This Article describes the emergence and operation of a powerful type of social norm which is not only ingrained into the very fabric of society, but is also accepted and internalized by a high percentage of populations all over the world. This type of norm is termed a quasi-global social norm. This Article introduces quasi-global social norms by giving an account of their origin and development. Quasi-global social norms are shown to originate as a result of the sociological necessity that individuals have to rely upon one another for survival and self-betterment. This instinctual reliance causes these norms to penetrate deep into the subconscious of individuals and contributes to their almost universal adherence. Their development and enforcement is contingent on their internalization by large segments of society. Thus, quasi-global social norms tend to be abstract behavioral guidelines rather than specific rules of conduct, and to substantively relate to notions of fundamental import such as liberty and fairness. This Article continues by showing that the personal interactions that sustain quasi-global social norms are both continuous and pervasive, so much so that they seep into the legal system which, to be effective, must adapt itself to the prevailing quasi-global social norms. This Article concludes by reviewing two U.S. Supreme Court decisions, Romer v. Evans and Lawrence v. Texas, which illustrate how and when quasi-global social norms inform contemporary social and legal behavior.
This Article provides a selection process for foreign persuasive authority within the context of comparative analysis. In Lawrence v. Texas, the Supreme Court struck down as unconstitutional a state statute relying, in part, on select foreign sources of authority. Recent scholarship has attacked the Lawrence Court's use of foreign authority, and in particular, its apparent self-serving and biased penchant for preferring materials from Western democracies at the expense of all other countries. This Article responds to that charge. This Article argues that by combining the results of an historical analysis of the use of foreign authority with modern trends in social sciences and legal scholarship, it is possible to construct a framework within which the selection of appropriate foreign materials for comparative analysis by U.S. courts can operate. First, this Article traces the history of comparative analysis in the United States and, describing its normative impulse, illustrates that the ethos of comparative law in this country has always been one of informed nation selection. Based upon this notion, this Article then presents a tri-partite framework in which the selection of foreign persuasive authority can take place: a framework which, depending on the specific context of the case, combines the democratic credentials of the originating country with such country's societal affinities to the United States. This Article concludes by showing that the Lawrence majority's selections complied with this framework, thus demonstrating that a cohesive and principled process lay behind the Court's particular choices of foreign persuasive authority.
This Article provides a selection process for foreign persuasive authority within the context of comparative analysis. In Lawrence v. Texas, the Supreme Court struck down as unconstitutional a state statute relying, in part, on select foreign sources of authority. Recent scholarship has attacked the Lawrence Court's use of foreign authority, and in particular, its apparent self-serving and biased penchant for preferring materials from Western democracies at the expense of all other countries. This Article responds to that charge. This Article argues that by combining the results of an historical analysis of the use of foreign authority with modern trends in social sciences and legal scholarship, it is possible to construct a framework within which the selection of appropriate foreign materials for comparative analysis by U.S. courts can operate. First, this Article traces the history of comparative analysis in the United States and, describing its normative impulse, illustrates that the ethos of comparative law in this country has always been one of informed nation selection. Based upon this notion, this Article then presents a tri-partite framework in which the selection of foreign persuasive authority can take place: a framework which, depending on the specific context of the case, combines the democratic credentials of the originating country with such country's societal affinities to the United States. This Article concludes by showing that the Lawrence majority's selections complied with this framework, thus demonstrating that a cohesive and principled process lay behind the Court's particular choices of foreign persuasive authority.
This Article seeks to clarify the current debate concerning the use of non-U.S. persuasive authority within the context of constitutional interpretation. It begins by noting that commentary on comparative constitutional law often fails to make any distinction between foreign domestic sources and international law used comparatively, and thus risks evoking parallels between different systems of law that lack context and plausibility. It then draws on various normative theories and underpinnings of both domestic and international legal regimes to show that a proper comparative enterprise must take this distinction into account. The Article concludes by explaining that only when those policy goals of international law and domestic law coincide should international law materials be called upon as sources of persuasive authority for domestic constitutional interpretation.
This Article seeks to untangle part of the debate concerning the use of international law as persuasive authority within the context of U.S. constitutional interpretation. It begins by noting that international law is being used comparatively within the framework of constitutional analysis but such usage lacks structure and context. It then posits that U.S. courts should only use international law as persuasive authority when this fits within the goals of the comparative enterprise. By combining comparative theory and historical practice, the Article concludes by proposing a methodology for employing international law as persuasive authority
I. INTRODUCTION In the wake of Lawrence v. Texas (1) and Roper v. Simmons, (2) most of the legal world in the United States was alerted to the existence of constitutional comparative analysis. (3) Reactions to the use of non-U.S. persuasive authority in those decisions ranged from cheers and applause to jeers and catcalls, the latter being far more voluminous than the former. (4) The opposition to the practice of using foreign authority became a rallying cry that found its expression in various fora. For example, in the political arena, several members of congress offered resolutions condemning and prohibiting constitutional interpretation by methods of comparative analysis, (5) while, in the judicial realm, two prospective Supreme court candidates essentially had to swear absolutist blood oaths repudiating the whole enterprise. (6) The din raised was so pervasive that it seeped out of the halls of congressional hearings to find an echo chamber in popular media. (7) But the cacophony reached its most feverish pitch in the realm of legal scholarship. Scholars quickly took sides in this debate, with opinions divided ideologically between those sympathetic to an expanding view of supporting the use of foreign authority (8) and those who decried the very idea of constitutional comparative law. (9) While academics on both sides of the issue offered sound and persuasive normative analysis, most of the commentary has been somewhat one-dimensional. (10) This is because the almost singular focus of the debate has been to discuss whether it is appropriate for U.S. courts to engage in comparative constitutional analysis or not. (11) Although this debate is important, it should constitute the starting point (rather than an end in and of itself) for a more comprehensive and theoretical discussion about the various facets of constitutional interpretation encompassed by comparative constitutional law. This Article proposes to examine one of those facets in detail. This Article focuses on the aspect of constitutional interpretation that can be referred to as the law dilemma. In the traditional application of comparative constitutionalism in this country, an American jurist consults materials from outside the body of U.S. law that then serve as persuasive authority in a particular case to better interpret a U.S. constitutional provision at issue. For the purposes of this Article, those materials can come from two different repositories of legal opinion: (12) foreign domestic law (13) and international law. (14) So what is the dilemma? The dilemma stems from the fact that when an American judge chooses to engage in constitutional interpretation that involves comparative constitutional analysis, he or she chooses some non-U.S. legal material to compare with the United States Constitution. In other words, the object of comparison will always be domestic law (the U.S. Constitution). However, as noted above, the source of the subject of comparison (that to which the U.S. Constitution is being compared) might originate within the domestic law of a foreign state or among the body of international law. The question then arises: is it appropriate to consult international law when the issue to be resolved by the U.S. court is a domestic constitutional provision? If an American judge chooses a decision, for example, of the Supreme Court of Canada interpreting its own constitution as an aid to interpret a similar provision of the U.S. Constitution, the comparison would be of a domestic, albeit foreign, law to another domestic law. (15) Prosaically, one could say this would be comparing apples to apples (possibly Mcintosh to Red Delicious). But the use of international law, which by definition is not domestic, in this context would be more akin to comparing apples to oranges. This therefore presents the intriguing conundrum of whether the comparison is intellectually and legally plausible, (16) given that many scholars, legislators, and judges treat international law and domestic law as two distinct and separate realms. …
This Article describes the emergence and operation of a powerful type of social norm which is not only ingrained into the very fabric of society, but is also accepted and internalized by a high percentage of populations all over the world. This type of norm is termed a quasi-global social norm. This Article introduces quasi-global social norms by giving an account of their origin and development. Quasi-global social norms are shown to originate as a result of the sociological necessity that individuals have to rely upon one another for survival and self-betterment. This instinctual reliance causes these norms to penetrate deep into the subconscious of individuals and contributes to their almost universal adherence. Their development and enforcement is contingent on their internalization by large segments of society. Thus, quasi-global social norms tend to be abstract behavioral guidelines rather than specific rules of conduct, and to substantively relate to notions of fundamental import such as liberty and fairness. This Article continues by showing that the personal interactions that sustain quasi-global social norms are both continuous and pervasive, so much so that they seep into the legal system which, to be effective, must adapt itself to the prevailing quasi-global social norms. This Article concludes by reviewing two U.S. Supreme Court decisions, Romer v. Evans and Lawrence v. Texas, which illustrate how and when quasi-global social norms inform contemporary social and legal behavior.
What is “the right to dignity”? Even though the role of human dignity within the framework of legal rules has attracted scholarly attention for some time, it is only relatively recently that courts in the U.S. have shown a similar interest in exploring the existence and extent of dignity rights. Unfortunately, these judicial legal pronouncements that have explicitly or implicitly evoked the idea of a right to dignity have done so in an ad hoc manner and have not explained what the contours of such dignity rights should be. This Article presents four possibilities of what U.S. courts should be intending when they invoke references to the dignity of the person. It notes that each of these possibilities is founded in a very different theoretical understanding of dignity rights. The Article then concludes by exhorting that courts coalesce around one of these possibilities (and offers a suggestion as to which of these it should be) so that a more secure legal foundation can be built for the development of dignity rights in the U.S.
This Article seeks to untangle part of the debate concerning the use of international law as persuasive authority within the context of U.S. constitutional interpretation. It begins by noting that international law is being used comparatively within the framework of constitutional analysis but such usage lacks structure and context. It then posits that U.S. courts should only use international law as persuasive authority when this fits within the goals of the comparative enterprise. By combining comparative theory and historical practice, the Article concludes by proposing a methodology for employing international law as persuasive authority by U.S. Courts.
