On International precedents and the SCOTUS

'Highlander' responded to my request for commentary on the article/commentary I posted here. His thoughtful reply is in full below;


The common law process is based on the notion of precedent. The law in Vancouver is the same as the law in Victoria even though a different judge is sitting. Precedent can be binding but does not need to be so. The decisions of the SCC (Supreme Court of Canada) are binding on all lower courts; the decisions of the BCCA (British Columbia Court of Appeal) are binding on the lower courts in B.C. Courts of concurrent jurisdiction can not "bind" each other but there is considerable deference to what a brother or sister judge has previously ruled on a similar point of law. Thus there is precedent in the Victoria decision on X which the Vancouver court will take into consideration and is, usually, loath to decide differently. There are situations where, particularly with a novel or controversial issue, the views of outside jurisdictions are sought. So the decision of an Ontario court might be presented to a judge in B.C. not as a binding precedent, which it is not, but as a pursuasive one. This is the crux of the debate that is occuring in the U.S.

Our own SCC is now often cited by foreign courts because we have a familiar common law system based on not only the British model but also shaped, increasingly, by our rather American notion of Constitutional supremacy embodied in the Charter. South Africa's new Constitution is, in many respects, a copy of ours. The idea of seeking pursuasive precident from other learned courts is increasingly an issue because of the newfound availability of these decisions. Their value is still only pursuasive but as foreign courts are more likely to be pusing the envelope on certain issues than American courts there is often more fodder overseas than in the lower 48.

The real problem for the U.S. Supreme Court is that it is increasingly being made irrelevant. While the U.S. is the world's most powerful nation, it is increasingly less its most progressive or dynamic. The U.S.S.C. really doesn't say much that is interesting anymore. Only the most vile, anti-democratic states would seek to follow the American example on civil liberties, abortion or the death penalty. Our own court and the European Court of Human Rights are the big two on those issues. Aboriginal peoples look to our courts or those in Australia, New Zealand and South Africa for guidance.

These are some of my thoughts.

-Highlander