Can better law be married with corrective justice or evil laws?

• Author: Peari, Sagi
• Position: II. Better Law as a Primary Rule: Marriage with Corrective Justice? B. Marriage Wrecker: The State Equality Principle through Conclusion, with footnotes, p. 537-563

2. Marriage Wrecker: The State Equality Principle

   Briefly stated, the state equality principle points to the normative equality between various states and respectively accepts the normative equality between their public legal institutions. For an exposition of this principle, one can suggest drawing attention to Douglas Laycock's influential work, which discusses the American constitutional limitations of the choice of law question. (103) More than twenty years ago, he argued that the better law approach in its essence violates the United States Constitution. (104) As Laycock explained, the Constitution imposes certain restrictions on the choice of law process based on the Due Process Clause of the Fourteenth Amendment (105) and on the Full Faith and Credit Clause of Article IV. (106) Since, according to the Full Faith and Credit Clause, each state has equal authority to the other forty-nine states, the laws of all American states are of equal status. (107) From here follows the argument that no court of a given state can decide that its law is better or worse than that of another state. (108) Thus, if we follow Laycock's example, a Texas court cannot insist that its law is better than California's. (109) In other words, the very nature of the better law approach is unconstitutional.

   Although Laycock's argument explicitly addressed choice of law cases within the United States, (110) I shall suggest extending it to the global arena and to what has been termed the "state equality" principle (or as it is also sometimes called, the "sovereign equality" principle (111)). The significance of this principle must not be underestimated. Nowadays, this principle is considered to be no less than "canonical", (112) and a "foundational principle of the international legal order." (113) The United Nations Charter has explicitly identified "the principle of the sovereign equality of all of its Members" (114) and the United Nations re-emphasized it in its General Assembly Resolution as a core principle of contemporary international order. (115)

   The intellectual roots of the state equality principle lie in the eighteenth century work of Emmerich de Vattel. As Vattel states:

   Since men are by nature equal, and their individual rights and obligations the same, as coming equally from nature, Nations, which are composed of men and may be regarded as so many free persons living together in a state of nature, are by nature equal and hold from nature the same obligations and the same rights. Strength or weakness, in this case, counts for nothing. A dwarf is as much a man as a giant is; a small Republic is no less a sovereign State than the most powerful Kingdom. (116) As Vattel explains, the principle of state equality is not about inequality in terms of territorial size, natural resources power, or other distributive considerations. Rather, in similarity to private individuals, this inequality ultimately relates to the legal status of the states themselves. The similarity between the above-mentioned constitutional principle of the Full Faith and Credit Clause is clear, but not surprising. As has been shown, Vattel's works had a significant influence on the American Founders. (117) Furthermore, this conception of equal legal status of states lay at the basis of the contemporary international order that was established in the Westphalian Peace Treaties of 1648. This order recognizes a multitude of states as independent and legally equal political entities. (118)

   The normative argument regarding the conceptual analogy between private individuals and states was taken up and extended by Kant in his Doctrine of Right and Perpetual Peace. (119) Kant insists that only through abstraction from such considerations as wealth, gender, or the desires that lie at the root of actions, is it possible to conceive interactions between individuals in a purely juridical manner. Since this argument is extended to the international arena, it explains why Vattel's "dwarf' and "giant" states are equal. Through abstraction from particular features of given states such as territorial size or even internal structure, Kant juridically equalizes the states. As with private individuals, states, under this conception, are situated in juridical equal relation to each other.

   This argument has further implications. Since states are juridically equally situated, the three constituents of the state (i.e., the legislative, judicial, and executive branches) follow this equality too. The classic example of this institutional equality can be seen with respect to the "recognition question" in private international law. Since the courts of different states are equally related to each other, the operative product of the adjudicative process--the judgment--bears the same normative content. This is indeed traditional and contemporary courts' position with respect to foreign judgments. According to this position, provided that the judgment of the foreign court has met a certain reasonable (and fairly liberal) test of jurisdiction acquisition--the so-called "jurisdictional competence" test--it is as good as a judgment of the domestic court and has to be recognized as a general rule of thumb. (120) The general position of the courts in this respect is to avoid any merit-based review of foreign judgments. Accordingly, the fact that one of the parties was under-compensated, overcompensated, or even had been granted a remedy that is not known in the domestic law does not serve as a basis for challenging the foreign decision. (121)

   The same point applies with respect to the choice of law question. Since states are situated in equal juridical relation to each other, this equality applies to their legislative provisions or judicial precedents of the foreign systems. Because of state equality, the very essence of better law is at odds with the fundamental principle of international order--state equality. (122) Consider Cheshire, North, and Fawcett's striking rejection of better law. As they put it:

   [I]t [the better law approach] is a dangerous factor to use in the choice of law process because it confuses the issue of the reform of the substantive law of one country which is that of choosing the most appropriate law to govern a dispute with links with two or more countries. It is certainly not the task of a judge in one country to try to reform the law in another. (123) This fundamental objection to better law does not address the judge's capability to execute comparative analysis of concerned provisions, but rather his or her legitimacy to engage in this analysis in the first place. This objection challenges the very capacity of the judicial public authority to engage in this kind of analysis without challenging the fundamentally equal structure of international order.

   This objection is relevant only with respect to the better law approach. No other choice of law methodology has put itself in the position of conceptually challenging the equal structure of international order. (124) Neither as a technical bureaucrat who enforces the normative principle of state sovereignty over his or her territory (as with the sovereignty justification of classical choice of law methodology), nor as a follower of the parties' united choice of the framework to adjudicate their case (as with the choice-based justification of the classical approach), nor as an enforcer of states' extraterritorial policies (as under the modern methodology), does the judicial authority question the normative equality of international order. The better law approach presents, however, a different case. By executing a comparative evaluation of private law provisions, the better law judge challenges the very nature of judicial authority as an inherent part and representative of international order.

   This indeed seems to be a position of corrective justice with respect to better law. Having developed a detailed conception with respect to the universal structure and content of the private law categories of contract, property, and so on, (125) corrective justice is situated in a strong position to provide normative objective criteria for the substantive evaluation of the different private law provisions of various states. Yet, its underlying Kantian foundations reject a full-blown appeal to the better law approach. The real reason, however, for the incompatibility of corrective justice with better law is based on the notion of state equality that follows from the Kantian conception of the international order as comprising normatively equal states. The rejection of the better law approach is not because of the judges' inability to comparatively evaluate the merits of the involved laws (something which they are quite capable of doing), but rather because of the infringement of the state equality principle that conceives all laws (whether domestic or foreign) in normative equal relation to each other. No matter how 'Tad" the domestic or foreign private law provision may be, corrective justice does not purport to replace it with its ideal form and content. These should be left for legislative reform and judicial changes to existing precedent. Corrective justice simply is not willing to trump positive law.

   3. Better Law as a Subsidiary Doctrine: Marriage with Evil Laws?

1. The Notion of Evil Laws in Legal Theory

   The notion of so-called "evil laws" has always occupied a central place in Western legal theory. In a nutshell, its point is that there are legislative provisions that are so odious or barbaric that judges refuse to give effect to them. Throughout the literature on evil laws, one can trace three primary examples of such provisions. First and foremost, the various monstrous statutes during the regime of Nazi Germany are taken as a clear reflection of evil laws. (126) Second, the various discriminatory provisions against blacks in apartheid South Africa (127) are another example. Finally, the early Fugitive Slave...