An airliner nearly crashes. ¹ Cops arrest lovers having sex. ² A child who has murdered is to be executed. ³ 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, ⁴ considered the decisions not just of British Courts but also of the European Court of Justice ⁵ and the European Court of Human Rights ⁶ as persuasive evidence ⁷ 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."⁸ Rather, descriptive monism sees the law as a seamless whole. ⁹ The competing view, dualism, ¹⁰ posits that national and international legal orders are hermetically isolated. ¹¹ Yet, the national legal practice of courts in the United States, ¹² in Europe, ¹³ 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. ¹⁴

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? ¹⁵ 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. ¹⁶ Additionally, comparative law is problematic because sometimes *101 foreign courts are cited by U.S. courts, but ignored. ¹⁷ Like the advice of the Delphic Oracle, when the foreign law says what we want to hear, we listen. ¹⁸

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 ¹⁹ 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. ²⁰ Moreover, as the several United States and their federal government are successor states to the British crown, ²¹ British law, at least prior to the revolution, is the basis of U.S. law. ²² British law is thus particularly relevant to U.S. law. ²³ 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. ²⁴

*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. ²⁵

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"²⁶ ought to be the motto inscribed before foreign legal wellsprings.

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; ²⁷ equality; ²⁸ liberty; ²⁹ self defence ³⁰) 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.

Eastern Airlines involved an plane which nearly crashed, frightening passengers. ³¹ Some passengers wished to sue the airline company to compensate their psychological injuries. ³² The passengers were subject to the Warsaw Convention for the Unification of Certain Rules Relating to International Transportation by Air. ³³ The only authentic text of the Warsaw *104 Convention is French, and thus the Court had to follow the French text in its analysis. ³⁴ The treaty used the term "tout autre lesion corporelle"to describe the injuries resulting from accidents which could be remedied. ³⁵ The Court correctly took the first step-literal interpretation ³⁶-and noted, again correctly, that the term "lesion corporelle"is most exactly translated as "bodily injury."³⁷ 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, ³⁸ which has been adopted in the Courts of Germany, ³⁹ France, the European Union, ⁴⁰ 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, ⁴¹ 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 ⁴² to determine the interpretation of the meaning of the same term in a treaty. ⁴³ 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. ⁴⁴ Specifically, the Court said, "[o]ur review of these materials indicates neither that "Ëœlesion corporelle"„¢ was a widely used legal term in French law nor that the term specifically encompassed psychic injuries."⁴⁵ 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 ⁴⁶ via a special Court dedicated thereto-the Conseil Constitutionnel. ⁴⁷ Following the Constitution, international treaties, which are an integral part of French law, are next in the hierarchy of norms. ⁴⁸ After treaties, French courts will consider ordinary legislation. ⁴⁹ Shocking as it may be to a common law lawyer, international treaties outrank legislation in French domestic law. ⁵⁰ 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 ⁵¹ discovered by the scholars, case law, and customs are unwritten sources of law (more accurately, evidence of the law and interpretations of the law). ⁵² 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, ⁵³ but because cases only decide the issue presented, case law is generally not legally binding. ⁵⁴ 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. ⁵⁵

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. ⁵⁶ 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 ⁵⁷ 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 ⁵⁸) 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 ⁵⁹ 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. ⁶⁰

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." ⁶¹ 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. ⁶² 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."⁶³

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.

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. ⁶⁴ The facts of Lawrence are straightforward. The police, summoned to a domestic disturbance, interrupted a homosexual couple having anal intercourse in their home. ⁶⁵ Homosexual sex was illegal in Texas at the time. ⁶⁶ 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. ⁶⁷ 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. ⁶⁸ 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, ⁶⁹ 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. ⁷⁰ 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.

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. ⁷¹ 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. ⁷² Though such authority is not at all binding, it can be persuasive and confirm other arguments. ⁷³

The Court also recently rejected the application of death sentences to offenders who were mentally retarded. ⁷⁴ 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. ⁷⁵

It is worth pointing out that the European Union has filed briefs as amicus curiae before U.S. Courts ⁷⁶ and that the opinion of European Courts is persuasive evidence in U.S. Courts. ⁷⁷ Like it or not, foreign law is and will increasingly be a part of the U.S. legal landscape.

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.

---

Notes:

Id. (quoting 1 W. & M., ch. 2, § 10, in 3 Eng. Stat. at Large 441 (1770)).

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.

Id. Nevertheless, I disagree with Justice Scalia's contention that foreign and international law have no place in our Eighth Amendment jurisprudence. See Roper, 543 U.S. at 620-29 (Scalia, J., dissenting). Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency. See Atkins v. Virginia, 536 U.S. 304, 317, n.21 (2002) Thompson v. Oklahoma, 487 U.S. 815, 830-31, n.31 (1988) (plurality opinion), Enmund v. Florida, 458 U.S. 782, 796-97, n.22 (1982), Coker v. Georgia, 433 U.S 584, 596 n.10 (1977). (plurality opinion), Trop v. Dulles, 356 U.S. 86,102-3 (1958) (plurality opinion).

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)).