Harvard Law Review Debates Roper and Foreign Authority
Posner wrote the Foreward to this year's review, and his discussion is broader than this one subject. But he has a long section on the "Cosmopolitan Court" that is highly critical of Roper and Lawrence. He argues that "I do not think the citation of these foreign decisions is an accident, or that it is unrelated to moral vanguardism. It marks Justice Kennedy (like Professor Dworkin) as a natural lawyer. The basic idea of natural law is that there are universal principles of law that inform--and constrain--positive law. If they are indeed universal, they should be visible in foreign legal systems and so it is "natural" to look to the decisions of foreign courts for evidence of universality.... To cite foreign decisions as precedents is indeed to flirt with the idea of universal natural law, or, what amounts to almost the same thing, to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience... Strip Roper v. Simmons of its fig leaves--the psychological literature that it misused, the global consensus to which it pointed, the national consensus that it concocted ... and you reveal a naked political judgment."
In his article, Waldron argues that in Roper "Justice Kennedy said that it was 'proper' to take foreign law into account and that referring to the laws of other countries could be “instructive” for the Court’s interpretation of the Eighth Amendment. But he did not explain the jurisprudence behind this view. Nor did the Roper dissenters articulate a theory of citation to foreign law that they could squarely refute; they simply denounced the practice. The theory that is called for is not necessarily a complete jurisprudence. But it has to be complicated enough to answer a host of questions raised by the practice: about the authority accorded foreign law (persuasive versus conclusive), about the areas in which foreign law should and should not be cited (private law, for example, compared to constitutional law), and about which foreign legal systems should be cited (only democracies, for example, or tyrannies as well). The theory has to be broad enough to explain the use of foreign law in all appropriate cases: too many scholars call for a theory that will explain the citation of foreign law only in constitutional cases. The theory has to be persuasive enough to dispel the serious misgivings that many Americans have about this practice: why should American courts cite anything other than American law? Above all, it has to be a theory of law."
Finally, in Young's article, he argues that "Roper’s 'denominator problem' concerned whether foreign jurisdictions should count in Eighth Amendment cases. Justice Kennedy’s claim that a domestic consensus rejected the juvenile death penalty was profoundly implausible given that twenty states retained the practice. But by shifting focus from the domestic to the international plane — where the United States stood as one jurisdiction against all the rest — the Roper majority made an implausible claim of “consensus” into a plausible one. Defenders of looking to foreign law typically describe that practice as a search for “persuasive authority” — an attempt, in Justice Breyer’s words, to “learn something” from a “judge in a different country dealing with a similar problem.” I argue here, however, that creating consensus by including foreign jurisdictions in the Eighth Amendment denominator goes considerably further and, in fact, gives the practices of those jurisdictions authoritative legal weight."