Aristotle, Cicero and Cardozo: A Perspective on External Law

Abstract

In this essay, based on opening remarks at a symposium on the use of foreign law in American court decisions, Professor Bonventre notes that the practice of considering extra-national law is as old as antiquity.

He recalls, for example, that in Ancient Greece a distinction was made between local or particular law and universal law. As Aristotle explained, the former was peculiar to the local society, whereas the latter was based on more widely-recognized principles and was binding everywhere. In Rome, the reality of diverse cultures and peoples over which the Empire ruled was reflected in Cicero's observation of common threads in values recognized by reasonable people everywhere, regardless of the nation or culture. Such supra-local principles could be identified through the examination of non-domestic law.

In our own jurisprudence, Benjamin Cardozo delineated the contours fundamental rights that are applicable to all American governments, state as well as federal. In his seminal opinion in Palko v. Connecticut, he warned against a "parochial" or "provincial" view based solely on home-grown national preferences as opposed to the very meaning of "liberty" - as understood not only across state lines, but across the ocean as well.

Keywords: Aristotle, Cicero, Cardozo, Palko, citation to foreign law, fundamental rights