¹ Eg, V Jackson, Constitutional Engagement in a Transnational Era (OUP, New York, 2009); Jackson, V, ‘Transnational Discourse, Relational Authority, and the US Court: Gender Equality’ (2003) 37 Loy LA L Rev 271Google Scholar; C McCrudden, ‘Judicial Comparativism and Human Rights’ in E Örücü and D Nelken (eds), Comparative Law: A Handbook (Hart, Oxford, 2007) 371; McCrudden, C, ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Human Rights’ (2000) 20 Ox J Legal Stud 499CrossRefGoogle Scholar; A-M Slaughter, A New World Order (Princeton University Press, Princeton, 2004) 66–100; A-Slaughter, M, ‘A Typology of Transjudicial Communication’ (1994) 29 U Richmond L Rev 99, 124–125Google Scholar; Teitel, R, ‘Comparative Constitutional Law in a Global Age’ (2004) 117 Harv L Rev 2570CrossRefGoogle Scholar; Scott, C and Alston, P, ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney's Legacy and Grootboom's Promise’ (2000) 16 South African J Human Rts 206CrossRefGoogle Scholar; C L'Heureux-Dubé (formerly of the Supreme of Canada), Court, ‘The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court’ (1999) 34 Tulsa L J 15Google Scholar. (McCrudden's analysis is distinctive in its agnosticism on the question of whether current judicial ‘globalization’ is in fact a positive development for the protection of human rights). Globalist theory has begun to inspire a secondary literature; see eg, Habermas, J, ‘Interpreting the Fall of a Monument’ (2003) 4 German L J 701, 707–708Google Scholar (urging greater judicial and other reciprocity to advance cosmopolitanism); J Goldsworthy, ‘Introduction’ in Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (OUP, New York, 2006) 3, ‘We live in an era of “cosmopolitan constitutionalism” in which lawyers and judges increasingly look beyond their own borders and borrow ideas from other jurisdictions. The time is ripe for a comparative study of the methods by which constitutions have been interpreted.’

² Globalist theory takes as its starting point Patrick Glenn's view that persuasive authority is ‘authority which attracts adherence as opposed to obliging it.’ Glenn, P, ‘Persuasive Authority’ (1987) 32 McGill L J 261Google Scholar, 263. See Slaughter ibid (1994) 124–125; Jackson (2003) 287–288; and McCrudden (n 1) (2000) 503 (citing Glenn). Comparable views are expressed in Craig and Alston ibid 217; L'Heureux-Dubé ibid 16–17 and Teitel ibid 2593–2594. This understanding of persuasive authority is foreshadowed in both Hart and Dworkin's theories of law; HLA Hart, The Concept of Law (OUP, Oxford, 1961) 294, ‘Where [the judge] considers that no statute or other formal source of law determines the case before him, he may base his decision on e.g., a text of the Digest, or the writings of a French jurist… The legal system does not require him to use these sources, but… they are recognized as “good reasons” for decisions.’; R Dworkin, Law's Empire (Bellknap Press, Harvard University, Cambridge, 1986) 25, ‘The relaxed doctrine of precedent... demands only that a judge give some weight to past decisions on the same issue... This relaxed doctrine may embrace the past decisions not only of courts above him or at the same level in his jurisdiction but of courts in other states or countries.’

³ Lawrence v Texas 539 US 558 (2003) (concerning the individual's right to engage in consensual homosexual relations) and Roper v Simmons 543 US 551 (2005) (concerning the individual's right to escape cruel and unusual punishments for his crimes).

⁴ For a list of some of the many contributions, see Benvenisti, E, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 AJIL 241CrossRefGoogle Scholar, fn 1.

⁵ See eg, Reaffirming American Independence Resolution, HR Res 97, 109th Cong. § 2 (2005). Hostility toward the use of foreign law was similarly expressed at Elena Kagan's recent Supreme Court nomination hearing; see eg, Sen. J Kyl, ‘I am troubled by [Kagan's response] because it suggests that you could turn to foreign law to get good ideas.’ <http://www.c-span.org/Special/Supreme-Court-Kagan-Senate-Confirmation-Hearing-34896.aspx >(17.50 mins).

Legal prohibitions of comparison are not unprecedented; see Watson, A, ‘Legal Change: Sources of Law and Legal Culture (1983) 131 U Pa L Rev 1121Google Scholar, n 109 (citing the Leggi e constituzioni of 1770 of Sardinia and Piedmont which banned recourse to the law of a neighbouring place.) Neither, incidentally, is executive enthusiasm for judicial comparison; ‘In France the stamp of official recognition to the value of comparative law was first accorded as far back as 1876 when a committee attached to the French Ministry of Justice was created, whose main purpose was to inform judges about foreign law.’ Kamba, WJ, ‘Comparative Law: A Theoretical Framework’ (1974) 23 ICLQ 485CrossRefGoogle Scholar, 498.

⁶ Eg, Markesinis, B and Fedtke, J, ‘The Judge as Comparatist’ (2005) 80 Tulane L R 11Google Scholar; (Australian Justice) M Kirby, ‘International Law—The Impact of National Constitutions’ (March 30 2005) American Society of International Law Grotius Lecture, delivered in Washington, DC. Full transcript of the lecture available at http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_30mar05.html accessed on August 9, 2010; (South African Justice) Kentridge, S, ‘Comparative Law in Constitutional Adjudication: The South African Experience’ 80 (2005) Tulane L R 245Google Scholar; (South African Justice) Ackermann, L, ‘Constitutional Comparativism in South Africa: A Response to Sir Basil Markesinis and Jörg Fedtke’ (2005) 80 Tulane L Rev 169Google Scholar; Lords Bingham and Hoffman, ‘Unreliable Evidence’ BBC Radio 4 (30 May 2006); (Irish Chief Justice) Murray, J, “New England School of Law Commencement Address 2006–07' (2007) 41 New England Law Review 247Google Scholar.

⁷ Jackson, V, ‘Constitutional Comparisons: Convergence, Resistance, Engagement’ (2006) 119 Harv L Rev 109Google Scholar, 114. Jackson refers to Sujit Choudhry's elaboration of a concept of dialogical constitutional comparison Choudhry, in, ‘Globalization in search of Justification: Toward a Theory of Comparative Constitutional Interpretation’ (1999) 74 Ind L J 819Google Scholar. For globalists, the upshot of the use of comparative material as ‘a means to stimulate constitutional self-reflection’ (Choudhry, 892) is that it has ‘persuasive’ value—the potential to persuade both the judge and his audience of the appropriateness of a particular solution.

⁸ We include the United States, India, Israel and South Africa as common law jurisdictions.

⁹ McCrudden (n 1) (2007) 371, 379.

¹⁰ See eg, V Jackson (2003) 302–318; Tushnet, M, ‘When Is Knowing Less Better Than Knowing More? Unpacking the Controversy over Supreme Court Reference to Non-US Law’ 90 Minn L Rev 1275 (2006), 1284–86Google Scholar; M Moran, ‘Authority, Influence, and Persuasion: Baker, Charter Values and the Puzzle of Method’ in D Dyzenhaus (ed), The Unity of Public Law (Hart, Oxford and Portland, 2004) 389.

¹¹ For speculation at odds with McCrudden's distinction, see eg, Bahdi, R, ‘Globalization of Judgment: Transjudicialism and the Five Faces of International Law in Domestic Courts’ (2002) 34 Geo Wash Int'l L Rev 555Google Scholar,588, ‘The failure to distinguish between international and comparative law [apex courts’ occasional bundling together of international and comparative sources] stems from the fact that judges look to these sources for their persuasive value and not out of a misguided conviction that the norms in question are binding'; Knop, K, ‘Here and There: International Law in Domestic Courts’ (2000) 32 NYU J Int'l L & Pol 501Google Scholar, 525 ‘Whatever its limitations, a key insight of the transjudicial model of international law in domestic courts is the blurring of international law into comparative law.’

¹² Compare Posner, E and Sunstein, C, ‘The Law of Other States’ (2006) 59 Stan L Rev 131Google Scholar fn 30.

¹³ Unusually, art 39 of the 1996 South African Constitution states that, ‘When interpreting the Bill of Rights, a court, tribunal or forum… may consider foreign law.’ Having been given such permission, however, a judge must decide for herself that the resolution of a particular case ought to involve consideration of foreign law.

¹⁴ This is not to say, of course, that the ECHR would necessarily find itself more frequently cited than all foreign jurisdictions. As Bruce Carolan notes, in the Irish case, the US Supreme Court is more often the focus; ‘The Search for Coherence in the Use of Foreign Court Judgments by the Supreme Court of Ireland’ (2004) 12 Tulsa J Comp & Int'l L 123. The point is just that, all things being equal, the fact that, ‘Ireland is not a party to and played no role in the adoption of foreign national law’ makes the ‘constitutional argument’ for its citation relatively less compelling than that regarding the ECHR; Carolan 129.

¹⁵ Recall the European Court's attention to attributing such qualities to the EC Treaty in its foundational Van Gend en Loos (26/1962) decision, ‘The objective of the EEC Treaty, which is to establish a common market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states… the task assigned to the Court of Justice under art 177, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals.’

¹⁶ For discussion of this distinction, see General Report of the XIVth International Congress of Comparative Law in U Drobnig and S van Erp (eds), The Use of Comparative Law by Courts (Wolters Kluwer, Leiden, 1999) 16 (distinguishing between the ‘voluntariness’ of judicial recourse to non-domestic material in the interpretation of international agreements for which uniformity is desirable and recourse to such material where uniformity is not a concern).

¹⁷ See eg, the US Military Commissions Act (2006), s 6(a)(2) of which states that, when interpreting the country's obligations under the Geneva Convention with respect to armed conflict not of an international character, ‘[n]o foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States’.

¹⁸ International refugee law seems an exception; it both concerns the rights of individuals and holds evident coordination incentives. Hélène Lambert has recently published a citation study of British and French judiciaries' use of foreign law in this field; Lambert, , ‘Transnational Judicial Dialogue, Harmonization and the Common European Asylum System’ (2009) 58 ICLQ 519CrossRefGoogle Scholar (finding much more frequent reference to the law of other nations by British Courts).

¹⁹ The judicial survey seems to have found its initial advocate in Becker, T, ‘Surveys and Judiciaries, or Who's Afraid of the Purple Curtain?’ (1966) 1 L & Soc Rev 133CrossRefGoogle Scholar, 143, ‘Judges are reasonable, well-meaning men. The Inquiry is reasonable and well-meant. These great assets should be exploited in research on the judicial process.’

²⁰ Epstein, L and King, G, ‘The Rules of Inference’ (2002) 69 U Chi L Rev 1CrossRefGoogle Scholar, 93. See also Segal, J and Spaeth, H, ‘The Authors Respond’ (1994) 4 Law and Courts 3, 16Google Scholar, ‘Self-deception, social desirability effects, and flatout lying would mar any such analysis. Judicial nominees who can state under oath before the entire nation that they had never thought about Roe v Wade can hardly be fruitful candidates for traditional survey measures.’ There is a neat parallel between the dismissal of what judges say they do by law-and-courts scholars and by Ronald Dworkin; see below, ‘Implications for the Theory of Legal Reasoning?’.

²¹ See Epstein and King ibid 93–94, criticizing N paper, Miller's, ‘An Empirical Study of Forum Choices in Removal Cases under Diversity and Federal Question Jurisdiction’ (1992) 41 Am U L Rev 369Google Scholar as suffering ‘from the problem that attorneys may have incentives to hide their sincere preferences from a researcher they know will make policy recommendations about the need for concurrent jurisdiction.’

²² Nisbett, R and Wilson, T, ‘Telling More than We Know: Verbal Reports of Mental Processes’ (1977) 84 Psych Rev 231CrossRefGoogle Scholar and Rahn, W, Krosnick, J and Breuning, M, ‘Rationalization and Derivation Processes in Survey Studies of Political Candidate Evaluation’ (1994) 38 Am J Polit Sci 582CrossRefGoogle Scholar.

²³ Per Nisbett and Wilson ibid248–249. Note the ambivalence in Nisbett and Wilson's commitment to the idea that the causes of our judgments are not identified by direct introspective awareness; ‘The present analysis corresponds to common sense in that it allows that we will often be right about the causes of our judgments and behavior’; 253. They give an example of someone correctly identifying the reason for his judgment that he dislikes a stranger who struck him. But if we have reason to think that people report common sense examples like this correctly, it must be that their folk theories of what causes judgment Y reliably predict Y. Since the holders of such theories adopted them thinking them reliable, they are not incidentally correct in believing they will give judgment Y on the occurrence of X. Significantly, the ambivalence is similarly apparent in the authors' explanation of the correspondence between how we think we will reason professionally and how we in fact reason professionally; 254.

²⁴ Rahn et al (n 22) 584–585.

²⁵ How can we tell that distinctively legal considerations have not factored in the judge's finalizing of his recorded preference (judicial vote or ante-appointment association) or that a political sponsor's policy preferences are not a co-incidental beneficiary of a nominee's legal philosophy? See eg, Segal, J and Cover, A, ‘Ideological Values and the Votes of US Supreme Court Justices’ (1989) 83 Am Pol Sci Rev 557CrossRefGoogle Scholar (deriving ideology from the coding of newspaper editorials about each judicial nominee); Law, D & Fischman, J, ‘What Is Judicial Ideology and How Should We Measure It?’ (2008) 29 Washington U J L & Pol'y 1, 26Google Scholar, ‘if judges decide cases simply by applying legal principles in a neutral way, there is no reason why party of appoint[er] should correlate with judicial outcomes.’ (emphasis added); Giles, M et al, ‘Measuring the Preferences of Federal Judges: Alternatives to Party of the Appointing President’ (2002) 61 Political Research Quarterly 1Google Scholar (based on coding the ideology of a nominee's political sponsors); and Bailey, M and Maltzman, F, ‘Does Legal Doctrine Matter? Unpacking Law and Policy Preferences on the US Supreme Court’ (2008) 102 Am Pol Sci Rev 369CrossRefGoogle Scholar (taking it as settled that a readiness to overrule a precedent or strike down a statute derives from non-legal reasoning). cf Shapiro, C, ‘The Context of Ideology: Law, Politics, and Empirical Legal Scholarship’ (2010) 75 Missouri L Rev 79Google Scholar, 128, ‘[R]ather than trying to identify a decision's liberalness or conservativeness, empirical scholars might instead focus on the relative importance or salience of ideology—to the Justices themselves—in different cases.’ Disinterest in judicial introspection renders empirical scholarship vulnerable to Dworkinian critiques; see eg. Gillman, H, ‘What's Law Got to Do with It? Judicial Behavioralists Test the “Legal Model” of Judicial Decision Making’ (2001) 26 Law & Social Inquiry 465CrossRefGoogle Scholar (reviewing H Spaeth and J Segal, Majority Rule or Minority Will: Adherence to Precedent on the US Supreme Court (CUP, Cambridge, 1999)).

²⁶ By the time of the survey, Lord Saville, appointed a Law Lord in 1997, had spent almost seven years away from ordinary judicial business in his role as Chairman of Northern Ireland's second Bloody Sunday Inquiry. He reported earlier this year. The functions of the Judicial Committees of the House of Lords and Privy Council were transferred to the United Kingdom Supreme Court under the Constitutional Reform Act 2005. The new Court started work in October 2009.

²⁷ Namely, Ghana, Malta and Papua New Guinea. The judges of the Judiciary Committee of the House of Lords (now established as the ‘Supreme Court’ under the Constitutional Reform Act 2005) conduct the business of the Judicial Committee of the Privy Council, which is responsible for hearing appeals from the courts of a number of Commonwealth countries, to wit, Antigua and Barbuda, Grenada, Bahamas, Jamaica, St. Christopher and Nevis, Belize, Saint Lucia, Cook Islands and Niue, Saint Vincent and the Grenadines, Trinidad and Tobago, Dominica, Kiribati, Mauritius and Tuvalu. No appeal may be made from Scotland's highest court to the Judicial Committee of the House of Lords in a criminal matter. However, under the UK's Scotland [Devolution] Act 1998, the compliance with ECHR rights—as defined in the UK's Human Rights Act 1998—of all Scottish legislation and criminal procedure is ultimately appealable to the Privy Council. In addition to its responsibility for interpreting the Treaties of the Caribbean Communities, the Caribbean Court of Justice (inaugurated April 2005) is the general final appellate court for Barbados and Guyana; it is intended to eventually assume that responsibility for a number of the Caribbean nations currently subject to the jurisdiction of the Privy Council.

²⁸ Available via a persistent URL at <http://dx.doi.org/10.3886/ICPSR29121>. The questionnaire's unstructured element produced a wealth of responses from participants, ranging from substantive elaborations, challenges to the questions posed, commentary on the survey as a whole, and the occasional wry comment. Systematic mining of this data has not been attempted; others are encouraged to do so.

²⁹ Though, as noted, the rate of response from contacted judges was marginally higher than that overall.

³⁰ See McCrudden (n 1) (2000) 517, ‘it is likely that there is as great a variation within national courts, as between national courts on the issue [of the use of foreign judgments]; different judges appear to adopt significantly different citation practices.’ (citing a citation study of the Israeli Supreme Court 1948–1994, Schar, Y, Haris, R and Gross, M, ‘The Character of References in the Supreme Court—A Quantitative Analysis’ 27 Mishpatim 1Google Scholar. See similarly Shannon Ishiyama Smithey's comparative study of the attitudes of South African and Canadian judges to the citation of foreign cases in rights decisions; ‘A Tool, Not a Master: The Use of Foreign Case Law in Canada and South Africa’ (2001) 34 Comparative Political Studies 1188 (concluding at 1207 that ‘[i]t would appear that the qualities they share, including their common law heritage and the adoption of constitutional provisions protecting civil liberties, were more important than their differences.’); and Bijon Roy's 2004 study of the Canadian Supreme Court, ‘An Empirical Survey of Foreign Jurisprudence and International Instruments in Charter Litigation’ 62 U Toronto Fac L Rev 99, 125 (reporting wide variations in its members' comparative referencing). Note also empirical work on the US Supreme Court challenging the common conjecture that the youth of a constitution coincides with greater judicial openness to foreign law; Calabresi, S and Zimdahl, SD, ‘The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision’ (2005) 47 Wm & Mary L Rev 743Google Scholar, 755, ‘[T]he [US Supreme] Court has cited foreign law with much more frequency in far more important constitutional cases as the Court has grown older and has increased significantly its use of such sources in striking down legislation only since Trop v Dulles in 1958.’

³¹ See Lempert, R, ‘The Significance of Statistical Significance’ (2009) 34 Law & Social Inquiry 225CrossRefGoogle Scholar.

³² ‘Judge’ denotes a member of an apex court of a common law democracy.

³³ Of the 42 answering judges, 63 per cent responded ‘yes’, with a further 30 per cent indicating that they felt such a sense of esteem ‘to some extent’. Those adding distinctive comments to their answers split between saying that their answer depended on the jurisdiction (4) or judge (3) in question.

³⁴ Question 3B.

³⁵ We are not aware of any documentary citation study that has comprehensively investigated an apex court's reported citations of foreign law. Our survey's citation frequency questions (1 and 6) would certainly have been better served by documentary investigation. Should a future team carry out such work, it would permit them to draw more precise correlations with the other questions posed.

³⁶ Just 26 per cent of frequent citers of foreign law indicated they did not use it frequently in justifying their conclusions on rights.

³⁷ Respondent identity codes: 132, 736, 322, 133, 909, 690, 455, 924.

³⁸ ibid: 369, 132, 909, 783, 764, 342, 747.

³⁹ ibid: 369, 372, 268, 455.

⁴⁰ N Persily, ‘Introduction’ in Persily, J Citrin, P Egan (eds), Public Opinion and Constitutional Controversy (OUP, Oxford, 2008) 3, 8 (summarizing empirical work as generally indicating that ‘the effect of public opinion on Court decisions exists as a complex process in which public moods get incorporated through the appointment of new justices or through responses by other branches of government.’)

⁴¹ ‘We're a guild, just like physicians or military people are guilds’. US Justice Anthony Kennedy speaking to Jeffrey Toobin, ‘Swing Shift’ The New Yorker (September 12, 2005).

⁴² Lawrence Baum makes a prima facie case that, at times, it may well be; Judges and their Audiences (Princeton University Press, Princeton, 2006).

⁴³ This is consistent with evidence of the impact of peer respect on US Circuit Court decision-making; D Klein, Making Law in the United States Courts of Appeals (CUP, Cambridge, 2002) 95 (24 interviewees from the total Circuit bench).

⁴⁴ Compare Epstein, L, Knight, J and Martin, A, ‘Review Essay: The Supreme Court as Strategic National Policy-Maker’ (2001) 50 Emory L J 583Google Scholar (emphasizing the legislature as audience).

⁴⁵ See eg, Slaughter (n 1) (1994) 133–134 ‘[T]he creation or generation of a legal community through transjudicial communication could itself help define and strengthen common political and economic values in the states concerned.’; F Schauer, ‘The Politics and Incentives of Legal Transplantation’ CID Working Paper No. 44 (2000) 18 <http://www.cid.harvard.edu/cidwp/pdf/044.pdf>‘Hypothesis 3: The political reputation of the donor country… is a causal factor in determining the degree of reception in the recipient country of the donor country's legal ideas, norms, and institutions, even holding constant the host country's evaluation of the intrinsic legal worth of those ideas, norms, and institutions.’

⁴⁶ Question 2: If you use law from other national jurisdictions in relation to rights is it primarily as a source of

• •

  • • Different methods of legal reasoning OR

• •

  • • Information on moral attitudes OR

• •

  • • Information on the consequences of a particular decision

• •

  • • Other

A solitary judge specified ‘moral attitudes.’ Similarly, only 10 judges included ‘moral viewpoints prevailing elsewhere’ as something about which international judicial conference can be a helpful source of information (Question 5A).

⁴⁷ See Question 9, discussed below.

⁴⁸ ibid.

⁴⁹ See (Justice) Michael Kirby of Australia, ‘It follows that engaging, in the analysis of analogous points, with the opinions of judges and other writers in many countries, helps ensure national courts against intellectual isolation and, consequentially, a diminished influence of their own in the world of ideas.’ Kirby (n 6).

⁵⁰ See Slaughter (n 1) (2004) 101 (Observing of inter-supreme court citation that ‘the psychological impact is considerable, leading judges to feel part of a larger judicial community…’); Bahdi (2002) 595, ‘Increasingly, judges want to belong not simply to a domestic community of judges but also to an international juridical community. Greater interaction between judges in both real and virtual space both reflects and promotes this judicial desire to belong to a transnational community of their peers.’; Young (2005) 157, ‘Even among those skeptical of the merits of ‘indirect normative influence’ its influence is supposed: Interactions between legal elites on a global scale make it increasingly likely that the views of lawyers and jurists abroad will form part of the reference set for our own Justices as they formulate their own moral views...'

⁵¹ See ‘Audience Impact’ above.

⁵² Questions 4 and 3B (χ2=20.45, df=9, p<.05). Question 4 asked: Which tool do you consider most useful for identifying the protection to be given to rights asserted in your court?

• •

  • • The domestic constitution

• •

  • • International human rights law

• •

  • • Moral thinking on human nature

• •

  • • Religion

⁵³ This casts some doubt on the hypothesis that, since 2000, ‘the driving force behind reliance on foreign law’ has been the felt need ‘to forge a united judicial front… to protect or even reclaim the domestic political space that is increasingly restricted by the economic forces of globalization and the delegation of authority to international institutions...’. Benvenisti (n 4) 242–244.

⁵⁴ See (n 2) above. Similarly, A Hamann and H Fabri, Ruiz, ‘Transnational Networks and Constitutionalism’ (2008) 6 Int'l J Con L 481Google Scholar, 498, ‘It seems that this phenomenon of “constitutional cross-fertilization” where foreign approaches are… acknowledged and discussed, progressively reveals the emergence of a global constitutional jurisprudence.’; Dixon, R, ‘A Democratic Theory of Constitution Comparison’ (2008) 56 Am J Comp L 947CrossRefGoogle Scholar, 992, ‘a dynamic-reflective theory [on the benefits of comparison in helping shed light on the evolution of constitutional understandings] … has the advantage of speaking directly to the recent practice by members of the [US Supreme] Court in the particular jurisprudential contexts in which it has arisen.’; Waldron, J, ‘Foreign Law and the Modern Ius Gentium’ (2005) 119 Harv L Rev 129Google Scholar, 146, ‘for those who see legal decision as a matter of reasoning one's way through problems, my account [of it as a matter of patient analysis, the untangling of issues, the ascertaining of just resolutions, and the learning and cooperation that is characteristic of a scientific approach] may help to explain why courts turn naturally to foreign law.’; Carozza, PG, ‘“My Friend is a Stranger”: The Death Penalty and the Global Ius Commune of Human Rights’ (2003) 81 Tex L Rev 1031, 1081–1082Google Scholar (that judicial comparison is ‘first and foremost, the working out of the practical implications, in differing concrete contexts, of human dignity for the rights to life and physical integrity’.).

⁵⁵ Per Question 8; ‘Do you make indirect use of your legal knowledge of other countries in your judgments on rights?’ Of the 40 judges expressing an opinion, twenty three answered affirmatively. Indirect usage is predicted by the globalist school; eg, Slaughter (n 1) (1994) 118; Resnik, J, ‘Law as Affiliation: “Foreign” law, Democratic Federalism, and the Sovereigntism of the Nation-state’ (2008) 6 Int'l J Con L 33Google Scholar, 46 (judges are learning from each other through ‘silent dialogues’.). Note that respondents who frequently refer to foreign law in their judgments are more likely to consider themselves indirect users of such knowledge.

⁵⁶ We found a significant correlation between ‘nationalist’ responses to Question 15 and negative attitudes towards ‘living constitutionalism’ (Question 18); (sr=2.7, χ2=26.4, df=12, p<05). See (US Justice) Scalia, A, ‘Foreign Legal Authority in the Federal Courts’ (2004) 98 Am Society Int'l L Proc 305Google Scholar, 308, ‘One who believes it falls to the courts to update the list of rights guaranteed by the Constitution tends to be one who believes in a Platonic right and wrong in these matters... [and will thus] consider the views of all intelligent segments of mankind.’

⁵⁷ See eg, Collins, H, ‘Methods and Aims of Comparative Contract Law’ (1991) 11 OJLS 397CrossRefGoogle Scholar (illustrating the potential difficulties for legal comparison caused by the potential interdependence of different elements of a foreign legal system).

⁵⁸ Compare Amann, DA, ‘“Raise the Flag and Let it Talk”: On the Use of External Norms in Constitutional Decision Making’ (2004) 2 Int'l J Const L 597Google Scholar, 604, ‘The dearth of methodological guideposts opens courts to the criticism that foreign practice does not really aid deliberation but merely cloaks otherwise unsupported policy decisions in a guise of constitutional legitimacy.’

⁵⁹ Eg, Manfredi, C, ‘The Use of United States Decisions by the Supreme Court of Canada under the Charter of Rights and Freedoms’ (1990) 23 Canadian J Pol Sci 499, 517–518Google Scholar, ‘The qualitative impact of these [US] citations has also been significant... judicial supremacy of the type reflected in the American jurisprudence used by the post-Charter Court potentially denies Canadians their most basic freedom and right of self-governance.’; Anderson, K, ‘Squaring the Circle? Reconciling Sovereignty and Global Governance through Global Government Networks’ (2005) 118 Harv L Rev 255Google Scholar, 1310, ‘[I]f the Justices and the federal courts were to move along that road [introduce the persuasive authority of foreign precedent], then it would seem to me quite appropriate for Congress to [strip]... the federal courts of jurisdiction over certain matters, thereby preserving the balance of democratic governance.’

⁶⁰ See Slaughter (n 1) (1994) 135, ‘[C]ourts bolstered by communication with other national and supranational courts will be bolstered in their efforts to make their own voices heard.’

⁶¹ ‘The Law of Other States’ (2006) 59 Stan L Rev 131 , 179. Sunstein has since offered a more circumspect analysis; see CR Sunstein, A Constitution of Many Minds (Princeton University Press, Princeton, 2009) 209.

⁶² Perhaps the most forceful examples of the latter are those of Justice Scalia, ‘To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.’ Roper v Simmons, 543 U.S. 551 (2005) (dissenting). Citing Justice Livingstone's dissent in United States v Smith 18 US (5 Wheat) 153, Calabresi and Zimdahl (n 30) report that ‘Justice Scalia's modern lament finds its echo from as long ago as 1820 in the US Reports’; 754.

⁶³ (US Circuit Judge) Posner, Richard, ‘A Political Court’ (2004) 119 Harv L Rev 31Google Scholar, 86.

⁶⁴ McCrudden (n 1) (2000) 517.

⁶⁵ See eg, the authors cited at (n 25) and (n 78).

⁶⁶ A Paterson, The Law Lords (University of Toronto Press, Toronto, 1982) 19.

⁶⁷ Roy (2004) 129.

⁶⁸ See ibid 133–334 (the closest example noted is R v Fliss [2002] 1 SCR 535 paras 47–48 in which the Court stated that it ‘took a different view’ from the foreign position.

⁶⁹ Roy's figures are consistent with Allan, J et al. , ‘The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?’ (2007) 11 Otago L Rev 1Google Scholar (finding that, of the 75 major reported cases in which the New Zealand apex court referred to overseas rights-based decisions from 1990 to 2006, ‘28 of them include a reference to an overseas case that did not support the New Zealand court's eventual conclusion… [a]nd that figure overstates things to the extent that in some cases only one of the multiple [concurring] judgments [relying on foreign law] made such a reference’; 8).

⁷⁰ Tripathi, P, ‘Foreign Precedents and Constitutional Law’ (1957) 57 Colum L Rev 319CrossRefGoogle Scholar, 346.

⁷¹ ‘Pragmatism, Right Answers, and True Banality’ in M Brint and W Weaver, Pragmatism in Law and Society (Westview Press, 1991) 359, 365 (emphasis added).

⁷² Dworkin (n 2) 90, ‘The old plain-fact picture of Chapter 1 told us not to take the opinions judges write in hard cases at face value; the new picture [of jurisprudence] has the signal merit of allowing us once again to believe what our judges say.’ (emphasis added); See also D Brink, ‘Legal Interpretation, Objectivity, and Morality’ in B Leiter (ed), Objectivity in Law and Morals (CUP, Cambridge, 2001) 12, 48 (noting, in defence of Dworkin's theory, that ‘interpreters typically act as if hard cases have a best [legal] interpretation’). Conversely, ‘Dworkin's most powerful descriptive criticisms of conventionalism [legal positivism] focus on the phenomenology of judging in hard cases.’ Kress, K, ‘The Interpretive Turn’ (1989) 97 Ethics 834CrossRefGoogle Scholar, 859. Indeed, in a noted positivist response to Dworkin's critique, Joseph Raz appears to concede that judges believe that their ‘decisions always represent the state of the law at a time just prior to their decision’. Raz, ‘Two Views of the Nature of the Theory of Law: A Partial Comparison’ in J Coleman (ed) Hart's Postscript (OUP, New York, 2001) 1, 34 n 46.

⁷³ See the discussion in Paterson (n 66) 2, 194–195 citing Dworkin; and Dworkin (n 2) 10, ‘The plain-fact view [that when judges appear to be disagreeing in a theoretical way as to what the law is, they are really disagreeing as to what it should be]… is rejected in the accounts thoughtful working lawyers and judges give of their work. They may endorse the plain-fact picture as a piece of formal jurisprudence when asked in properly grave tones what law is. But in less guarded moments they tell a different and more romantic story.’ The concern is echoed by Stephen Guest; Guest, ‘Objectivity and Value’ in M Freeman and R Harrison (eds), Law and Philosophy (OUP, Oxford, 2007) 76, 90, ‘Are the highest appellate courts a... place where the different statements of law are not correctable... It seems unlikely, not least because of the way lawyers, and the courts themselves, unphilosophically speak.’ (emphasis added).

⁷⁴ The sort of distinction Dworkin associates with the use of surveys is the converse of that associated by authors of prominent ‘Realist’ explanations of judicial behaviour; see (n 20).

⁷⁵ See text accompanying (n 66–69).

⁷⁶ Contrast Dworkin, ‘[T]here is no positive evidence of any kind that when... judges seem to be disagreeing about the law they are really keeping their fingers crossed…’ Dworkin (n 72) 39 and Leiter, Brian, ‘According to positivists… theoretical [legal] disagreements are disingenuous, in the sense that the parties… are trying to say, as Dworkin puts it, “what it should be” not “what the law is.” ’ Leiter, ‘Explaining Theoretical Disagreement’ (2009) 76 U Chi L Rev 1215Google Scholar, 1224.

⁷⁷ See CL Ostberg al, et, ‘Attitudes, Precedents and Cultural Change: Explaining the Citations of Foreign Precedents by the Supreme Court of Canada’ (2001) 34 Canadian J Pol Sci 377, 396, ‘Citations to other than Canadian precedents grow as the number of concurring or dissenting opinions in a given case escalates.’ See similarly, Smithey (n 30) 1200–1202Google Scholar (South Africa and Canada); Calabresi and Zimdahl (n 30) 755, ‘[T]he [US] Court has tended to cite foreign law in some of [what the authors regard as] its most problematic opinions…’

⁷⁸ There is empirical evidence of legal doctrine playing a causal role in US Supreme Court decision-making, see eg, H Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Duke University Press, Chapel Hill, 1993); and Richards, M and Kritzer, H, ‘Jurisprudential Regimes in Supreme Court Decision Making’ (2002) 96 Am Pol Sci Rev 305CrossRefGoogle Scholar.

⁷⁹ See eg Paterson (n 66).

⁸⁰ Charles Epp argues, plausibly, for the importance of a support infrastructure of publicly minded lawyers and grassroots organisations campaigning to push ‘the rights agenda’; C Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (University of Chicago Press, Chicago, 1998).