Should Judges Be Allowed To Use Foreign Precedents?

 The principle of stare decisis has only been a relatively recent legal development, with its core roots being formed in the 18th century . Courts now bind themselves to the judgements of the past in order to adjudicate in the future. Assuming that a reason why precedent is followed is that it provides the reasoning necessary to pass judgement in current cases , it must follow that courts are able to look beyond their national borders and adopt the judgements (and the reasoning it contains) in order to decide cases. Nevertheless, this essay will argue that the use of foreign precedents will give judges too much power and disrupt the ability of an individual to obey the law.

Firstly, judges will have too much power should they be allowed to use foreign precedents. Currently, the only room judges have to manoeuvre around a precedent set by previous judgements is through proving that those precedents have no relevance to the case on trial . They would otherwise be bound to make decisions in line with those courts. When judges have a larger range of precedents to access, they are able to base judicial decision on different precedents and argue that the rules of relevance apply better for certain foreign judgements than local judgements. Judges are therefore allocated more freedom to pass judgement in 2 ways. The first is that judges are no longer bound by the articulated characterisation set implicitly by previous judgements which can constrain how judges make decisions in the future . For example, if a precedent states that you are not allowed to wear a burqa or a crucifix in public areas because they are religious symbols, it constrains future courts to base their judgements on the characterisation that burqas and crucifixes are religious symbols and they are not free to characterise them as cultural components of a person’s identity. Secondly, it is important to note that judgements from different nations often lead to different outcomes. Judges are therefore freer to select a precedent with a desired outcome. The problem with judges having more freedom in passing judgement is that they allow more room for moral judgement to interfere where only legal judgement should exist . When they are no longer bound by characterisation or outcome, the judgements they will pass will align more closely to their personal moral convictions. 

It could be argued that local statutes and common law can often be immoral so judges must have the ability to pass judgement that is more moral; to this I have three responses. First, it assumes that all individuals have the same conception of morality. It is untrue as people tend to base their moral beliefs in different things, be it religion, life experience or Stoic rationalisation. Nevertheless, the various roots of beliefs lead people to have different outcomes when determining what is right and what is wrong. This can explain why individuals from different social classes may have a different reception to policies which increase taxes. Secondly, it contradicts how precedents are linked to the way in which the common law is embedded in, and reflects, general background social and moral norms . Thirdly, even if it is true that laws are immoral, it does not follow that judges should be the ones to fix it. In many countries that respect the doctrine of the separation of powers, the judiciary functions to interpret laws and the legislative functions to create law. It is the legislative that holds the responsibility to create morally favourable laws and amend or repeal the laws that are immoral. 

Furthermore, the use of foreign precedents may disrupt the ability of the people to obey the law. Having a larger range of selection of precedents which have different outcomes means that a case with a set of facts could potentially be decided either way for the defendant. As a result, it is hard for individuals to understand the law and its outcomes because it is near impossible for the average individual to have full knowledge of all case law developments on a certain set of facts. Moreover, it is unclear how consistency within the law can be maintained if a local precedent directly contradicts with the judgement of another nation’s court. Judges would then have to decide which of the two candidate precedents are more favourable at the expense of keeping the law’s consistency. This violates two of Fuller’s desiderata for a system of law, as the use of foreign precedents creates law that is not understandable and creates rules that frequently change that the subject cannot orient their actions by them . What this means for the average individual who may not have a background in legal education is that they would not know what conduct is right or wrong in the eyes of the law. This therefore shows that the use of foreign judgements as precedent is wrong on a jurisprudential basis. 

In conclusion, even if the reasoning currently present in the precedents made within the confines of a national border are subpar, the benevolent consequences of adopting foreign judgements as precedent are unclear. It is hard to prove that judges are fair moral arbiters who should improve the law so they can be trusted with a greater degree of freedom to pass judgement. Furthermore, there is a legal good in the restrictive nature of the doctrine of stare decisis as it is, so foreign precedents must never have authority in the process of passing local judgements. 

- Paren