Comparative Law Is a Matter of Life and Death

We are very open to comparative law.
Chief Justice Beverley McLachlin

Given the extent to which the Supreme Court of Canada routinely cites comparative law, and all law students are taught as much English law in first year as Canadian, it is fascinating the passions aroused by comparative law elsewhere.

We’ve discussed this before, but a piece in the Post on Friday and in yesterday’s Times, really brought it home.

Death threats have been made to two justices of the USSC, because they’ve stated publicly that it may, on some occasions, be helpful for the Court to look at law from outside the United StatesThis proposition is anodyne in Canada but heresy to a significant part of the House.. reports that in a chat room, one writer gave the commandoes their first assignment – and the targets were Supreme Court Justices.

“Okay commandoes, here is your first patriotic assignment. This is a huge threat to our Republic and constitutional freedom … If you are what you say you are, and NOT armchair patriots, then those two justices [Ginsburg and O’Connor] will not live another week.”

The gauntlet was apparently thrown down by Justice Ruth Bader Ginsburg, in “A decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication“, delivered to the American Society for International Law last April Fool’s Day. She returned to this theme in Johannesburg on February 7, 2006 at a Lecture at the Constitutional Court.

She started by noting that

South Africa’s 1996 Constitution famously provides in Section 39: “When interpreting the Bill of Rights, a court . . . must consider international law; and may consider foreign law.”

This has meant that one of the chief objectives of the Library at the Constitutional Court has been focussed on building up the comparative law collection. It is also interesting that they have agreed to staff the court with some foreign law clerks, to supplement South African law graduatesIt is also interesting to compare the interview of candidates for the court with the interview of Justice Rothstein – see the exchange linked on the value of foreign law..

Comparative law is a lifeline to South Africa, as it builds a jurisprudence of rights, an integral part of Canadian law and a grave threat to American law.


  1. Simon, there is an academic article on this point by Delahunty and Yoo, “Against Foreign Law” 29 Harvard Journal of Law and Publlic Policy 291 to 330 (2005) found on both Lexis and Westlaw.

  2. Thanks neil – for those who don’t want to feed Reid-Elsevier or Thomson, here is a free copy

    John Yoo has been very busy, hasn’t he – and

  3. I should have also referred to the report by Jonathan Raban in the Guardian reporting on an account by Nina Totenberg of remarks made by retired Justice Sandra Day O’Connor to an audience of lawyers at Georgetown University.
    As Raban commented:

    Death threats to judges figured importantly in O’Connor’s speech, with good reason. Last year, an Illinois federal judge found her husband and mother murdered, and a Georgia state judge was shot dead in his courtroom. Within days, Senator John Cornyn of Texas mused: “I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in violence.” DeLay, speaking of the judges who had ruled that Schiavo be allowed to die, said: “The time will come for the men responsible for this to answer for their behaviour.”