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Waldron, Jeremy. "Partly Laws Common to All Mankind"." Foreign Law in American Courts.

WALDRON, Jeremy. "Partly Laws Common to All Mankind"." Foreign Law in American Courts. New Haven: Yale University Press, 2012. xv + 304 pp. Cloth, $65.00--Jeremy Waldron is a leading proponent of constitutional comparativism, most notably evident in his Harvard Law Review article, "Foreign Law and the Modern Ius Gentium." Waldron has now expanded on that theme with his latest book, "Partly Laws Common to All Mankind," a title borrowed from the Roman maxim that "[a]ll peoples who are ruled by laws and customs use partly their own laws and partly laws common to all mankind to govern themselves." Although I do not agree with his central thesis, it is an extremely thoughtful defense for harmonizing basic rights across legal systems.

Waldron takes the "difficult and challenging position" that decisions such as Roper v. Simmons and Lawrence v. Texas were simply an exercise of ius gentium, reflecting a normative consensus derived from principles established in practice all over the civilized world. What is ius gentium? It is "a body of positive law regulating relations within states. ... Its distinguishing feature is its commonality: the law of nations represents a sort of overlap between the positive laws of particular states, something they have in common." According to Waldron, what superficially appears to be "a fiction and a chimera" is, in fact, binding authority of constitutional magnitude.

So where does ius gentium come from? It is not natural law as that term is traditionally understood. Nor is it the law of nations with its attendant baggage. It is closer to common law or lex mercatoria, a reflection of a global common consensus that becomes authoritative when judges employ it. Ius gentium reflects principles of the municipal legal systems of the world that transcend particular systems. Judges invoke those principles in pursuit of wise and just solutions in harmony with the solutions reached elsewhere. As with the community of scientists, "ius gentium is available to lawmakers and judges in every country as an established body of legal insight, reminding them that their particular problem has been confronted before...." It is not so much a brooding omnipresence in the sky, but a prudent omni-iudicium on the ground.

Waldron treats harmonization and uniformity as inherent goods, consistent with the notion that we should treat like cases alike. There are pragmatic arguments for ius gentium, but moral universalism and integrity have greater valiance. All peoples are members of a single community with respect to the administration of human rights, and all governments should treat like cases alike. Harmonization, however, has its limits. Waldron concedes that ius gentium must be reconciled with local demands for predictability and certainty within particular legal systems. Principles derived from foreign law should "have some weight with us" but not "anything remotely like ... binding precedent."

Responding to the critics of constitutional comparativism, myself included, Waldron concedes that ius gentium is undemocratic, but the same could be said of other interpretive techniques, such originalism or precedent. Ius gentium is a moral necessity, and that necessity does not evaporate in the absence of democratic legitimacy. Waldron could have responded to such concerns by distinguishing between constitutional and other contexts. Instead he argues that whoever makes decisions about basic rights--legislators, voters, judges--must use foreign law, which is an indispensable component of any intelligent decision about basic rights. He assumes that judges must resolve basic rights by resorting to ius gentium, even though there are democratic paths to reaching the same result that a global consensus would commend.

As for textualism, Waldron views the text in most constitutional and human rights instruments as borrowed in some fashion or another. Where the language in one constitution is the same as that used in other constitutions, intertextual comparisons are not only encouraged, but required. Other contextual concerns (such as structure, history, precedent, or national experience) are not presented as limiting factors, beyond the concession that constitutional text is embedded in unique constitutional processes that may diminish, but not nullify, the utility of comparative analysis.

Waldron displays little concern for the pragmatic arguments about constitutional comparison. He concedes that the current practice may be clumsy, hut there is no normative reason to reject it. He dismisses the charge that judges have insufficient knowledge with the wave of a digital wand. He almost completely ignores the "curse of dimensionality," which makes proper comparisons incomprehensively difficult.

If done correctly, comparisons would be wide and deep, analyzing dozens of civilized countries in light of their unique text, structure, history, precedent, and national experience. Instead they are often narrow and shallow. Ius gentium is an intriguing concept, especially in the hands of someone like Jeremy Waldron, but it runs the risk of focusing on a global consensus about abstractions, eschewing concrete and complex comparisons of different legal systems in all their rich texture.--Roger P. Alford, Notre Dame Law School.
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Author:Alford, Roger P.
Publication:The Review of Metaphysics
Article Type:Book review
Date:Mar 1, 2013
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