chapter  5
46 Pages

Mental disposition as a factor impeding recourse to foreign law

Those who object to the use of foreign law by national courts will invoke a series of well-rehearsed arguments in favour of their position. Some are ideological. In the United States, for instance, Justice Scalia recently stated2 that he did not think it was right that ‘approval by “other nations and peoples” should buttress our commitment to American principles any more than (…) disapproval by “other nations and peoples” should weaken that commitment.’ His entire life at the bench has been to oppose even the dialogue with other systems;3 and a number of academics would agree with this position. Other arguments, however, are more pragmatic; and in that sense, they can be surmounted only with technical and empirical evidence. They refer to the judge’s lack of time, lack of expertise, lack of materials in his own language, inability to be up-todate, deep differences in the background of each system (which make borrowing difficult if not dangerous), and so on. All of the above represent well-recognised dangers associated with the enterprise of comparative law and, as such, they have been stressed many times. Though not without some force all, we think, can be addressed if the will is there to look at them rationally on the basis of evidence, not unsubstantiated rumours or false images.