreign law by courts] is best understood by reference to the Condorcet Jury Theorem: if many courts have decided on a particular course of action, and if each of them is likely to make choices that are better than random, there is excellent reason to believe that this course of action is right.Footnote 61
On the other hand, accusations that comparing judges engage in citational ‘cherry-picking’ have been prominent in both the academic literature and official judicial opinion.Footnote 62 Comparative law is said to lend itself to such opportunism in a way that domestic precedent does not; that ‘any judge wanting a supporting citation has only to troll deeply enough in the world's corpora juris to find it.’Footnote 63 In response, globalist scholars note the presence of ‘increasing numbers of judges in particular jurisdictions who appear to consider it important to distinguish judgments of foreign courts if they go against the conclusion that the judge intends to reach.’Footnote 64 The greater the practice of distinguishing foreign law, the more its citation has in common with the citation of domestic court decisions. An inclination to distinguish foreign law certainly suggests an interest that goes beyond mere ad hoc cherry-picking. But even if the practice of distinguishing foreign law were fully developed, that would not resolve the matter—there remains an open debate on the extent to which domestic precedents in fact constrain apex judges.Footnote 65
The notion that foreign law is cited because indications of correspondence with other jurisdictions are useful for persuading domestic observers of the legal merits of a decision is supported by Question 9. Despite what must have been a strong countervailing bias, 20 per cent rated ‘increasing the chances that a legal authority can be found to match what you already believe to be the best result from a policy perspective’ the most important reason for resorting to comparative material. Two-thirds ranked it an important consideration justifying the citation of comparative material, ie, 67 per cent of judges gave it at least their third highest ranking, where those ranking third provided five or more rankings. Looking abroad for the purpose of finding legal authorities to match what one already believes to be the best result from a policy perspective is conceptually distinct from offering comparative citations as ‘sales puff’ for what one anyway believes to be the only legally correct decision. It is also distinct from reaching a policy decision by way of foreign examples; the decision is already made.
The faux reference model is consistent with the published empirical work on the question, limited though that is. Thus, Alan Paterson's landmark 1982 study of the British House of Lords found that ‘the Law Lords have experienced little or no difficulty in rejecting or ignoring the consensus of these other countries [those typically cited] when they prefer to retain their own line.’Footnote 66 Bijon Roy's recent citation study of the Canadian Supreme Court also offers relevant data. Roy reports that of the 402 Charter of Rights cases decided between 1998 and 2003, 34 contained opinions featuring a total of 87 individual references to foreign law. Forty-two of these references are reported to have been used in support of the referring opinion's conclusion, with 16 used to distinguish the relevance of the foreign approach. 29 references were characterized as ‘surveys’. The latter were ‘often used’ to ‘demonstrate an established or emerging pattern’Footnote 67 consistent with the Court's analysis.
A citation bias seems apparent on Roy's figures. Why did judges encounter foreign law that agreed with their ultimate conclusion 75 per cent of the time? It was not because of a strong general inclination to adopt the position of the foreign jurisdictions in question. If that were the case, there would surely have been reference to these jurisdictions in more than 34 of 402 Charter decisions. Presumably, foreign law was but one of a number of factors in the determination of these decisions, one which, only very occasionally, might have made the difference. But, if so, why does foreign law happen to stack up on the side of the judge's ultimate conclusion three times out of four? Moreover, Roy reports no clear instance of a judge acknowledging foreign law as relevant, but outweighed.Footnote 68 Strictly, it seems the judges did not once recognize the position of one of the foreign jurisdictions as being on point but at odds with their ultimate conclusion.Footnote 69
The evidence of current judicial practice does not quite support Padyuma Tripathi's observation that the positions of foreign legal systems:
[P]ossess no compelling force of their own;…any or all of them could be conveniently ignored altogether; and, of course, any of them could be cited in support of a decision where it happens to suit.Footnote 70
But neither does the evidence make it look foolish. It seems that globalists have correctly identified an interesting factor in judicial decision-making; that, for many judges, foreign judges form a reference group in relation to constitutional rights. Conversely, the data suggest that the globalist conception of judges citing foreign law as a source of persuasive authority may apply to only a minority of judicial comparativists. Citational opportunism and the aspiration to membership of an emerging international judicial ‘guild’ appear to be equally important strands in attitudes towards the use of foreign law.
IV. IMPLICATIONS FOR THE THEORY OF LEGAL REASONING?
The respectable showing of the opportunistic and sociological models of judicial comparison suggests a more general point about the nature of apex adjudication. Consider Ronald Dworkin's theory of legal objectivity, ‘They [critics] think I must be saying not just that there are right answers in some ordinary way, as an unselfconscious lawyer might say that…’.Footnote 71 While Dworkin cites his theory' consistency with the views of working lawyers,Footnote 72 he has questioned the value of the survey as a means of revealing them.Footnote 73 The essence of his concern is captured in the quote above; what is important is what lawyers think, not what they think they are supposed to think. The use of a survey to generate evidence to test a legal theory of whose dominance judges are conscious, will be vulnerable to the criticism that it reveals only what they think they are supposed to think. Accordingly, Dworkin rejects judicial surveys.Footnote 74 But the corollary of Dworkin's criticism is also captured by the quote—if the way in which there are right answers to legal questions manifests itself in how unselfconscious lawyers talk, it is vulnerable to evidence impugning the possibility of certain kinds of unselfconscious talk.
It is submitted that the inadequacy of the romantic story of judicial comparison is an inadequacy of the romantic story of apex adjudication. In the context of a survey on the use of a particular legal source, Question 9 asked what might justify the citation of comparative material in the interpretation of domestic rights. It did not ask judges to give their theory of law, to offer their view on whether some school of jurisprudence has it right. Equally, it did not ask judges whether they think all legal questions have legally determined answers. It simply asked about the value of a particular kind of legal source in a particular field of law. Those judges who answered that the source ‘provides an additional source of legal authority, thus increasing the chances that a legal authority can be found to match what you already believe to be the best result from a policy perspective’ revealed a theory of the source's value at odds with a belief that there are always legally right answers. Such judges—of whom there was a significant number—could not unselfconsciously think that there are legally right answers in cases in which they would be ready to cite foreign law.
In concluding that the proportion of opportunistic citers of foreign law is significant, we acknowledged the presence of a bias against revealing such motives, even in an anonymous survey. The reasons for thinking a bias against such answers exists are likewise reasons for doubting that judges thought that they were supposed to think such answers appropriate. The first reason seems to apply equally to the question of whether all legal issues have legally determined answers; that, in justifying their decisions, judges almost always write as if the issue at hand has a legally determined answer. The second reason is that much of the criticism levelled at the citation of foreign law in rights cases is that the practice is, or is liable to become, opportunistic. Judges conscious of the recent debate about comparative law will be aware of this criticism and accordingly unlikely to imagine that they are supposed to think that foreign law is to be cited opportunistically. We also supported the conclusion by noting our data's consistency with Roy's documentary citation study of the Canadian Supreme Court—a form of inquiry that, by its nature, is not vulnerable to introspection bias.Footnote 75
Moreover, the data indicate that some judges use comparative material to earn the professional approval of ‘respected’ foreign judges. Responsiveness towards a ‘respected’ audience seems unlikely to be merely presentational. As such, judges using foreign law to earn professional approval seem likely to give it a genuine decisional input. In acting out of a desire for acceptance, such judges do not understand the outcome of rights cases in which they apply foreign law as a matter with respect to which personal social gain is coincidental. Accordingly, if they believed such cases to have legally correct answers, they would be acting in bad faith by deciding them with a view to securing the greatest social reward. It seems best to assume that they do not consider the cases to have legally determined answers.
In light of the apparent footing of the sociological and opportunistic models of judicial comparison, the survey data appear to present a range of cases in which many or most judges do not regard themselves as pursuing the discovery of the legally correct answer.Footnote 76
A question seems prima facie less likely to have a determinate answer if it is one which eludes a significant number of informed observers. It follows that the obvious candidates for legal questions lacking legally determinate answers are those which are judicially controversial. Thus it is noteworthy that citation studies of judicial comparison have found statistically significant correlations between the citation of foreign law and the number of opinions filed in a case.Footnote 77 Such correlations between legal controversy and the use of foreign law support our finding that significant numbers of apex judges cite opportunistically or to win extra-jurisdictional social reward—given no legally determined solution, non-legal criteria would come to the fore. In making this observation, we are careful to note that our finding is concerned only with the constitutional rights judgments of apex judges in which they would be ready to cite foreign law. The data offer no reason for thinking unselfconscious talk about right answers is rare—even in appellate courts.Footnote 78
In principle, the survey's final question should have cast further light on the matter.
Question 19:
What is the main reason behind your use of domestic precedents?
• To indicate that you are taking a course that has been endorsed by respected professionals
• To help confirm whether your particular conclusion is on the right track
• To promote a sense of predictability of legal outcome
• As a source of ideas as to how best to resolve the case at hand
• To free up judicial resources by reducing the need for in depth consideration of the case at hand
• Other—please specify
The question was rather unpopular with respondents, with only 29 offering an answer. There was considerable disagreement with its underlying assumption; that apex courts are responsible for the effect of their previous decisions on any pending decision. Of those who answered, 11 judges indicated that the main reason behind their use of precedent was the promotion of a sense of predictability of legal outcome; seven indicated that their main use of precedent was as a source of ideas with which to resolve their cases; seven used precedent mainly to help confirm whether their conclusions were on the right track; and four used it mainly to indicate they were taking a course that has been endorsed by respected professionals. We may at least continue assuming that the promotion of legal certainty is a leading reason for judicial adherence to (domestic) precedents in apex courts.
V. CONCLUSION
A general limitation to this study as an insight into the drivers of comparative legal argument is its focus on judges. Judges certainly seem a necessary element in the transnationalization of constitutional rights discourse. But the work of appellate trial lawyers is widely regarded as an important factor in a common law judge's reasoning, at least in its published form.Footnote 79 The tactical thinking of such lawyers and judicial attitudes towards their work, as well as the impact of broader societal factors,Footnote 80 merit serious consideration.
Nevertheless, what we have found suggests that the globalist school has correctly identified an interesting factor in judicial decision-making on constitutional rights; that, for many apex judges, foreign judges form a reference group on the resolution of such questions. Conversely, the data indicate that the globalist conception of judges citing foreign law as a source of persuasive authority may apply to only a minority of judicial comparativists. Citational opportunism and the aspiration to membership of an emerging international judicial ‘guild’ appear to be equally prevalent strands in attitudes towards the use of foreign law. The survey data accordingly appear to present a range of cases in which many or most apex judges do not regard themselves as pursuing the discovery of the legally correct answer. This is consistent with the findings of other empirical research into judicial comparison. Notwithstanding Dworkin's caution about the pitfalls of direct inquiry, the result is tension with his theory of legal objectivity.
