Why is it that New Zealand's Supreme Court thinks that foreign law helps us know what our law should be?

Pretend you are a judge ... one who has worked your way up to sitting on New Zealand's highest court. And you have a case in front of you. It is a dispute between (at least) two parties, who want you to say what you think is the correct legal resolution to their conflict.

A part of your job as a judge therefore involves you deciding what the law in New Zealand is (at least, as it applies to the particular dispute in front of you). And deciding what the law in New Zealand is will require you to look in a bunch of different places: at the statutes passed by Parliament and any further rules/regulation made under those statutes; at past decisions by New Zealand's courts insofar as they dealt with similar legal issues; maybe at New Zealand's international treaties/obligations; etc, etc.

But in order to decide what the law in New Zealand is (at least, as it applies to the particular dispute in front of you), do you as a judge look to see what the is law in (say) Australia, or Canada, or the United States, or the United Kingdom, or Japan, or the Seychelles, etc, etc? If so, why are you looking there ... what does it matter that (say) the Canadians deal in a particular way with the legal issue you have to consider? After all, your job as a judge is to understand, apply and even sometimes make law for New Zealand - so just what is it that you are getting from these other places to help you in your task?

This is a question that isn't often asked in New Zealand. As a matter of practice, our judges (especially our Supreme Court judges) do look to the jurisprudence of other nations in order to determine the right (or at least, the best) legal outcome for particular cases. But just why they do that, and what they hope to achieve by doing so, isn't really spelt out.

Which is kind of interesting, because you might think that the practice of looking to (say) the reasoning of Canadian judges to decide that the law in New Zealand requires a particular outcome to a dispute requires some sort of explanation. I mean, we know why New Zealand judges look to statutes to see what the law is - parliamentary sovereignty and all that. And the doctrine of precedent gives previous New Zealand court decisions some measure of authority. But the decisions of non-New Zealand courts? What's the justification for looking at them?

It's against this background that I'm posting (with his permission) a chunk of a paper I was sent by Dr Brian Flanagan, who lectures at National University of Ireland at Maynooth. As you'll see, he and a colleague have done some interesting empirical work on this question which I think is worth making available to a wider audience.

You can download the full paper if you are so inclined, but the extract below contains the crux of his findings. Feel free to post comments/questions in the comments below - I'm hoping Dr Flanagan will drop by and give his thoughts on them.

 

Features of NZ Use of Foreign Law

The coincidence of a culture of independence, of conflicts with electorally legitimated actors, of a broadly common law tradition, and of the privilege of finality, seems to generate a distinctive judicial role.  Seeking to help to explain the use of transnational legal argument by those occupying that role, Sinead Ahern and I surveyed 43 judges from the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States.  We published our findings as "Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges" (2011) 60 International & Comparative Law Quarterly 1.   While the survey’s overall response rate was 42%, all six members of the inaugural New Zealand Supreme Court (Gault, Keith, McGrath, Blanchard, Tipping JJ; Elias CJ) responded, the latter four of whom remain on the court. 

In order to report the responses of NZ Court in isolation it was necessary to first the secure the consent of the participating NZ judges.  I wrote to the NZ participants in early October 2011 and promptly received their consent to publish findings specific to their court.  Analysis of the NZ specific data was assisted by the correlations revealed in the larger survey, which at times suggest a possible causal relationship between judicial attitudes that, given the size and broad consensus on the NZ Court, would otherwise hidden.

The data establish fairly clearly that foreign judges form a significant professional reference group for all NZ judges: each noted that they felt, "a sense of high professional esteem for Supreme Court judges from other jurisdictions", with all but one attributing this esteem to their possession of "equivalent professional responsibilities".  A follow up question asked: Is this sense of professional esteem greater than that which you feel towards subordinate judges in your own jurisdiction?  All but one judge agreed that they held supreme court judges from other jurisdictions in greater professional esteem than their domestic subordinates.  Likewise, most said that personal contacts with foreign supreme court judges contributed to their analysis of domestic rights and that of five different speeches on rights that they would prioritize attendance at that given by the foreign judge. 

The esteem in which foreign judges are held by NZ judges is reflected in the citation of foreign law in NZ judgments.  Thus, asked about the frequency with which they refer to the law of other national jurisdictions in their judgments on rights, all judges characterized themselves as "regular" users.  Similarly, asked about the frequency with which they use comparative material in justifying their legal conclusions on rights, all but one answered "regularly".  NZ esteem for foreign judges is also reflected in the importance attributed to international human rights law, with 4 judges placing it ahead of the "domestic constitution" as, "the tool most useful for identifying the protection to be given to rights asserted in your court".

On the comparability of other jurisdictions, responses ranged from specifying no particular jurisdictional criteria (two judges) to specifying that a jurisdiction be democratic (4 judges) to insisting that it must also fall within the common law tradition (two judges).  More generally, all but one characterized the NZ Constitution as "living", i.e., that, "succeeding generations should be able to draw new or revised meanings therefrom".  As regards stare decisis, on the other hand, half the Court settled on promoting "a sense of predictability" as the main reason behind their use of precedent. 

In our ICLQ article, we considered two prominent hypotheses about the judicial use of foreign law in the interpretation of individual rights : the reinforcement of professional status and the enhancement of legal conclusions.  We also considered the null hypothesis, or what we described as "citational opportunism": that foreign law is used to indicate the merit of outcomes in whose determination it has not in fact had an input.  The respective hypotheses appear mutually exclusive, not in the sense that a given judge may not sometimes compare to reinforce professional status, while at other times to enhance the quality of his legal conclusions, etc., but in the sense that they will explain exclusively rather than jointly a given use of foreign law.  Drawing on the larger survey in tandem with the NZ specific data, we may test the relative success of these hypotheses with respect to the NZ Court. 

Take the hypothesis that judges are seeking to be rewarded with professional approval or acceptance from their counterparts elsewhere.  The hypothesis is consistent with the differential between the professional esteem in which NZ judges hold their foreign counterparts and their domestic subordinates.  In the larger survey, we found a statistically significant correlation between the prioritization of attendance at a foreign judge’s speech on rights and the justificatory citation of foreign law.  The collective NZ prioritization of the foreign judge thus supports the theory that NZ judges cite foreign law for social reward. 

Similarly, in the larger survey, we identified a statistically significant correlation between the expression of a greater sense of professional esteem for foreign judges and characterizing international human rights law as the tool most useful for resolving rights questions.  We speculated that international human rights law may be seen by some as providing a socially rewarding opportunity to engage in the interpretation of common legal instruments.  The social reward hypothesis thus also appears positively supported by the large number of NZ judges who characterize international human rights law as the tool most useful for resolving rights questions.  

As against this hypothesis, however, the response to Question 9 reveals little attention to professional peer approval or acceptance (Q 9):

Which, if any, of the following considerations might justify the citation of comparative material in the interpretation of domestic rights? (Please rate in order of importance) 8 = highest.

  1. The gains to your state’s international standing from a visible judicial engagement with foreign ideas and attitudes.
  2. It provides an additional source of impartial guidance (such as precedent), thus facilitating objectivity in judicial interpretation.
  3. It provides an additional factual source, thus enabling the court to make more accurate predictions as to the effects of challenged laws and rights.
  4. It provides an additional source of legal authority, thus increasing the chances that a legal authority can be found to match what you already believe to be the best result from a policy perspective.
  5. It assists the work of establishing enlightened approaches to rights in emerging democracies.
  6. The importance of upholding comity between judges internationally.
  7. It demonstrates that the judicial review of legislation for compatibility with rights also happens in other respectable democracies.
  8. Other—please specify.

The most important consideration justifying citation of comparative material for NZ judges was its status as a "source of impartial guidance (such as precedent)".  Half the NZ Court settled on this justification as being the most important, a choice which proved somewhat less popular among apex judges generally, albeit still the most common (30%).  Reflecting its status as the second most popular choice among apex judges generally, two judges specified (4) as most important, with another rating it second most important.  Conversely, the considerations most closely related to comparison for social reward, i.e., comparison for the sake of comity between international judges (6) or for the sake of gains to one’s state’s international standing from a visible judicial engagement with foreign ideas and attitudes (1), received negligible attention. 

We turn now to the epistemic basis for judicial comparison: that judges look to foreign law because they feel it increases their chances of reaching the best legal conclusion.  This is the picture suggested by the literature emphasizing the role of foreign law as persuasive authority.

The epistemic hypothesis is supported by the indication by all but one judge that they make indirect use of their legal knowledge of other countries.  Of course, such usage does appear in tension with the principle that legal reasons for judgment must be cited.  In this regard, one of the additional comments may be instructive: noting his use of, "the democratic elements in great US decision"’, with, "little express acknowledgement", one judge compared this practice to his attention, both as advocate and as judge, to the writings of a prominent twentieth century legal theorist.   For this NZ judge at least, it may be that, just like philosophical writings or artistic expression, foreign court opinions may contribute to forming a legal conclusion not by any persuasive authority, but purely by their actual persuasiveness.  Where an idea contributes purely on foot of its persuasiveness, its source does not count in favour of the conclusion reached, and, hence, requires no acknowledgement on the principle that legal reasons for judgment are to be cited. 

Equally, the epistemic hypothesis is consistent with the fact that most judges say their approach to comparison is affected by a concern that they may not fully appreciate the legal and factual context surrounding material from other jurisdictions.  As against it, however, there is the failure of two judges to indicate adherence to general criteria in assessing a jurisdiction’s comparability, and the less than emphatic endorsement of transnational material as either a "source of impartial guidance (such as precedent)" or an "additional factual source... enabling... more accurate predictions as to the effects of challenged laws and rights".

Finally, there is the suggestion that foreign judges and legal systems are a faux reference group; that they are used to advertise the merit of decisions in whose determination they in fact had no input.  The notion that foreign law is sometimes cited by NZ judges merely because indications of correspondence with other jurisdictions are useful for persuading domestic observers of the merits of a decision is supported by Question 9, for which a third of the Court stated that the most important reason for resort to comparative material is that it increases the chances that a legal authority can be found to match what one already believes to be the best result from a policy perspective.  Indeed, as an admission of false advertising, there would seem to be a bias against revealing this view – even in a confidential survey.

Taken as a whole, the data do not decisively favour any of the three examined hypotheses, i.e., that foreign law is used to reinforce professional status, to enhance the quality of legal conclusions, or to advertise the merit of conclusions in whose formation it in fact had no input.  Each hypothesis has definite support; in this there is little or no appreciable difference with the evidence available in respect to common law apex judges generally.  Thus, whereas foreign law often appears to contribute to NZ judges’ conclusions on rights, sometimes that contribution will derive from an associated social reward, and at other times the contribution itself may be illusory.      

Comments (11)

by Chris de Lisle on March 02, 2012
Chris de Lisle

A very interesting read about something it had never occurred to me to question. 

On reflection, I'm thinking that the structure of our constitution encourages judges to look to foreign precedent. After all, the Bill of Rights Act is essentially a treaty and we don't have any written constitution of our own to work with (Aside from the Treaty, which is very short, very controversial, and, I feel, assumes a British legal framework). I would be interested to know how the situation compares to Israel (I think Britain would be less relevant, given the length of their legal tradition and the prescence of things like the Magna Carta to fall back on).

The other structuralist element that occurs to me is the system of legal education- when I was still in law school, a large portion of the cases we studied were foreign or British. That much of the latter isn't legally foreign might indicate another structuralist issue, encouraging judges to look to overseas decisions even when not required by the Imperial Laws Act (?).

I imagine that the proportion of overseas cases was larger when our Supreme Court Justices were being educated (and I imagine that for several of them the law of the Empire/Commonwealth would still have been presented as essentially a single entity) - and I note that most of them completed their postgraduate studies at overseas universities, which is inevitable in NZ and might make future Justices more receptive to overseas law.

Finally, and I guess this is a rather obvious point, the reaching to overseas precedent isn't limited to our Supreme Court Justices; our legislators seem to be fond of it as well, given BoRA, Ombudsmen, and MMP. And of course, looking to what they do overseas is deeply engrained into our national psyche.

by Scott Chris on March 03, 2012
Scott Chris

I'll try again:

Why is it that New Zealand's Supreme Court thinks that foreign law helps us know what our law should be?


Because a wise person is not too proud to defer to a greater body of wisdom.

by Paul Corrigan on March 05, 2012
Paul Corrigan

Andrew: You posed a question that I've felt afraid to ask since I temped as a court-taker at the Court of Appeal a few years back.

I was often intrigued by lawbooks and references consulted, even from Malawi and Botswana.

I wondered why, and mentioned it to one of the law clerks who slaved away from before dawn to well after dark. She told me that judges believed it important to look to other jurisdictions, as well as New Zealand, for precedents or similar cases on which to base judgments.

by Andrew Geddis on March 05, 2012
Andrew Geddis

Chris,

Good points.

Scott,

I don't necessarily disagree with that - indeed, who could? - but it does rather leave unanswered why overseas jurisprudence represents "a greater body of wisdom" that we should defer to. In what way are overseas judges "wiser"? Are their policy judgments superior? Is their capacity to reason greater? 

After all, if there was (say) an artist who before creating a work of art sifted through the trends of New York/Paris/London/etc, so as to ensure that the work faithfully replicates what she/he observes other, "better" artists overseas doing, surely we'd deride her/him as continuing to suffer from disabling cultural cringe and failing to make "New Zealand" art? So why is the practice of judging different?

Paul,

Perhaps an interesting question might be, if it were judges themselves who had to slave away from before dawn to well after dark locating and collating this material, would they still think it so important to look to other jurisdictions? In other words, has the apparent "importance" of such material increased as the barriers to accessing it have fallen away (in terms of having more clerks to look for it - and they have to do something! - as well as actually being able to get hold of it)?

by Scott Chris on March 05, 2012
Scott Chris

 but it does rather leave unanswered why overseas jurisprudence represents "a greater body of wisdom"

Andrew, as I attempted to explain in my previous (inexplicably deleted) post, I postulated that law appears to me to be a meme-like system that becomes more and more refined as it evolves, in some ways analagous to the peer review system that works so well for science. On that premise, I'd assume that, say, the British law system would be that much more advanced simply by virtue of having been so thoroughly tested. (a magnitude of a twenty times over ours maybe?)

 an artist who before creating a work of art sifted through the trends of New York/Paris/London/etc, so as to ensure that the work faithfully replicates what she/he observes other

I don't know to what extent New Zealand's SC Judges replicate the judgements made by their overseas counterparts and I'm not sure that equating an artist with a judge is a reasonable comparison either. Wouldn't the fields of law and science have far more in common, in which case the scientist, and by extension a judge would be foolish not to refer to his peers overseas. Isn't the holy grail of both science and law the attainment of internal consistency? 

Regarding cultural cringe: I've heard it's a universal phenomenon suffered by everyone except Parisians.

 


by Andrew Geddis on March 05, 2012
Andrew Geddis

Scott,

What you say makes a lot of sense, and it's one of the main justifications put forwards for the use of comparative materials in law. I guess the only potential problem with it is in seeing law as being "a meme-like system that becomes more and more refined as it evolves". Terms such as "refined" and "evolves" carry conotations of progress towards some universal end that is good for all places. Can law be such a thing? Or, if these terms don't mean that, then we still need to have a theory that tells us when we should (and when we shouldn't) carry over legal developments from other jurisdictions into our own. To stretch the metaphor (always dangerous, as it can overwhelm the original point of discussion), once we note that the finches of the Galapagos have evolved beaks of a certain kind in the particular environment they live in, is that insight of any use to a bird deciding what kind of beak to have in a different environment? (And here the metaphor dies a horrible death.)

The same point applies to:

Wouldn't the fields of law and science have far more in common, in which case the scientist, and by extension a judge would be foolish not to refer to his peers overseas. Isn't the holy grail of both science and law the attainment of internal consistency? 

The difference is, of course, that scientists study physical laws using research methods that (by definition) are the same everywhere - the proof of a scientific claim is that it can be replicated in Wellington as easily as it can be in Sydney or Caracas. But why should we expect the laws of New Zealand to be so "like" the laws of (say) Canada, the United Kingdom, or France - much less Malawi or Botswana (comparators that Paul mentions above) - that developments in those places ought to be a guide for developments here?

I hasten to note that in my own writings I'm a frequent citer of overseas material - so the challenge is as much to my own practice as it is to that of judges!

by Brian Flanagan on March 07, 2012
Brian Flanagan

Andrew & Scott,

One way of overcoming the difference between science and legal reasoning is to treat the relevant sort of legal reasoning as a moral or policy inquiry.  In the case of the latter, we are seeking to predict what will occur given some policy change, for which international comparison might, in theory at least, make for a more reliable decision.  One difficulty with this is establishing what exactly is producing the un/desired effect in the foreign country – a statutory provision or some less tangible cultural proclivity?  I guess the more culturally similar the foreign jurisdiction, the less of a problem this will be.

With a moral inquiry, we are seeking moral truth, which, at least if objective, should be something that others can help us with locating.  One difficulty which seems to emerge for this understanding of judicial comparison is how we are to tell that some set of foreign jurisdictions is likely to spot moral truth while another set is not: if we were actually in a position to work this out, would we really need anyone’s help?

Chris, your points about the structure of the NZ system encouraging foreign comparison are plausible, but I’m sceptical that they are generally determinative of the judicial use of foreign law in NZ (or elsewhere).  Recall the number of judges who appear adopt an instrumental approach to its citation.  It may also be relevant that the US Supreme Court, while now possessed of a great deal native legal sources, does not appear to have lessened its reliance on foreign law over the years (Calabresi and Zimdahl 2005) and appears to use it in increasingly prominent ways.

by animalspirit on March 07, 2012
animalspirit

Andrew.  You will probably not like this comment, but having worked as a consultant for various govt entities over the years (including Oz) I do feel that NZ is keen to reinvent the wheel with difficult legislation like the RMA and ACC which judges and advocates alike struggle to understand.  Perhaps it's a good thing that our higher courts look elsewhere for inspiration because we don't make good law here!! 

by animalspirit on March 07, 2012
animalspirit

I do have 30 + respectable "scientific" publications.  Does that qualify me to comment on the behaviour of New Zealand judges?   Mmmmmm.

by Andrew Geddis on March 07, 2012
Andrew Geddis

@animalspirit,

Without necessarily disagreeing with (or "disliking") your overall views, I'd take issue with your claim that ACC is "difficult legislation ... which judges and advocates alike struggle to understand" when the alternative is the tort system of personal injury liability!

by Scott Chris on March 07, 2012
Scott Chris

[AG]The difference is, of course, that scientists study physical laws using research methods that (by definition) are the same everywhere

True, but both science and law work according to sets of rules even though the foundation of science is apparently objective and the foundation of law subjective. (many would argue that our understanding of the material world is subjective anyway because history has shown that one paradigm is inevitably superceded by its successor)  Art on the other hand is essentially refined whimsical tradition imo.

[BF]With a moral inquiry, we are seeking moral truth, which, at least if objective, should be something that others can help us with locating.

Brian unless you are a moral absolutist, surely you would concede that there is no such thing as objective morality. I subscribe to the idea that most ethical systems are based on the premises that human beings are selfish but reasonable and that human beings are intrinsically equal, with varying constructed ideas of human rights being the practical derivative of these assumtions. 

In relation to the subject of the AG's post, one would assume that systems of law founded on similar principles of ethics and logic to our own would be roughly alligned and converging in interpretation rather than diverging. And if not, then why not?  


 

 

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