C. Raj Kumar on The US Supreme Court
Professor C. Raj Kumar is spearheading the initiative to establish India’s first global law school known as the Jindal Global Law School as a part of the proposed O.P. Jindal Global University to be located outside New Delhi (Sonipat, Haryana) and less than an hour from the Supreme Court of India in the heart of New Delhi. He was a Rhodes Scholar at the University of Oxford, UK, where he obtained his Bachelor of Civil Law degree; a Landon Gammon Fellow at the Harvard Law School, where he obtained his Master of Laws degree, and a James Souverine Gallo Memorial Scholar at the Harvard University. He also obtained a Bachelor of Laws degree from the University of Delhi, India; and a Bachelor of Commerce degree from the Loyola College of the University of Madras, India. Professor Kumar has held consultancy assignments in the field of human rights and governance. He is Consultant to the National Human Rights Commission in India. He has been a Consultant to the United Nations University, Tokyo; United Nations Development Programme; and the International Council for Human Rights Policy, Geneva. He has advised the Commission to Investigate Allegations of Bribery or Corruption in Sri Lanka and the National Human Rights Commission in India on issues relating to corruption and good governance.Professor Kumar’s areas of specialization, include, human rights and development, corruption and governance, law and disaster management, comparative constitutional law and legal education. He has more than hundred publications to his credit and has published widely in journals and law reviews in Australia, Hong Kong, India, Japan and the U.S. His three co-edited books are Human Rights and Development: Law, Policy and Governance, Tsunami and Disaster Management: Law and Governance, and Human Rights, Justice and Constitutional Empowerment.
Kumar: Well, I mean, as most of us students of law or those who are familiar with constitutional law will recognize that the US Supreme Court does not, you know, does not… very rarely look at comparative law, very rarely draw upon principles of international human rights law or international humanitarian law, for that matter. There are probably a few judges in the US Supreme Court, notably Justice Briar, who occasionally refer to some principles of comparative law, which the decisions of court, other courts. Now, this is also part of the culture and tradition of judicial decision-making in different countries. Now, I mean, I, for one, would strongly argue that courts increasingly should look at different legal traditions and to see how courts have approached problems. And, you know, it’s interesting, comparative law, or comparative judicial decision-making, reference to drawing upon what other courts are doing, this does not necessarily need for the court to actually accept those decisions. It’s… We are the first stage where, you know, even to draw upon is problematic for some judges. For example, Justice Collier of the US Supreme Court. Now, he would probably not be in favor of even drawing upon, even examining or considering the judgments of the South African Supreme Court or some other, you know, courts in the world. Now… So US Supreme Court is an example of how where the issue of comparative judicial decision-making is in a very, very evolutionary stage, and there is a lot more work to be done. But there are also, you know, courts like the South African Supreme Court and, to some extent, the Indian court but also courts in other parts of the common law world, in Australia, where drawing upon foreign jurisprudence is not at all unusual. In fact, if you look at the US, the Indian Supreme Court’s decision in the last 60 years, they have significantly drawn upon, and, in some ways, sometimes rejecting it, that it may not be applicable for the Indian context, or sometimes accepting it, the US Supreme Court decisions, the court of the House of Lords and the English courts’ decisions, and, for that matter, including courts of other jurisdictions. So the point is that the notion or the concept of judiciary, one country’s judiciary drawing upon the jurisprudence and experience of other countries’ judiciary is indeed a subject matter of huge debate even among scholars. It is not a settled issue. Just as there are people who have a very strong view as to how do we interpret the Constitution, for example. While some people argue that Constitution is a dynamic, evolutionary document and that it’s a living document and it has to be interpreted in tune with the current situation that prevails in the society, there are some others who have a very different view that have to look at what the founders had in mind while formulating the Constitution. Just as that issue also invite a sort of different debate, even this is, but one thing I would say is that while different countries are evolving increasingly, the problems of a legal system, problems a country faces are problems of a legal system. As much as we sometimes think it to be unique and distinctive, in reality they probably are not. Meaning that, in many ways, in quite a number of issues, it is entirely possible that what the US Supreme Court is actually deciding on a particular issue of law is pretty similar to what a South African Supreme Court or an Indian Supreme Court and other court is deciding, and it is, it’s… I would say, it becomes almost a duty and responsibility on the part of learned judges to know what is happening in other countries and other societies. I see this to be a knowledge-enhancing, knowledge development process, and that’s why comparative law becomes very useful when it comes to judicial decision-making.
C. Raj Kumar says domestic courts should consider different legal traditions.
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