One of the ironies of our time is that economists have been discovering the importance of law, as such — as distinguished from the specific merits of particular laws — while judges seem increasingly to be losing sight of the rule of law.
"I can hardly imagine any laws so bad, to which I would not rather be subject than to the caprice of a man," John Stuart Mill said more than a century and a half ago.
Modern economists usually have in mind the economic advantages to a society of having a framework of known, enduring, and dependable rules — the rule of law — within which economic activities can be planned and long-term commitments and investments can be made. But Mill saw the benefits of living under known rules to extend far beyond economic benefits.
Mill spoke of the danger of having to lead "a life of anxiety lest by some of my acts I should unwittingly infringe against a will which had never been made known to me." Some of today’s vague and ambiguous anti-trust, anti-discrimination, and environmental laws strike like lightning out of the blue to hit people who had no idea that they were doing something wrong.
The Constitution of the United States expressly forbad retroactive laws — "ex post facto" laws, it called them — but judicial decisions creating new rights, duties, and nuances out of thin air are for all practical purposes ex post facto law.
"Evolving standards" are also ex post facto law, for who can know in advance how someone else’s standards are going to evolve, much less which evolving standards will get a majority of the votes in the Supreme Court?
The recent practice of using foreign laws as bases for judicial decisions about American laws likewise turns law into the caprices that John Stuart Mill feared more than he feared bad laws.
There is no such thing as generic foreign law. There are the specific laws of France and the very different specific laws of Saudi Arabia and of hundreds of other countries around the world. It is a matter of individual prejudice or caprice which of these laws any given judge chooses to cite.
Justice Anthony Kennedy, for example, referred to foreign laws as a reason for declaring an American state’s law unconstitutional because it permitted the execution of murderers who were not yet 18 years old, which some foreign governments do not. In other words, laws enacted by the elected representatives of an American state can be wiped out if people in Spain or New Zealand think otherwise.
Not only does this prevent the millions of people who want to be law-abiding citizens from knowing which laws to abide by, it deprives American voters of the right of self-government through elected representatives that is at the heart of American society.
If our votes decide only which candidates get which offices, but not what laws and policies those elected representatives can enact for us to live under, our elections will become more and more like placebos, with the real power being exercised from the judicial bench by people we never voted for.
Liberal judicial activists have been citing laws from countries more to the political left than the United States is, but there is no reason why other judges at other times could not cite very different laws to justify or rationalize decisions that could not be justified or rationalized on the basis of the Constitution of the United States that all judges have sworn to uphold.
In one of Justice Clarence Thomas’ opinions, he noted in passing that the distinguished British 18th century legal scholar William Blackstone had said that people condemned to death should be executed within 48 hours. Surely this is not an idea that liberal judicial activists would want to import and Justice Thomas did not rely on it.
But there is no reason in principle why this or any other ideas from abroad should be any less eligible to be imported than the ideas from foreign countries which have already been cherry-picked from an almost endless assortment of possibilities.
The question is not even whether particular foreign laws should become American law. It is not possible for them to become American law, in the sense of rules known in advance, unless they are openly enacted into law by elected officials, rather than imposed by judicial fiat after the fact.