To Consider Or Not To Consider Foreign Law

Posted on July 11, 2009 by Markus Stocker, Recommended 0 | Recommend

Today, I read the following answer given by Peter V. Kunz — professor for Business and Comparative Law at the University of Bern, Switzerland — to a question in an interview with NZZ (translated from German,)

Yes, American courts can ignore Swiss law — currently, there is a pronounced tendency in the USA to deliberately not consider foreign law. Incidentally, we in Switzerland too, ignore in our jurisdiction foreign law that conflicts with our basic beliefs, for example Islamic law that permits stoning for adultery. According to American law it is permitted to violate the Swiss bank secret.

I don’t want to debate whether the act of stoning a human being parallels with the act of violating the bank secret, but I do appreciate that a court cannot compromise on human dignity. However, how are we expected to respect and cooperate with each other if it is considered OK to simply ignore foreign law, perhaps because we don’t understand it, or we don’t like it, or it is just a too big hurdle?

The law of a country shapes, sometimes over centuries, the beliefs, worldviews, value hierarchy, life and behavior of a people. How can we administer justice without accounting for the law of others, without respect for the beliefs of others, without trying everything that is necessary to understand and internalize what others value in particular when the value hierarchy of others is known, communicated, pleaded?

What is it that permits the convenience of non-consideration to be a moral and legal option?

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