Prof. Scarberry writes:
> When the issue to be decided by a US court involves international law, as
in
> the maritime case from which Jack quotes, then decisions of foreign
nations'
> courts may be analogous to decisions of sister circuits. The foreign
courts
> are interpreting and attempting to apply the same body of law, and
> uniformity is an important goal. This does not justify giving similar
> 'strongly persuasive' weight to decisions of foreign courts as to domestic
> legal matters.
COMMENT: What we now call "international law" is not exactly the same as
the "law of nations" (jus gentium). "International law" was a phrase first
coined by Jeremy Bentham in 1780, and it referred only to jus inter gentes
(i.e., "law between nations"). See Jeremy Bentham, Principles and Morals of
Legislation (published not until 1789). Strictly speaking, "international
law" is only a subset of the law of nations. The Constitution uses the
phrase "the law of nations." It refers not only to law governing relations
between nations (or states) but also to nation's own domestic legal
affairs. James Wilson was very clear about the application of the law of
nations to domestic affairs. See James Wilson, Lectures on Law, Of the Law
of Nations, ¶ 1 (1791) ("Some seem to have thought, that [the law of
nations] respects and regulates the conduct of nations only in their
intercourse with each other. A very important branch of this law 'that
containing the duties which a nation owes itself' seems to have escaped
their attention. 'The general principle . . . of the law of nations, is
nothing more than the general law of sociability, which obliges nations to
the same duties as are prescribed to individuals.'") (Wilson may have been
referring to Bentham in this passage when he says "Some seem to have
thought . . . .") A perfect example of this is the lex mercatoria that
is a subset of the law of nations governing private transnational
commercial affairs. As I have mentioned in an earlier posting, the
Interstate Commerce Clause (which is misnomer -- the clause addresses
commerce "among the several states") is governed by the law of nations --
specifically -- but not exclusively -- by the lex mercatoria. This is
consistent with the whole Commerce Clause addressing commerce with foreign
states and Indian tribes that was also governed by the law of nations.
Therefore, the law of nations "as ascertained . . . by the general usage
and practice of nations; or by judicial decisions recognizing and enforcing
that law" does govern the U.S. own domestic affairs. United States v.
Smith, 5 U.S. (Wheat.) 153 (1820). The law of nations as ascertained by
foreign state practice and foreign judicial decisions is controlling on
U.S. domestic legal matters insofar as (i) the U.S. has acquiesced to the
customary international legal norm (i.e., not expressly objected to it when
it was emerging) and (i) the facts involved in a particular case are
sufficiently analogous to an instant case -- as is the case in any use of
case precedent.
Francisco Forrest Martin
