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The Supreme Court, the Law of Nations, and Citations of Foreign Law: The Lessons of History


Daniel A. Farber


University of California, Berkeley - School of Law

December 15, 2006

UC Berkeley Public Law Research Paper No. 954359

Abstract:     
The Supreme Court's citation of foreign tribunals has been highly controversial. My purpose in this essay is to examine this controversy in light of historic American attitudes toward the "law of nations" and other forms of foreign authority. My thesis is that foreign law has deeply permeated our legal system from the very beginning. Citation of foreign law did not merely reflect the paucity of relevant domestic precedent. Rather, it reflected a deeply held understanding of law, in which background legal principles were not tied to any particular jurisdiction. Such background principles permeated specific legal systems, filling gaps and providing context for positive enactments such as statutes and written constitutions. Given this understanding of law, implementation of transnational legal principles was bound to be reflected in frequent citation of foreign legal authority.

The fact that a practice is deeply embedded historically does not prove its validity. It does, however, make it difficult to attack the practice as a suspect modern innovation or to make a plausible claim that disastrous results will surely follow. It is also difficult to argue that references to foreign sources violates the mandate of the framing generation, when members of that generation assumed that such reference would be made and indeed referred to transnational legal principles in the Constitution itself.

Number of Pages in PDF File: 26

Keywords: Supreme Court, law of nations, citations

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Date posted: January 2, 2007  

Suggested Citation

Farber, Daniel A., The Supreme Court, the Law of Nations, and Citations of Foreign Law: The Lessons of History (December 15, 2006). UC Berkeley Public Law Research Paper No. 954359. Available at SSRN: http://ssrn.com/abstract=954359 or http://dx.doi.org/10.2139/ssrn.954359

Contact Information

Daniel A. Farber (Contact Author)
University of California, Berkeley - School of Law ( email )
Boalt Hall
Room 894
Berkeley, CA 94720-7200
United States
510-642-0340 (Phone)
510-642-3728 (Fax)
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