Aristotle, Cicero and Cardozo: a perspective on external law.

• Author: Bonventre, Vincent Martin
• Position: Symposium: "Outsourcing Authority?": Citation to Foreign Court Precedent in Domestic Jurisprudence

It has been my honor to be the faculty advisor to the Albany Law Review for the last fifteen years. Our law review, among the oldest student edited legal publications, (1) is also among the very best. This claim is not based on some ethereal or intangible reputation, but on solid data. Since annual comprehensive rankings began several years ago, the Albany Law Review has consistently been among the top several percent of all legal publications in the number of times it has been cited--i.e., the number of times it has served as a source or authority for legal scholars writing for other journals. (2) We are proud of that.

I am particularly proud of our members who are, of course, responsible for the law review's success. Members such as James Leary, our symposium editor who organized this event, and Seth Gilbertson, our editor-in-chief, are among those who deserve special mention. On behalf of them and the entire Albany Law Review, I welcome you to another exceptional symposium--an annual event sponsored by the Law Review. (3)

1. AN ANCIENT ISSUE

   The subject of today's symposium is not only a hot political topic, but truly one of the critical issues of judicial decision making for the future of our fundamental law. And yet, placed in historical perspective, it is hardly new. It is part of an age-old debate in law and jurisprudence, political science and philosophy, and other areas of study as well.

   The issue, concerning the consideration of foreign law in deciding questions and determining content of our own domestic law, is at least two millennia old. In ancient Greece, the relationship between internal and external law was the subject of intense scrutiny. (4) It had already been so by the time of Aristotle, who, in the 4th Century B.C., collected the constitutions of nearly 200 city states. (5) As he did with everything else, Aristotle classified them, critiqued them, contrasted them and identified common principles and practices and understandings of justice. (6) Passing from political science to legal philosophy, Aristotle distinguished between the particular law of each community or nation and the more universal law and commonly understood principles that crossed community lines and national boundaries. (7)

   Not solely abstract theorizing, Aristotle lectured advocates arguing before judicial tribunals. Argue not simply the "the letter of the written [particular] law," he advised. Instead, insist upon [the] greater equity and justice" of common principles of universal law to "the full purpose of law." (8)

   Of course, as we know, Aristotle eventually had to free from Athens to save his life, because he was suspected of foreign sympathies and of being insufficiently Athenian. (9)

   But later in Rome, Aristotle's concept of local law informed by common principles gained increased currency--especially those such as Cicero who, incidentally, had studied in Athens prior to his emergence as Rome's greatest orator, lawyer and defender of constitutional government. (10) Moreover, as a practical matter, a rigid parochial law would have been unworkable for an empire like Rome that extended across diverse societies and cultures--each of whom had their own local law. (11) It was no great leap from this practical reality to Cicero's notion of jus gentium--legal principles common to civilized peoples and applicable not solely as a matter of relations with foreign peoples, but applicable also to the local or home law of the nation. (12)

   On the other hand, the practical historical reality is that when it was in Rome's interest to enforce its own local laws and its sovereignty, it certainly did so, and often brutally so, regardless of grander notions about the common principles and practices of others. (13)

2. THE AMERICAN REPUBLIC

   Nearly 2,000 years later, the Founders of our nation and Framers of our Constitution, were well versed in classical thought and history. (14) Indeed, those most prominent in drafting and debating the Constitution were graduates of a predominantly classical college education or were self-educated in the same classical texts (15)--including the works of Aristotle and Cicero. (16) Many of the delegates to the Constitutional Convention prepared themselves by reviewing ancient history and political theory, (17) and the convention proceedings and ratification debates are, not surprisingly, filled with references to the classics. (18) The...