The Law of the Land
| Date | 01 January 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12105 |
| Published date | 01 January 2015 |
The Law of the Land
Neil Duxbury*
This article considers the status of foreign precedents in national courts. It examines possible
reasons for courts referring to them and concludes that, absent some incorporating convention,
judges cannot ever be said to have an obligation to refer to them. But it also shows that there is
nothing unprincipled about national courts choosing to treat foreign precedents as persuasive
authority, notwithstanding that there are some good reasons, especially in the context of consti-
tutional adjudication, for cautioning against this. It is also suggested that no satisfactory argument
can be adduced to support the proposition that a national court must never rely on foreign
precedent as the sole reason for modifying the indigenous common law – though it seems very
unlikely that judges would ever need (still less want) to rely on foreign precedent in this way.
INTRODUCTION
Imagine you are a land lawyer – perhaps one who has turned to this article
because of its title and who is about to be disappointed – and I ask you: ‘what
is the law concerning collateral advantages for mortgagees?’ Depending on
context, and who you are, it might be that you can straightforwardly infer which
law it is that I am asking about, much as you are confident which time zone I
have in mind when I ask you for the time. But it might not be so straightforward.
‘There are some common law rulings on collateral advantages,’ you might
answer, ‘and there are EU competition law rules as well; and I suppose there
must be different rules again in other jurisdictions. It depends what you have in
mind.’ Faced with the stark question, ‘what are the legal rules on X?’ sometimes
one might sensibly reply that it is important to be more specific because the legal
rules on Xaren’t the same the world over. Behind that reply rests a more general
point: laws belong. Rather than simply being out there, forming that proverbial
omnipresence in the sky, legal rules exist and apply within legal systems; they
provide reasons for action which individuals somewhere – not everywhere –
would do better to comply with instead of following whatever personal reasons
they would apply when acting.1
Some laws are, of course, international laws. But when citizens of national
jurisdiction Aare subject to, or able to take advantage of, the laws of national or
international jurisdiction B, it is because jurisdiction Ahas chosen to incorporate
(as either directly applicable in the domestic courts or applicable once translated
into national legislation) some or all of the content of jurisdiction Binto its own
*Law Department, London School of Economics.
1 See J. Raz, The Concept of a Legal System: An Introduction to the Theory of Legal System (Oxford:
Clarendon Press, 2nd ed, 1980) 195; The Authority of Law: Essays on Law and Morality (Oxford:
OUP, 2nd ed, 2009) 117. Throughout this study, references to an agent’s action should be taken
to encompass inaction as well.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(1) MLR 26–54
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
system. Absent any such incorporation, citizens of jurisdiction Acan be confi-
dent – leaving aside the controversial question of whether state actors within
jurisdiction Ahave an obligation to comply with a customary international norm
if the jurisdiction rejects its authority – that laws which form no part of the
jurisdiction do not regulate what they do in that jurisdiction. People do not have
to defer to those judgments of law-making and law-applying authorities which
have no role in the sovereign jurisdictions to which they themselves are subject.
This last observation holds good for the people within a jurisdiction who are
responsible for making and applying the law just as it does for people within the
jurisdiction generally: laws which are genuinely foreign2do not regulate actions
taken exclusively within their own jurisdiction, either as private citizens or as
legal officials. Yet some of these officials might take an interest in particular
foreign laws. Rarely if ever, Montesquieu thought, will the laws of one nation
be suitable for another.3But there is nothing fanciful about the notion that
legislators might look abroad for guidance on how, or whether, to devise new
laws:4legislative proposals to alter the status of an activity under the criminal law,
for example, often come with accounts of other jurisdictions’ experiences after
making comparable changes.5If a legislature is sovereign, however, it could
never, when it looks to a foreign jurisdiction, be doing anything other than
treating the laws of that jurisdiction as information. Even if a national legislature
were to determine that a problem on which it is about to legislate has been
handled adroitly by another legislature, and that it should do exactly what that
legislature has done, it would still have to enact its own version of the foreign
legislature’s law.
Just as legislators might consider how a matter on which there is an impetus
to legislate has been handled by other legal systems, judges might acknowledge
that a foreign precedent, or a collection of foreign precedents, casts light on a
legal problem in a way that domestic precedent does not. But whereas, for
legislators, foreign law is never anything more than information, some judges
understand foreign precedents to have a more elevated status. It is not unknown
2 When I refer to genuinely foreign laws or (most commonly) precedents, I mean foreign laws or
precedents which cannot be said to have been incorporated into a particular national jurisdiction.
I forgo adding ‘genuinely’ when it is obvious that I could only be referring to unincorporated
foreign laws.
3 Montesquieu, The Spirit of the Laws [1748] A. M. Cohler et al (trans & ed) (Cambridge: CUP,
1989) 8.
4 See, eg, the ‘Prepared Remarks of Attorney General Alberto R. Gonzales at the University of
Chicago Law School’ (9 November 2005) at http://www.justice.gov/archive/ag/speeches/
2005/ag_speech_0511092.html (last accessed 3 April 2014) (‘It is . . . entirely appropriate for our
elected representatives in the Congress or the State legislatures to consider how lawmakers in other
countries have approached problems when our representatives write the laws of the United
States’). Gonzales offered the observation as a preliminary to his main point: that judges err when
they treat ‘foreign legal judgments’ as ‘somehow relevant in defining the terms and limits of our
Constitution’ (ibid); similarly Foster vFlorida 537 US 990, 990 n (2002) (Thomas J, concurring).
5 For example, since Sweden enacted legislation prohibiting the purchase of sexual services (the
legislation, introduced in 1999, was amended in 2005), various national legislatures have passed
similar laws, citing the Swedish legislation as their model: see The Ban Against the Purchase of Sexual
Services: An Evaluation, 1999–2008 government report SOU 2010/49 M. L. Key (trans) (Stock-
holm: Swedish Institute, 2010) 38–41.
Neil Duxbury
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. 27(2015) 78(1) MLR 26–54
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