Constitutional adjudication: Whether making reference to foreign

law by national judicial bodies is proper: A case from US

By Legesse Tigabu

Case for comparative analysis: Roper v. Simmons

Constitutional issue: Execution of juvenile offenders above the age of 15 and under 18

Short description of the case: Under this case Christopher Simmons committed murder
while he was 17 and he was tried and sentenced to death after he attained the age of 18.
The state of Missouri charged Simmons with burglary, kidnapping, stealing and murder in
the first degree. The state’s trial court passed death penalty and this decision was reversed
by the Supreme Court of the state. Then the state appealed to the Federal Supreme court of
US in which the decision of the state’s Supreme Court affirmed.

The relevant law for the case is US constitution (Amendments 14 and 8) since the issue is
as to whether death penalty imposed on a juvenile above 15 and under 18 is permissible
under these two amendments of the US constitution, but the rules are not clear enough to
decide the case because they don’t say any thing as to whether the juvenile between 15 and
18 can be subjected to death penalty or not. This raised controversy regarding the issue and
in this paper I have argued supporting the use of comparative material in national courts in
deciding such cases because of the reasons I have explained in the subsequent parts of my
paper.

First, let me start with what the Supreme Court of US did to find way out for the
controversy i.e. why and how the court makes reference to foreign law. Before the decision
of this court, in the case of Stanford (1986), the court stated that “out of 37 states 22
permitted death penalty for 16 years old offenders and 25 permitted for 17 years old

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offenders and this number in the courts view indicated there was no national consensus
sufficient to label a particular punishment cruel and unusual…..”

Regarding this, US Supreme Court in our case at hand, said that “in holding that the death
penalty cannot be imposed upon juvenile offenders, we take into account the circumstances
that some states have relied on Stanford in seeking the death penalty against juvenile
offenders, but this does no longer control cases pending or those yet to arise.” The court
forwarded this argument based on the fact that there was radical change after Stanford
decision as so many states undertake to abolish juvenile death penalty and it made
reference to foreign law experience to avoid any confusion and to make its argument
strong on the point that juvenile execution is unconstitutional.

The Supreme Court, while justifying its reference to foreign law, stated that “our
determination that death penalty is disproportional punishment for offenders under 18 finds
confirmation in the stark reality that the US is the only country in the world that continues
to impose death penalty on juvenile offenders.”

I strongly support such reference by the court to foreign law because firstly there is doubt
under the US constitution regarding the issue of death penalty of juvenile offenders and
there are best and relevant experiences of foreign law on the same problem and
consultation to such proven experiences would avoid the doubt.

The court rightly explained that the UN convention which is ratified by all countries of the
world except US and Somalia contains a clear prohibition on capital punishment for crimes
committed by juveniles under the age of 18. After ratification of such UN convention,
those only few countries (seven) out of the world other than US which were executing
juvenile death penalty either abolished such juvenile death penalty or make public
disapproval of the practice.

In this regard, the court said “in sum, it is fair to say that the US now stands alone in a
world that has turned its face against the juvenile death penalty.” For a reasonable and

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logical judge, it is obvious to understand how US is doing some thing unusual and
unacceptable by the international society. And when we analyze such relevant foreign
experience in light of Amendment 8 and 14 of the US constitution, it would be easy to
understand how death punishments for crimes committed by juveniles are against the
constitution’s purpose under these provisions. I mean failure to make such relevant
reference to foreign law experience keeps the issue in doubt.

I am supporting such reference to relevant foreign experience, because in our global world
business and human rights now become international or comparable subjects and this
means that lawyers and judges must know more about the world (Justice Breyer).1 There
fore, the universality of some problems results in pragmatic solutions in many countries
even though there may no be solution in some others. In this regard, as it can be
understood from the conversation of the two American justices (Justice Breyer and Justice
Scalia), such pragmatic legal solutions will be pool of solutions for countries which don’t
develop such solutions.

It may be argued that such reference leads to subjectivity of judges, but the judge who
looks at relevant foreign experience is more objective because he is not imposing his own
moral views rather he is using objective standard from relevant and pragmatic experience.2

One could also probably argue that such foreign law reference is not legitimate because the
constitution is truly dependent up on the consensus of the people and not on foreign law,
but a judge is not imposing something totally different from a given legal system rather he
is making reference to some relevant foreign law experience in case where the problem he
is addressing is more likely tied to the details of another legal environment so that
uncertainty in his own law can be resolved.3

What is more, it is possible to argue that the result will be different even though we are
making reference to foreign law experience which addresses the same problem because of
1
A conversation between US supreme court justices, I.CON, VOL.3, Number 4, 2005, p 533
2
Ibid p. 527
3
Ibid p. 529

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difference in methods in different legal systems and therefore one may not understand the
surrounding jurisprudence.4 But I disagree with this argument because difference in
methods cannot totally bar the way to make reference to relevant foreign laws as it could
be possible to see the same results in some universal matters even though there are
different methods. If we take death penalty of juveniles for example, the prohibition under
UN convention ultimately will have the same result in different party states of the
convention which have different methods of their own legal system because at least there is
no way to impose such punishment on those who don’t attain the age of 18 since there is
clear substantive prohibition of such punishment. If we refer to such relevant foreign law
in case we face uncertainty in the US legal system, the result will be the same ultimately
since such reference will avoid uncertainty and make it clear that death penalty below the
age of 18 is unusual and cruel even though US has different methods under its legal
system. I mean that in case of some universal substantive matters difference in methods of
legal systems cannot bring difference results. For instance difference in methods cannot
result in torture in one country and not in others once torture is universally prohibited.

As one can understand from the conversation of the two American justices, it may be fairly
argued that there is a certain selectivity that is result oriented (biased selection) in the way
foreign references are considered by a judge and Justice Breyer confessed that there are
only few opinions from Asian nations other than India and he explained that this is the one
reason why we understand that decisions of foreign courts are not binding. But still he said
that this couldn’t prohibit the judge from using the general rule “take it for what it worth.” 5
Because reference to relevant and pragmatic solutions on the same problem from other
countries which have developed a best solution would be necessary to make doubts clear.

Generally, reference to foreign law which has rich experience for some uncertain problems
we faced is necessary since it would be helpful in resolving controversial issues. But at the
same time it should be understood that I am not saying that making foreign courts decision
binding on national courts is necessary. Because as it can be easily understood from the
conversation of the two justices, to give binding effect for foreign court decisions would be
4
Ibid p. 528
5
A conversation between US supreme court justices, I.CON, VOL.3, Number 4, 2005, p 530

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problematic because there may be biased selection and what is more it is practically
impossible for national court judges to assert what is decided in every side of the world.
But this will not minimize the significance of reference to relevant and pragmatic solutions
or experiences of foreign law in case it is necessary as this will settle some doubt as it is
discussed in my paper.