THE JUSTICES O’CONNOR AND SCALIA DEBATE IN LAWRENCE v TEXAS AND ROPER v SIMMONS
Comparative Law, as explained by Geoffrey Samuel (2014), “…has as its basic preoccupation differences between legal systems…” (p. 17). In addition, when considering it as a discipline within the field of study of legal systems, Aharon Barak (2005) notes “…is not merely the comparison of laws” (p. 196), thus, comparative law plays an undeniable role in “…expanding judicial thinking about the possible arguments, legal trends, and decisionmaking[sic] structures available.” (p. 197). To summarise, Comparative Law, as a discipline, seeks to harmonize different legal systems based on common principles, adapting them to new social and judicial particular needs. Hence, it divides in two specific methodologies: macro-comparison (a general analysis with regard to two different legal systems) and micro-comparison (a specific analysis that covers similar legal figures between two different legal systems).
Regarding its main functions, Comparative Law seeks the (a) harmonization of differences amongst legal systems, and (b) the circulation of legal models.
When referring to its first function, Comparative Law seeks to offer support for lawyers and judges when required to find a solution to a particular legal issue. This task derives from the need of departing from a solid ground to do justice on the specific matter as no singular legal system offers solutions to all possible problems but to the ones that already occurred and, therefore, considered in laws. This thesis finds support in the democratic rule of most of the Western countries (Barak, 2005). As historical and political changes have inspired democracy, it is undeniable its implementation in many of the Western countries responds to shared values and principles. Furthermore, bearing in mind “system” is not equivalent to “tradition”, cultural differences between countries configure a tradition that inspires a current legal system, which would not be identic to another apparently similar country[1].
Clear opposite examples justifying the need of harmonizing different legal systems are found in two U.S. Supreme Court cases; one arguing the same-sex marriage (Lawrence v. Texas) and the other discussing the death penalty over minors (Roper v. Simmons).
Justice Scalia (2005) emphasizes, in his dissenting opinion to Roper v Simmons, “[w]hat those foreign sources ‘affirm’… is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America.” (pp. 22-23) He adds “[t]o invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking[sic], but sophistry.” (p. 21) In the first case, Scalia’s viewpoint reflects that if for reaching a decision, a confirmation with foreign opinion is required, the ratio decidendi of solutions based on national legislation heavily relies more on foreign than to national legal practice. An issue confirmed in his dissenting opinion of Lawrence et al. v Texas, where he determines foreign laws or traditions do not have to influence in equal condition with national laws or traditions when supporting a decision (Scalia, 2003). This reasoning expresses not because other countries opt to decriminalize a conduct, a country must act in accordance to it, because not always all countries share the same historical or cultural roots which, to the last extent, legitimate a tradition or social practice.
On the other hand, Justice O’Connor (2005), in her dissenting opinion to Roper v Simmons, states, “…American law is distinctive in many respects, not least where the specific provisions of our Constitution and the history of its exposition so dictate”. She later recognizes “…this Nation’s evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries.” (p. 19). Equally, as she joined the majority opinion in Bowers v. Hardwick[2], a ruling reversed by the Lawrence et al. v. Texas (2003) judgement, the opinion she joined “…relied on values we share with a wider civilization…” (p. 16). Therefore, O’Connor’s position affirms two main elements: (a) Comparative Law does not pretend to replace or bring national legislation under the rule of foreign laws or solutions, and (b) national legal or social traditions, due to shared values, do not necessarily contradict nor oppose to the accepted ones by the rest of democratic and civilized nations. O’Connor’s reasoning relies on the fact that foreign laws or legal solutions must not be excluded (Roper v Simmons, dissenting opinion, p. 18) from the opinions of a national court (as the Supreme Court). These, instead of playing a correcting or authority role, serve as elements on which judges seek to confirm or innovate, but not dictate, their interpretation of a constitutional section. Thus, she does concede the foreign laws or legal practices the status of comparable to national ones, to the extent the issue at discussion concerns the “…values of civilized society” (Roper v Simmons, dissenting opinion, p. 19).
Likewise, Comparative Law’s second function heavily relies on the ongoing practice by superior courts in mostly common law, rather than civil law[3] systems. According to Barak, this “cross fertilization” (p. 200) is the result of judges who consider foreign law already applied solutions’ or international law instruments to “expand the horizon and the interpretive field of vision” (p. 196). However, comparative law does not replace the internal or local law, as foreign precedents or solutions do only inspire and help the judges’ work. Moreover, before a judge applies a certain solution, it is highly likely to take place a verification of the solution degree of success, after examining precedents from countries with similar legal traditions.
The Roper v. Simmons majority opinion confirms the last hypothesis: “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” (p. 24). A point reaffirmed by Justice O’Connor (2005), in her dissenting opinion to Roper v Simmons, when asserting “…the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency.” (pp. 18-19) This assertion supports that Comparative Law plays a fundamental role in offering judges the elements (foreign jurisprudence and laws), if needed, to assess the solutions given to matters referring to questions strictly or generally connected to the legal tradition shared by many democratic legal systems. Conversely, Justice Scalia (2003) rejects the premise that “…American law should conform to the laws of the rest of the world…” (O’Connor, Roper v Simmons, dissenting opinion, p. 18) as he considers that “…Court’s discussion of these foreign views… is therefore meaningless dicta.” (Lawrence et al. v Texas, dissenting opinion, p. 14) Therefore, his position defends the hegemony of national legal tradition as the main and last reference to the interpretation or resolution of legal issues concerning social values. For this reason, Scalia (2003) affirms foreign laws or jurisprudence must not complement nor influence national jurisprudence as judges are subject to “…American principles…” (Lawrence et al. v Texas, dissenting opinion, p. 22) rather than international opinions whilst solving a matter.
Given the above, Comparative Law offers a clear framework to analyse and understand the dual dominant theories within the Supreme Court of the United States: the liberal and the conservative. Although, liberals (as Justice O’Connor) defend the importance of inspiring jurisprudence in foreign laws due to common civilized values, the conservatives (as Justice Scalia) are reluctant to inspire national jurisprudence on foreign opinions due to supremacy of American legal (and social) traditions over foreign ones. A duality that justifies the need of using the legal systems’ diversity to adapt them to constant social changes, seeking to approach judiciary praxis to the goal of “…rendering to everyone his right”[4] according to Roman jurist Ulpian.
References
539 U. S. Lawrence et al. v. Texas (2003) [Online] Available from: https://www.law.cornell.edu/supct/html/02-102.ZO.html
- Dissenting opinion of Justice Antonin Scalia, 1-21.
- Concurring opinion of Justice Sandra Day O’Connor, 1-8.
543 U. S. Roper, Superintendent, Potosi Correctional Center v. Simmons (2005) [Online] Available from: https://www.law.cornell.edu/supct/html/03-633.ZO.html
- Dissenting opinion of Justice Sandra Day O’Connor, 1-21.
- Dissenting opinion of Justice Antonin Scalia, 1-24.
Barak, A. (2005) Response to The Judge as Comparatist: Comparison in Public Law. Yale Law School Faculty Scholarship Series [Online] paper 3694, 195-202. Available from: http://digitalcommons.lawyale.edu/fss_papers/3694
The Latin Library (2018). Digest of Justinian: Liber I. Web page. [Online] Available from: http://www.thelatinlibrary.com/justinian/digest1.shtml
Geoffrey, S. (2014) An Introduction to Comparative Law Theory and Method. Oxford, Hart Publishing.
[1] See Legrand’s position on Samuel, 2014 (p. 51).
[2] Concurring opinion of Justice O’Connor. Lawrence et al. v. Texas, at 1: “I joined Bowers, and do not join the Court in overruling it.”
[3] See Spain’s Constitutional Court. Sentence 12/2008, of January 29th, FJ 2.
[4] Dig. 1. 1. 10pr: “Iustitia est constans et perpetua voluntas ius suum cuique tribuendi”. Latin version recovered from The Latin Library.