Foreign Authorities (Ancient and Modern)

When Senator Coburn today asserted, after asking Judge Sotomayor whether states have the right to determine the definition of death, that he did not actually expect her to answer the question, but simply to pay attention to it in her deliberations, he seemed to be conceding the likelihood of her confirmation. If this is the case, his interventions can be read as having a purpose apart from determining whether or not Judge Sotomayor should sit on the Supreme Court. Instead, Senator Coburn rehearsed for the American public a set of hot-button issues raised by the Supreme Court’s jurisprudence, including whether technological advances should affect the understanding of viability in the abortion context, whether there is a constitutional right to self-defense that underpins an individual right to bear arms, and whether American courts should cite foreign law.

The many rounds of debates about the citation of foreign law that have already occurred may render legal scholars somewhat fatigued with the topic, but it remains a point of public controversy. In her remarks, Judge Sotomayor lucidly and succinctly illuminated how much of the discussion consists in people talking past each other. As she emphasized, there is a public misunderstanding of what “using” foreign law means to most judges; rather than relying on foreign legal authority as a precedent or to influence the outcome of a case interpreting the U.S. Constitution or a statute, judges simply “use” foreign legal principles or decisions as helpful aids in thinking through domestic legal problems.

Had she been so inclined, Judge Sotomayor could perhaps have cited Senator Coburn’s own opening remarks to illuminate the distinction. Towards the conclusion of his statement, after expressing concern about the justices’ invocation of foreign authority, Senator Coburn explained that Aristotle defined law as “reason free from passion,” and endorsed that view. Are we to deduce from this remark that Aristotle was an American, or is it more plausible to think that our legal system shares certain general principles with its foreign counterparts, whether ancient or modern?