The Importance of Legal Traditions in Domestic Courts
C. Raj Kumar, professor and vice chancellor of O.P. Jindal Global University and Dean of Jindal Global Law School, talks about how domestic courts should consider different legal traditions.
The Importance of Legal Traditions in Domestic Courts Well, I mean, as most of us students of law or those who are familiar with constitutional law will recognize that the US Supreme Court does not very rarely look at comparative law, very rarely draw upon principles of international human rights law or international humanitarian law for that matter. There are probably a few judges in the US Supreme Court, notably Justice Briar, who occasionally refer to some principles of comparative law which the decisions of court or other courts. Now, this is also part of the culture and tradition of judicial decision-making in different countries. Now, I mean, I for one would strongly argue that courts increasingly should look at different legal traditions and to see how courts have approached problems. And, you know, it’s interesting. Comparative law or comparative judicial decision-making reference to drawing upon what other courts are doing, this does not necessarily need for the court to actually accept those decisions. We are the first stage where, you know, even to draw upon is problematic for some judges. For example, Justice Collier of the US Supreme Court. Now, he would probably not be in favor of even drawing upon, even examining or considering the judgments of the South African Supreme Court or some other, you know, courts in the world. Now, so the US Supreme Court is an example of how where the issue of comparative judicial decision-making is in a very, very evolutionary stage and there is a lot more work to be done. But there are also courts like the South African Supreme Court and to some extent, the Indian court but also courts in other parts of the common law world, in Australia, where drawing upon foreign jurisprudence is not at all unusual. In fact, if you look at the Indian Supreme Court’s decision in the last 60 years, they have significantly drawn upon and in some ways, sometimes rejecting it, that it may not be applicable for the Indian context, or sometimes accepting it, the US Supreme Court decisions, the court of the House of Lords and the English courts’ decisions, and, for that matter, including courts of other jurisdictions. So the point is that the notion or the concept of judiciary, one country’s judiciary drawing upon the jurisprudence and experience of other countries’ judiciary is indeed a subject matter of huge debate even among scholars. It is not a settled issue. Just as there are people who have a very strong view as to how do we interpret the Constitution, for example. While some people argue that Constitution is a dynamic, evolutionary document and that it’s a living document and it has to be interpreted in tune with the current situation that prevails in the society. There are some others who have a very different view that have to look at what the founders had in mind while formulating the Constitution. Just as that issue also invites a sort of different debate, even this is, but one thing I would say is that while different countries are evolving increasingly, the problems of a legal system, problems a country faces are problems of a legal system. As much as we sometimes think it to be unique and distinctive, in reality they probably are not. Meaning that, in many ways, in quite a number of issues, it is entirely possible that what the US Supreme Court is actually deciding on a particular issue of law is pretty similar to what a South African Supreme Court or an Indian Supreme Court and other court is deciding, and it is, it’s—I would say, it becomes almost a duty and responsibility on the part of learned judges to know what is happening in other countries and other societies. I see this to be a knowledge-enhancing, knowledge development process, and that’s why comparative law becomes very useful when it comes to judicial decision-making.