NATIONAL SELF-SUFFICIENCY OR INTELLECTUAL ARROGANCE? THE CURRENT ATTITUDE OF AMERICAN COURTS TOWARDS FOREIGN LAW
|Sir Basil Markesinis a1|
a1 QC, LL.D, (Cantab.), DCL (Oxon.) FBA; Corresponding Member of the Institut
DURING the 19th century American law (as, indeed, English law) was open to foreign influences. Foreign creativity was welcomed, not seen as an attempt to interfere with American values and life by telling them how to ordain their affairs. English statutes, mainly on matters of private law, would thus reach the westward expanding United States with a jet lag of anything between 10 and 20 years. Decisions of the highest English courts would also be followed, within about the same period of time, unless local conditions made their adoption undesirable. Occasionally and increasingly local courts also developed the courage to challenge the wisdom of the progenitor system, displaying not only growing intellectual confidence in their own, but also showing the flexibility that is found in societies which have the mixed blessing of a shorter tradition; but when they did so, they invariably felt the need to explain why they chose to go down another path. The reasons given for distinguishing or rejecting the parent model were often informative about both systems. American courts were thus among the first which would allude openly to the policy reasons which dictated their results.
(Published Online June 29 2006)