Judge (and, unfortunately, likely Justice) Sotomayor’s remarks on the use of foreign legal ideas in U.S. courtrooms are troubling. Any person with even an entry-level understanding of law can tell you that different legal systems are just that – different. Each legal system has its own nuances; different laws, different jurisdictions, even different ways of reaching conclusions. There is no international way to judge – it is an inherently local job.

Legal ideas cannot simply be transferred from one place to another. Other nations have different laws and different ways of applying laws for a reason: their governments and their people have come together to form different legal structures that govern their nations. The people and governments of these nations have responsibility for their own laws. The people vote politicians in and out of office based on what they want their laws to do and whether the politicians are acting in accordance with their understanding of the social contract between government and constituent. Sometimes the people vote on the laws themselves, without the “middle man” of government. The courts in these nations, if they have the power of judicial review, are then expected to look at these laws through the lenses of constitutions that are often very different from our own. This in and of itself makes many foreign legal decisions inapplicable to our nation. Logic alone indicates that law, unlike math, has no transitive property.

Using foreign law to guide domestic law is more than a logical failure. It is an ethical problem. Foreign laws are different because the citizens of those nations have reached different agreements with their governments than have been reached between our government and our people. If the judicial branch, which is not voted upon by the people, uses foreign understandings of law as an interpretive guide or aide in deciding domestic cases, it is akin to inserting a new clause in our nation’s social contract without the consent of the governed.

While liberal courts have pointed to foreign law during past decisions, this practice is not common, is not widely accepted, and should certainly not be accelerated. To accept legal reasoning from another nation and apply it to our own is at best inapplicable and at worst irresponsible. While Missouri’s State Judge Stith enbraces this, we need a U.S. Supreme Court that understands they are to work within the constructs of our own nation, not stray outside the bounds of our legal system when they cannot find the answer they are looking for. We hope Missouri’s senators will reject Obama’s nominee.

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