On Cosmopolitanism
There has been a debate raging in recent years on whether cosmopolitanism – the judicial practice of citing to foreign law and foreign judicial decisions – has a rightful place in American jurisprudence. I argue in this post that it does not.
The problematic aspect of cosmopolitanism is that it seeks to treat foreign decisions as having precedential value for American courts – a jurisprudence that would transform the American legal system by placing foreign decisions, handed down in what may be radically different legal regimes, on par with persuasive authority of sister courts with the same legal function and applying what might be the same or largely similar law. But until a system of global governance emerges – a system where countries are states in a global federalism – or the Constitution is explicitly amended to allow judges to look outside American borders, there is no legal justification for such a jurisprudence.
A global network of judges that cite one another’s decisions in an effort to create a uniform and global consensus on certain issues is, legality aside, a noble ideal. If the world spoke with one voice on human rights and the proper role of government many of the world’s problems would disappear. However, such a global judiciary has to have some sort of legal justification, which to date does not exist. We do not live in a world with a central governing authority that uniformly applies a “global law.” Rather, the world we inhabit is a collection of independent governments with their own judicial systems. Values vary tremendously from state to state, continent to continent. Each individual legal system gives its courts and its judges more or less power. Some systems, like the one in place in the United States, place a Constitution above all else. American judges cannot, in theory, go beyond what the Constitution allows. Other systems, like the Israeli regime, bestow upon judges a power unchecked by a higher law. Take the former Chief Judge of the Israeli Supreme Court Aharon Barak’s jurisprudence as an example. His role is somewhat that of an all-knowing oracle, articulating his version of right and wrong without any constraints but his own conscience. Thus, if an American justice were to find a decision by Aharon Barak persuasive, it would not only be saying that American law is somehow identical to Israeli law, but would also implicitly be saying that U.S. Supreme Court justices and Israeli Supreme Court judges play the same role and are similarly checked and balanced by their individual legal systems. But this is simply not the case.
Persuasion must be legal. There are many ideas that people may find persuasive. I may find persuasive a friend’s investment strategy, his choices of where to get lunch, or his taste in movies. More on point, Congress may find persuasive the law of other nations in passing a similar law in the United States. But the paramount factor in deciding whether persuasiveness is legitimate is the source of the persuasion and the person or body adopting the persuasive idea. It is perfectly acceptable for me to adopt a persuasive idea or philosophy in living my daily life. There is no legal hurdle as I am allowed to be persuaded by anyone of my choosing. But it is another thing for a court with a unique constitutional function to adopt a decision of a much more powerful court with a non-existent constitutional function. The systems are not parallel and the judges possess different degrees of power. The American judiciary is bound by constitutional and statutory text; the Israeli judiciary is seemingly bound by the moral, philosophical, and legal compasses within the individual judges – they owe no allegiance to a higher law that sets the acceptable parameters of their decisions. Our legislative branch may find a foreign law appealing and choose to pass one that mirrors it. But it may do so only if the law is consistent with the limits of the Constitution as well as those provisions that empower Congress to act, namely the Commerce Clause. Since the Supreme Court’s primary function is to apply the law to a limited number of disputes, it has much less, if any, authority to apply what it finds to be persuasive foreign ideas to their adjudication.
At the very least, there would have to be a global consensus on the role of courts and judges for cosmopolitanism to be justifiable. Considering that this has evaded the United States since its founding, it seems unlikely that such a reality would transpire on a global level any time in the near future.
