Why is it that New Zealand's Supreme Court thinks that foreign law helps us know what our law should be?

Pretend you are a judge ... one who has worked your way up to sitting on New Zealand's highest court. And you have a case in front of you. It is a dispute between (at least) two parties, who want you to say what you think is the correct legal resolution to their conflict.

A part of your job as a judge therefore involves you deciding what the law in New Zealand is (at least, as it applies to the particular dispute in front of you). And deciding what the law in New Zealand is will require you to look in a bunch of different places: at the statutes passed by Parliament and any further rules/regulation made under those statutes; at past decisions by New Zealand's courts insofar as they dealt with similar legal issues; maybe at New Zealand's international treaties/obligations; etc, etc.

But in order to decide what the law in New Zealand is (at least, as it applies to the particular dispute in front of you), do you as a judge look to see what the is law in (say) Australia, or Canada, or the United States, or the United Kingdom, or Japan, or the Seychelles, etc, etc? If so, why are you looking there ... what does it matter that (say) the Canadians deal in a particular way with the legal issue you have to consider? After all, your job as a judge is to understand, apply and even sometimes make law for New Zealand - so just what is it that you are getting from these other places to help you in your task?

This is a question that isn't often asked in New Zealand. As a matter of practice, our judges (especially our Supreme Court judges) do look to the jurisprudence of other nations in order to determine the right (or at least, the best) legal outcome for particular cases. But just why they do that, and what they hope to achieve by doing so, isn't really spelt out.

Which is kind of interesting, because you might think that the practice of looking to (say) the reasoning of Canadian judges to decide that the law in New Zealand requires a particular outcome to a dispute requires some sort of explanation. I mean, we know why New Zealand judges look to statutes to see what the law is - parliamentary sovereignty and all that. And the doctrine of precedent gives previous New Zealand court decisions some measure of authority. But the decisions of non-New Zealand courts? What's the justification for looking at them?

It's against this background that I'm posting (with his permission) a chunk of a paper I was sent by Dr Brian Flanagan, who lectures at National University of Ireland at Maynooth. As you'll see, he and a colleague have done some interesting empirical work on this question which I think is worth making available to a wider audience.

You can download the full paper if you are so inclined, but the extract below contains the crux of his findings. Feel free to post comments/questions in the comments below - I'm hoping Dr Flanagan will drop by and give his thoughts on them.

 

Features of NZ Use of Foreign Law

The coincidence of a culture of independence, of conflicts with electorally legitimated actors, of a broadly common law tradition, and of the privilege of finality, seems to generate a distinctive judicial role.  Seeking to help to explain the use of transnational legal argument by those occupying that role, Sinead Ahern and I surveyed 43 judges from the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States.  We published our findings as "Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges" (2011) 60 International & Comparative Law Quarterly 1.   While the survey’s overall response rate was 42%, all six members of the inaugural New Zealand Supreme Court (Gault, Keith, McGrath, Blanchard, Tipping JJ; Elias CJ) responded, the latter four of whom remain on the court. 

In order to report the responses of NZ Court in isolation it was necessary to first the secure the consent of the participating NZ judges.  I wrote to the NZ participants in early October 2011 and promptly received their consent to publish findings specific to their court.  Analysis of the NZ specific data was assisted by the correlations revealed in the larger survey, which at times suggest a possible causal relationship between judicial attitudes that, given the size and broad consensus on the NZ Court, would otherwise hidden.

The data establish fairly clearly that foreign judges form a significant professional reference group for all NZ judges: each noted that they felt, "a sense of high professional esteem for Supreme Court judges from other jurisdictions", with all but one attributing this esteem to their possession of "equivalent professional responsibilities".  A follow up question asked: Is this sense of professional esteem greater than that which you feel towards subordinate judges in your own jurisdiction?  All but one judge agreed that they held supreme court judges from other jurisdictions in greater professional esteem than their domestic subordinates.  Likewise, most said that personal contacts with foreign supreme court judges contributed to their analysis of domestic rights and that of five different speeches on rights that they would prioritize attendance at that given by the foreign judge. 

The esteem in which foreign judges are held by NZ judges is reflected in the citation of foreign law in NZ judgments.  Thus, asked about the frequency with which they refer to the law of other national jurisdictions in their judgments on rights, all judges characterized themselves as "regular" users.  Similarly, asked about the frequency with which they use comparative material in justifying their legal conclusions on rights, all but one answered "regularly".  NZ esteem for foreign judges is also reflected in the importance attributed to international human rights law, with 4 judges placing it ahead of the "domestic constitution" as, "the tool most useful for identifying the protection to be given to rights asserted in your court".

On the comparability of other jurisdictions, responses ranged from specifying no particular jurisdictional criteria (two judges) to specifying that a jurisdiction be democratic (4 judges) to insisting that it must also fall within the common law tradition (two judges).  More generally, all but one characterized the NZ Constitution as "living", i.e., that, "succeeding generations should be able to draw new or revised meanings therefrom".  As regards stare decisis, on the other hand, half the Court settled on promoting "a sense of predictability" as the main reason behind their use of precedent. 

In our ICLQ article, we considered two prominent hypotheses about the judicial use of foreign law in the interpretation of individual rights : the reinforcement of professional status and the enhancement of legal conclusions.  We also considered the null hypothesis, or what we described as "citational opportunism": that foreign law is used to indicate the merit of outcomes in whose determination it has not in fact had an input.  The respective hypotheses appear mutually exclusive, not in the sense that a given judge may not sometimes compare to reinforce professional status, while at other times to enhance the quality of his legal conclusions, etc., but in the sense that they will explain exclusively rather than jointly a given use of foreign law.  Drawing on the larger survey in tandem with the NZ specific data, we may test the relative success of these hypotheses with respect to the NZ Court. 

Take the hypothesis that judges are seeking to be rewarded with professional approval or acceptance from their counterparts elsewhere.  The hypothesis is consistent with the differential between the professional esteem in which NZ judges hold their foreign counterparts and their domestic subordinates.  In the larger survey, we found a statistically significant correlation between the prioritization of attendance at a foreign judge’s speech on rights and the justificatory citation of foreign law.  The collective NZ prioritization of the foreign judge thus supports the theory that NZ judges cite foreign law for social reward. 

Similarly, in the larger survey, we identified a statistically significant correlation between the expression of a greater sense of professional esteem for foreign judges and characterizing international human rights law as the tool most useful for resolving rights questions.  We speculated that international human rights law may be seen by some as providing a socially rewarding opportunity to engage in the interpretation of common legal instruments.  The social reward hypothesis thus also appears positively supported by the large number of NZ judges who characterize international human rights law as the tool most useful for resolving rights questions.  

As against this hypothesis, however, the response to Question 9 reveals little attention to professional peer approval or acceptance (Q 9):

Which, if any, of the following considerations might justify the citation of comparative material in the interpretation of domestic rights? (Please rate in order of importance) 8 = highest.

1. The gains to your state’s international standing from a visible judicial engagement with foreign ideas and attitudes.
2. It provides an additional source of impartial guidance (such as precedent), thus facilitating objectivity in judicial interpretation.
3. It provides an additional factual source, thus enabling the court to make more accurate predictions as to the effects of challenged laws and rights.
4. It provides an additional source of legal authority, thus increasing the chances that a legal authority can be found to match what you already believe to be the best result from a policy perspective.
5. It assists the work of establishing enlightened approaches to rights in emerging democracies.
6. The importance of upholding comity between judges internationally.
7. It demonstrates that the judicial review of legislation for compatibility with rights also happens in other respectable democracies.
8. Other—please specify.

The most important consideration justifying citation of comparative material for NZ judges was its status as a "source of impartial guidance (such as precedent)".  Half the NZ Court settled on this justification as being the most important, a choice which proved somewhat less popular among apex judges generally, albeit still the most common (30%).  Reflecting its status as the second most popular choice among apex judges generally, two judges specified (4) as most important, with another rating it second most important.  Conversely, the considerations most closely related to comparison for social reward, i.e., comparison for the sake of comity between international judges (6) or for the sake of gains to one’s state’s international standing from a visible judicial engagement with foreign ideas and attitudes (1), received negligible attention. 

We turn now to the epistemic basis for judicial comparison: that judges look to foreign law because they feel it increases their chances of reaching the best legal conclusion.  This is the picture suggested by the literature emphasizing the role of foreign law as persuasive authority.

The epistemic hypothesis is supported by the indication by all but one judge that they make indirect use of their legal knowledge of other countries.  Of course, such usage does appear in tension with the principle that legal reasons for judgment must be cited.  In this regard, one of the additional comments may be instructive: noting his use of, "the democratic elements in great US decision"’, with, "little express acknowledgement", one judge compared this practice to his attention, both as advocate and as judge, to the writings of a prominent twentieth century legal theorist.   For this NZ judge at least, it may be that, just like philosophical writings or artistic expression, foreign court opinions may contribute to forming a legal conclusion not by any persuasive authority, but purely by their actual persuasiveness.  Where an idea contributes purely on foot of its persuasiveness, its source does not count in favour of the conclusion reached, and, hence, requires no acknowledgement on the principle that legal reasons for judgment are to be cited. 

Equally, the epistemic hypothesis is consistent with the fact that most judges say their approach to comparison is affected by a concern that they may not fully appreciate the legal and factual context surrounding material from other jurisdictions.  As against it, however, there is the failure of two judges to indicate adherence to general criteria in assessing a jurisdiction’s comparability, and the less than emphatic endorsement of transnational material as either a "source of impartial guidance (such as precedent)" or an "additional factual source... enabling... more accurate predictions as to the effects of challenged laws and rights".

Finally, there is the suggestion that foreign judges and legal systems are a faux reference group; that they are used to advertise the merit of decisions in whose determination they in fact had no input.  The notion that foreign law is sometimes cited by NZ judges merely because indications of correspondence with other jurisdictions are useful for persuading domestic observers of the merits of a decision is supported by Question 9, for which a third of the Court stated that the most important reason for resort to comparative material is that it increases the chances that a legal authority can be found to match what one already believes to be the best result from a policy perspective.  Indeed, as an admission of false advertising, there would seem to be a bias against revealing this view – even in a confidential survey.

Taken as a whole, the data do not decisively favour any of the three examined hypotheses, i.e., that foreign law is used to reinforce professional status, to enhance the quality of legal conclusions, or to advertise the merit of conclusions in whose formation it in fact had no input.  Each hypothesis has definite support; in this there is little or no appreciable difference with the evidence available in respect to common law apex judges generally.  Thus, whereas foreign law often appears to contribute to NZ judges’ conclusions on rights, sometimes that contribution will derive from an associated social reward, and at other times the contribution itself may be illusory.