Hosted by the University of San Diego School of Law in Celebration of Constitution Day
September 19, 2006, 6:00 p.m.
Joan B. Kroc Institute for Peace & Justice
Peace & Justice Theatre
Join us for a lecture by Pierre Legrand, visiting professor of law at USD and law professor and director of the postgraduate program in comparative legal studies at the University of Paris-Sorbonne.
Recent U.S. Supreme Court decisions such as Atkins v. Virginia (2002), Lawrence v. Texas (2003) and Roper v. Simmons (2005)
have highlighted the controversy over the relevance of foreign
law to U.S. adjudication. Professor Legrand will discuss the
impossibility of transplanting foreign law without considering
the law's original context and intent. He will argue that, in
the current era of globalization, law students must understand
that law and its practices have taken many different forms in
countries around the world.
RSVP at your earliest convenience to usdlawevent@sandiego.edu or to the Event Response Line at (619) 260-6848.
The University of San Diego School of Law is a State Bar of California approved MCLE provider and certifies that this activity is approved for one hour of general credit.
Abstract
Recent U.S. Supreme Court decisions such as Atkins v. Virginia (2002), Lawrence v. Texas (2003) and Roper v. Simmons (2005) have highlighted the controversy over the relevance of foreign law to U.S. adjudication. In particular, it has been debated whether a U.S. court should refer to foreign law as it purports to ascribe meaning to U.S. constitutional texts. For academics who are engaged in the comparative study of law and who claim expertise in one or more foreign laws, it is crucial to see that references to foreign law can only make sense if law is understood as a cultural phenomenon.
In other words, it must be the case that the foreign law in which the U.S. courts may be interested is seen to be answering a social or economic demand that has developed elsewhere in the light of specific sets of historical or political circumstances that have emerged elsewhere. Of course, the more one learns about the foreign situation, the more one appreciates how different it is from that prevailing in the U.S. This suggests that any form of "borrowing" of law or of ideas about the law must be pitched at a very high level of cultural sophistication if it is to enjoy any credibility and if it is to prove at all helpful. The idea that one can simply "transplant" foreign law irrespective of the circumstances out of which it has fashioned itself must be rejected — a point which is just as valid with respect to legislative reform.
Importantly, the reference to foreign law can prove very rewarding in other contexts such as legal education. Law students must realize that the law they are taught — be it contract, administrative, or tax law — does not have any claim to being universally "right" or "correct" or "true" — a fact which is often forgotten "in the heat of the moment" and which may prompt unacceptable ethnocentric or imperialistic attitudes.
Law students must see that the law they are taught is itself, just like foreign law, a form of local knowledge: it answers a local social or economic demand arising from local historical and political circumstances. To appreciate the limited range of the "normative purchase" pertaining to the law one is taught, it is necessary to become aware that things are done differently elsewhere and to understand that although things are done differently elsewhere they nonetheless make good sense... elsewhere!
This certainly does not mean that one cannot critique foreign law. One can, and one must. But one has to appreciate that any such critique is inevitably situated. In other words, one does not challenge foreign law because one's own law is inherently "superior" but because one, on account of one's background training, has come to think that it is better. In a most important sense, the study of foreign law thus fulfils a key pedagogical objective to the point where it is arguable that in the current era of transnationalism, no law school can fail to impress on its students that the law they are taught is, at the end of the day, simply one amongst many, no matter how good it looks from a local vantage point.
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