Does the use of comparative law compromise the rule of law?
Two Supreme Court Justices - one from the US, one from the UK - addressed an audience of 300 on 14 June at an event organised by the New York City Bar Association, the Bingham Centre and the Foreign Policy Association with sponsorship from LexisNexis.
In a discussion moderated by the Bingham Centre's founding Director Sir Jeffrey Jowell QC, Lord Jonathan Sumption and Associate Justice Stephen Breyer examined the case for, and resistance to, courts' use of foreign sources of law. Both were in strong agreement on some core points: turning to the experience of courts in other countries is important because it helps courts find the best answers to problems. The relevance of foreign sources will vary with the circumstances and should not be divorced from context but, it was said, it should be unremarkable to use them as relevant, non-binding authority.
Fielding questions from the floor they covered a wide range of international and comparative issues, from the death penalty (where Lord Sumption noted that the Privy Council's jurisprudence was influential in many countries), to the rule of law in China, to Guantanamo Bay cases, to the teaching of comparative law (where Justice Breyer argued that comparative law should not be merely a single distinct course but should be integrated throughout the law school curriculum).
Justice Breyer whose recent book, The Court and the World: American Law and the New Global Realities, examines some of these issues, argued that American resistance to foreign law was misplaced and that "if we do not participate in comparative law it will compromise our basic American values." The US, he argued, began as an experiment and that experiment was continuing, and that it now requires the US to look beyond its own shores to the rule of law internationally.
To view a recording of the panel discussion, click here..