Thursday, August 11, 2005

Citation of international opinion

Apparently, Justice Breyer is in favour of citing international authority. Not because it is correct, but because it can give judges in developing judiciaries 'a little boost'. So, the argument seems to be, where a country is struggling to establish, say, an independent judiciary, we should cite their law because then they will have a huge rush of pride and their countrymen will say 'oooh, look at XYZ J, the US Supreme Court is citing him, he must be a really good judge'.

Now, I can see where he is coming from. However, if I were a person who, or even a director of a company which had its case before the US Supreme Court, or High Court of Australia, I would hope that the law being cited was (1) relevant (which I imagine Breyer J would be doing!!) and (2) relatively established (which I am doubtful of in the case of a developing judiciary), unless of course the case was completely novel. I would be upset if the law of, say, Botswana (a reasonably successful developing country) was cited in opinion against my submission in the Court. The only way I would not be extremely aggreived would be if the law being cited is exactly the same as the law in the country to which I am subject. However, if the law of Botswana in our example is parroting the law of the US, or Australia, then I would hope the case was decided on that law (ie national law).

What I guess I am saying is I would only approve of this kind of citation if it had no real effect on the outcome of my case. I think convergence in international legal systems would generally be a good thing, however I would hate a citation in my case to be used to 'make them feel good'. Yes, cite international precedent, but not just to assist in the establishment of an international judicial system.

By the way, is there any problem with the idea of 'judicial imperialism' here? Is it right for judges to cite international judges to 'spread the word' or to 'support the establishment of particular (assumed good) cultural institutions'? The motive for citation I think is especially important.


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