The Florida Journal of International Law published work by Justice Eliezer Rivlin of the Supreme Court of Israel in its most recent issue (21 Fla. J. Int’l L. 1).
Justice Rivlin’s work, titled “Thoughts on Referral to Foreign Law, Global Chainnovel, and Novelty,” examines the use, or lack thereof, of foreign legal authorities by courts around the world. Throughout his thought provoking piece, Justice Rivlin takes aim at such legal luminaries as Judge Richard Posner and justices of both the Canadian and Israeli supreme courts.
Rivlin states, “referral to foreign law does not necessarily mean the adoption of foreign choices or reliance on foreign experiences in reaching a judicial decision. It does mean a better evaluation of competing options, an available source of empirical experience and a source of novel ideas and knowledge.”
Rivlin examines the debate that often occurs when courts in the United States refer to foreign law. The controversy over reference to foreign law, writes Rivlin, often stems from disagreement over the proper approach the U.S. Supreme Court should take towards interpreting the Constitution of the United States.
Ultimately, Rivlin contends that referral to foreign law serves an important goal: overcoming domestic juristic biases. Rivlin explains that status quo biases are hurtful to the development of domestic law when they are based on irrationality or chill the evolution of modern law.
—Mohammad O. Jazil, Editor in Chief, FJIL