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What's New? | Faculty in the News |  News Archive | News Home
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As part of a sabbatical project, Professor Ursula Bentele traveled recently to South Africa to observe hearings at the Constitutional Court in Johannesburg and to conduct interviews of several current and former justices of that court. Her focus is on the court's use of foreign law in its constitutional adjudication. The practice of referring to international law and opinions by foreign courts has generated heated controversy in the United States, with justices of the Supreme Court vehemently disagreeing with one another, some members of Congress calling for impeachment of judges who rely on foreign law, and academic writers both defending and criticizing the practice. Aware that the South African court has routinely used such outside sources since its establishment twelve years ago, Professor Bentele decided to look closely at the court's judgments from this perspective and to ask the justices what value they see in looking abroad, as well as how they deal with the kinds of difficulties raised by American critics. She is writing an in-depth article describing her findings in an attempt to shed empirical light on the current debate. Professor Bentele provided this description of her meetings with the justices: Intrigued by the recent heated controversy over the United States Supreme Court's references to international and foreign law, I thought it would be interesting to study closely a court that routinely uses such sources in constitutional adjudication. Having spent a previous sabbatical in South Africa, I knew that the Constitutional Court set up by the new country's democracy was specifically instructed that it must consider international law and may consider foreign law in making its determinations under the Constitution. How had this practice, particularly with regard to foreign law, worked over the past twelve years? Did the court confront the kinds of difficulties envisaged by critics in the United States, and if so, how did it deal with them? Would some of the justices be willing to talk to me about their experience with the use of foreign law? The answer to the last question was gratifyingly positive. With the assistance of Justice Kate O'Regan, whom I met in 1992 when she was a law professor at the University of Cape Town, I sent e-mail requests for interviews to all the current and former justices of the court. Quick responses arrived from several justices who were willing to see me to discuss the role of foreign law in their decision-making. Before my scheduled trip to South Africa in mid-February, I arranged to speak with former Justice Richard Goldstone at Harvard Law School, where he is currently a visiting professor. I had met Justice Goldstone on several prior occasions, most recently at the dinner held in his honor the evening before he was awarded an honorary degree as speaker at the Brooklyn Law School graduation in June 2006. The graduating students and their families who heard him that day clearly appreciated the steadfast adherence to human rights principles that guided his extraordinary career as a South African jurist and as chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda. At his Cambridge office, Justice Goldstone received me warmly and graciously agreed to a taped interview. He quickly sounded a theme that was to be repeated again and again during the course of my conversations with the South African justices: Why wouldn't one look to all possible sources of wisdom when confronted with a challenging issue of constitutional interpretation? In every other discipline, those who address new questions read widely and consult all available sources. Why should the law be different? I flew to Johannesburg the following week. Visiting the new Constitutional Court, I was impressed by how the structure itself embodies the notion of openness to new ideas, even as it pays homage to the wrenching history of its birth. Modern architecture is combined with portions of a century-old prison that formerly occupied the site. Mahatma Gandhi and Nelson Mandela, among many others, spent time there awaiting their trials. Each bench, painting and sculpture throughout the building appears to have a special meaning and significance. One artwork that strikes visitors with its power and beauty is "The Blue Dress" by Judith Mason, a tribute to a young freedom fighter who clung to her dignity during unimaginable torture by the security forces. The court's comprehensive web site, www.constitutionalcourt.org.za, describes this and other works of art on display. The courtroom where oral arguments are held also contains many symbolic touches. Open and welcoming, although it is below ground level, it is filled with natural light that shines through the skylights. Parts of the old prison wall are visible through large picture windows. My favorite feature was a long, narrow window through which the justices and audience have a view of the feet of pedestrians passing by. This was a deliberate touch by the architects to ensure that a glimpse of ordinary citizens will penetrate the court proceedings. The justices sit at eye level with members of the public, who are seated on raked theater-style benches. Wearing green robes with black and red stripes on the sleeves reminiscent of the South African flag, the justices have their names displayed before them, marked in white on black cowhide. I was told the cowhide is traditional in African tribal courts. Although the advocates as well as the justices' law clerks wear black robes and speak as formally as one would expect, the whole atmosphere seems very much in keeping with a court that is in touch with the people it is trying to serve. During my visit, I observed several arguments that provided insight into some of the complex issues arising out of the wording of South Africa's carefully crafted, modern constitution. I also was able to see firsthand how foreign law was used by the advocates appearing before the court, and how the justices reacted to those references. In addition, I was privileged to speak individually with several members of the court to get their views on the value, as well as some of the pitfalls, of looking to courts in other countries for guidance. Among the cases I heard argued, the one in which foreign law played the most prominent role involved the question of whether the Minister of Defence was obligated, in any sense, to engage in collective bargaining with the South African National Defence Union. The advocate for the defense minister suggested that the court look to countries like France, Italy, and Japan, which did not incorporate into the military context any rights ordinarily afforded to labor, while the union's counsel pointed to the Netherlands and Germany, which do impose some duty to bargain on the military. Both sides also cited to materials from the United States and Canada. I look forward to seeing how the justices address the various approaches when they issue their decision. Another case in which the justices seemed eager for advice from any source revolved around a girl who wanted to be able to wear a nose stud, part of her cultural identity as a Hindu, to school. The school's policy prohibited jewelry, and the principal and school board refused to make an accommodation for her. From their probing questions, it was clear that the justices were keenly aware of the complexity of trying to establish uniform standards while giving space to cultural diversity. If other countries around the world had found solutions to similar problems, the justices wanted to know about them. During my conversations with the justices, while each had his or her own individual approach to the issue of using foreign law, several common themes emerged. First, all the justices stressed that when looking to foreign, as distinguished from international, law, opinions of the courts of other countries are in no way binding. Indeed, as Justice O'Regan emphasized, they do not even serve as persuasive authority. If the court adopts the position taken by a foreign court, it does so because it is in agreement with it, rather than because of any weight attached to the fact that another court has come to that conclusion. Second, several justices found it useful to look to the law in other countries to expose their own preconceptions and biases. Seeing how another court approaches an issue, which may be entirely contrary to the approach traditionally taken in domestic courts, helps to clarify the assumptions underlying the different ways of addressing a difficult and complex question. Third, some justices noted that when many countries arrive at similar solutions for certain kinds of problems, the court achieves a sense of confidence that it is on the right track. Finally, with reference to provisions of the South African Constitution that were based on models in other parts of the world, justices thought it only logical to consider how those comparable provisions had been interpreted in the countries whose language had been borrowed. Although all the justices appreciated the value of looking to foreign law, they were also aware of the potential dangers and complexities of the practice. They readily acknowledged the potential for mistakes in interpreting the law of other countries, particularly when opinions were written in other languages. They all noted the critical importance of considering foreign opinions in their cultural and political context. They recognized that even identical words or phrases can carry distinctly different meanings, and some noted that the practice of transposing concepts dealing with the structure of governments can be particularly problematic. Regarding the charge of "cherry-picking," that is, citing to foreign law only when it agrees with one's own position, most of the justices did not see references to foreign law as distinguishable from any other kind of authority that can be used selectively. As Justice Goldstone put it, "If you are going to use foreign law you . . . really must cover the field and report on those decisions that support your conclusion and distinguish those that don't . . . I'm sure any judge with any intellectual honesty is going to do that." Read more about Professor Ursula Bentele.
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