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There has recently been significant discussion in the United States on the use of foreign law, and foreign legal proceedings, being used as a means for informing a domestic judge's rationale for deciding a case. Justice Breyer for example has come out in favor of the idea saying that judges can be informed by looking at the logical process and decision making efforts of judges in other countries with similar laws when deciding their own cases. Legal opinions at all levels already routinely cite foreign law as background.

However, given that every case has a unique set of circumstances and foreign law is not legally binding on any United States citizen, could a lower court's opinion be invalidated on the grounds that foreign law was too heavily relied upon (assuming it was not directly cited as precedent)? Is there any discussion of this practice in the code of judicial ethics? Finally, is this a potentially unconstitutional practice in its own right given that the Justice's constitutional duties limit them to "interpreting the constitution"?

NOTE: This question is distinct from an analysis of domestic laws and potential conflicts with treaty obligations (like this question) as treaties originate from within the domestic legal system. This question is only meant to look at wholly foreign laws, governing foreign peoples.

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Michael Kingsmill
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    In the case of contracts, it may even be required to consider foreign law or even religious law. I imagine your question is not about such specifics, but rather about drawing examples from other cases more generally? (In fact, some rulings of the ECHR were cited in Lawrence v. Texas.) – TRiG Jan 29 '13 at 18:55
  • Excluding the case of contract law in a foreign country, can you give an example when when foreign law has been used to decide a case, as opposed to being cited as case law? – DJClayworth Feb 06 '13 at 19:19
  • @Chad I am not referencing any specific case. However, I can specifically state I did NOT have Sharia law in mind as it is not the official law of any foreign country (as far as I know). I was speaking more about discussions around Supreme Court Justices citing foreign case law more frequently in their decisions. – Michael Kingsmill Feb 08 '13 at 15:53
  • Well what the supreme court does is completely different than what a lower court does. It might be worth clarifying that in the question. And the use of ruling is different than using the laws. In theory they are the same but in practice they are different. – SoylentGray Feb 08 '13 at 15:55
  • @Chad Please feel free to make an edit that you think would make it more clear. I already say "assuming it was not directly cited as precedent" so I am not sure how to get that idea across more clearly. I don't want to limit the question to SCOTUS though, as their decisions will clearly never be overturned. The question asks for uses of it by lower courts. – Michael Kingsmill Feb 08 '13 at 16:02
  • @MichaelKingsmill - SCOTUS can get away with things that would get cases overturned in lower courts. They are the final word and it is their responsibility to ultimately decide if the ruling fits the letter and spirit of the law. Evaluating how other courts have addressed similar concerns is part of that. That does not mean that it is appropriate for the lower courts. – SoylentGray Feb 08 '13 at 16:06
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    Orthogonal to your question, English common law before the US became a country is routinely used as precedent. – Baby Dragon Oct 30 '13 at 06:47
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    This is an interesting question, but isn't it a question about law instead of a question about politics? – Jorge Leitao Jan 30 '14 at 09:38

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I think you are misinterpreting the comments: "saying that judges can be informed by looking at the logical process and decision making efforts of judges in other countries with similar laws"

Note that "logical process and decision making efforts of ... " is the key bit here, not that the judge is in favor of following foreign laws to create precedent and in effect create new laws. Rather the opposite! The judge is suggesting that given that other states have similar or identical laws to ours, we can learn from the reasoning and decision making process of those judges.

So I think the question could use some improvement.

That said, the comments above suggest some answers to that improved question. As TRiG points out, given a dispute comes in front of a judge, and given that there is no conflict between the actual laws and the issue at hand, then if both parties agree to be bound by certain foreign laws, the judge could decide to treat those foreign laws as a type of contract law, even if a contract doesn't already specify that it follows certain foreign or religious laws.

Another good example could be that for a new law, if that similar law exists in other countries and has a lot of precendents there, but very few here, then those precedents could certainly help inform the decision making process for a national judge.

Arwin
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  • "the judge could decide to treat those foreign laws as a type of contract law, even if a contract doesn't already specify that it follows certain foreign or religious laws." That's a seriously slippery slope, which at the bottom lay Sharia. – RonJohn Jul 25 '18 at 21:29
  • Not so slippery slope. A contract saying that everything unspecified will follow Sharia is not different than the same contract giving specific clauses that may follow Sharia o be just made up for that contract. The validity of both depends on whether they contradict domestic law – Pere Jul 08 '19 at 08:52