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
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
of the *100
interpretation of domestic U.S. laws. This
is as it should be. "There is not one law in Athens and another
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,
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
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
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.
*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; 27
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.
A. An Analysis as Wrong as it is Deep: Eastern Airlines v. Floyd
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
The Court correctly
took the first step-literal interpretation 36
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
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
Court said, "[o]ur review of these materials indicates neither
that "Ëślesion corporelle"„˘ was a widely used legal term in
French law nor that the term specifically encompassed psychic
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.
After treaties, French courts will consider ordinary
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
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
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
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
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
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,
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. 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
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.
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
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.
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.
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. 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
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
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
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
1. E. Airlines v. Floyd,
499 U.S. 530 (1991).
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.
2. Lawrence v. Texas, 539
U.S. 558 (2003).
3. Roper v. Simmons, 543
U.S. 551 (2005).
4. See, e.g., id.
5. 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.
6. Lawrence, 539 U.S. at
573 (citing Dudgeon v. U.K., 45 Eur.
Ct. H.R. (1981)).
7. "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
8. "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.
9. 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.
Schlochauer, ed.,Woerterbuch des Voelkerrechts, Berlin, 278
11. "[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).
12. 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 "Ëśdualist""„˘ 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.
13. 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).
14. 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).
15. Roper, 543 U.S. at
16. Id. at 624-26
(Scalia, J., dissenting).
17. 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.").
18. 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).
19. 6 ICCPR; Prosecutor
v. Blaskic, Appeals Judgment, No. IT-95-14-A, ¶¶ 143, 147-49, 152,
156-59 (July 29, 2004).
20. 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).
21. Holden v. Joy, 84
U.S. 211, 244 (1872); S.C. v. Catawba Indian Tribe, Inc., 476
U.S. 498 (1986).
22. "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).
23. Roper, 543 U.S. at
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)).
24. 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.
25. 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.
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
, 830-31, n.31 (1988) (plurality opinion), Enmund
v. Florida, 458
U.S. 782, 796
-97, n.22 (1982), Coker v. Georgia, 433
, 596 n.10 (1977). (plurality opinion), Trop v.
,102-3 (1958) (plurality opinion).
26. Alexander Pope, An
Essay on Criticism (1709).
27. 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.
28. "[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).
29. "Second is the
general principle that "Ëśliberty 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)).
30. R.R. Co. v. Husen, 95
U.S. 465, 471 (1878).
31. E. Airlines, 499 U.S.
33. 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.
34. Id. at 535.
35. Id. at 536.
36. "When interpreting a
treaty, we "Ëśbegin 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)).
37. Id. at 535-36.
38. 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.
39. 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.
40. C-439/01, Libor
Cipra, Vlastimil Kvasnicka v. Bezirkshauptmannschaft Mistelbach,
European Court of Justice, ¶ 41 (Jan. 16, 2003).
41. "The prohibition
against "Ëścruel 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.
42. E. Airlines, 499 U.S.
43. Id. at 537-39.
44. Id. at 538.
45. Id. at 538. See,
e.g., Conseil d'Etat, Decision n 2000-439 DC (16 Jan 2001). (cited
in E. Airlines).
46. 1795 Const. 89.
47. 1795 Const. 56-63.
48. 1795 Const. 55.
49. 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])
50. 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.
51. 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
52. See, e.g., Cons.
const., 16 Juillet 1971.
53. 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.
54. But where the exact
same parties litigate the exact same issue, remand is appropriate.
Cour de Cassation Chambre commerciale, (16 fevrier 1966).
55. 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.
56. 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).
57. For a discussion of
the general principles of French law, see CE Lujambio Galdeano,
September 25, 1984.
58. Jurisprudence in
French means case law, not legal philosophy. Doctrine in French
means the works of legal scholars.
59. "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.
60. E. Airlines, 499 U.S.
We find it noteworthy,
moreover, that scholars who read "Ëślesion 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 "Ëśgive
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.
61. E. Airlines, 499 U.S.
62. 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
63. E. Airlines, 499 U.S.
at 539 (quoting Plainol & Ripert, supra note 60, at pt. 1, No.
64. "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.
65. Lawrence, 539 U.S. at
66. Tex. Penal Code Ann.
§ 21.06(a) (Vernon 2003).
67. Lawrence, 539 U.S. at
68. 45 Eur.
Ct. H.R. (1981).
U.S. 186 (1986).
70. "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.
71. Roper v. Simmons, 543
U.S. 551 (2005).
72. "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).
73. "The opinion of the
world community, while not controlling our outcome, does provide
respected and significant confirmation for our own conclusions."
Id. at 578.
74. Atkins v. Virginia,
536 U.S. 304, 306 (2002).
75. '"[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,
U.S. 304, 317 n.21 (2002)).
76. Brief for The
European Union as Amicus Curiae Supporting Petitioner, McCarver v.
North Carolina, 533
U.S. 977 (2001) (No.008727).
77. See Thompson v.
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