Has the common law once shared by the various English colonies been supplanted by an individual, national common law for each nation? Of course, statutory law has to some extent tread over all of these common law schemes. Nonetheless, in an interesting comment by Simon Chester to an article on Slaw’s magazine website by Gary Rodrigues, he writes:
Like its immediate successor CJ, it contains footnotes to Canadian common law and English cases, showing that 110 years ago, there really was a North American common law culture.
The CJS is entirely American.
The first edition of CJS, Corpus Juris, did in fact cite to Canadian and English cases. There must have been a conscious decision to eliminate this practice when CJS was introduced around 1936-37.
Supreme Court decisions invoking foreign precedent have been a controversial subject the last several years.
John Yoo has written on this topic and argued that “reliance on such decisions breaks the relationship between the people and their government as expressed in the Constitution, because foreign courts are interpreting a different document within a different constitutional and political context.”
However, more convincing is Justice Ginsburg who commented that citing a foreign precedent does not mean the court considers itself bound by foreign law. It simply means that the Court was influenced by the reasoning of the foreign court. Perhaps it is thought that the indispensable nation cannot look beyond the border for judicial interpretations?
“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked, as reported in The New York Times.
She noted that the Canadian Supreme Court might be the most cited court internationally. Should legal treatises and encyclopedias be more attentive to, at the least, the decisions of other common law jurisdictions? Or are the laws of these various jurisdictions now considered to be too divergent to justify citation?