International Journal of Constitutional Law Advance Access first published online on December 20, 2007
This version published online on January 8, 2008
International Journal of Constitutional Law, doi:10.1093/icon/mom033
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Law as affiliation: "Foreign" law, democratic federalism, and the sovereigntism of the nation-state
* Arthur Liman Professor of Law, Yale Law School. This essay relates to ongoing work on law's relationship to the nation-state, including Judith Resnik, Living Their Legal Commitments: Paideic Communities, Courts, and Robert Cover, 17 YALE J.L. & HUMAN. 17 (2005) [hereinafter Resnik, Living Their Legal Commitments]; Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry, 115 YALE L.J. 1564 (2006) [hereinafter Resnik, Law's Migration]; and Judith Resnik, Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, EMORY L.J. (forthcoming 2008). I have learned a good deal from discussions with Bruce Ackerman, Karen Barrett, Seyla Benhabib, Paul Berman, Dennis Curtis, Vicki Jackson, Linda Kerber, Charles Reich, Reva Siegel, Katherine Sklar, Susan Silbey, Jeremy Waldron, and Angela Ward, as well as the many had long ago with Robert Cover. Thanks are also due to those who participated in the symposium at Emory Law School on The New Federalism: Plural Governance in a Decentered World, and at the session of the Society of Women in Philosophy in New York in April of 2007, as well as to several current and former research assistants, including Laurie Ball, Sue Meng, Michelle Morin, Chavi Keeney Nana, Julia Schiesel, Kate Andrias, Elizabeth Brundige, Joshua Civin, Joseph Frueh, Paige Herwig, Johanna Kalb, Marin Levy, Julie Suk, and Bertrall Ross. Email: judith.resnik{at}yale.edu
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Abstract |
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This essay explores the role that law plays in marking the identity of a nation-state and the concerns—which I gather under the term sovereigntism—that animate interest in dictating what position "foreign" law ought to play as a domestic resource in adjudication. In some countries such as the United States, opposition to "foreign" law has a long pedigree, exemplifying an exclusivist form of sovereigntism. In contrast, South Africa's Constitution is also sovereigntist but inclusively so, directing its jurists—as an expression of that nation's identity—to consider international law. After showing why exclusivist sovereigntism cannot succeed as a practice in barring law's migration and how it is wrong as a theory of democracy, I commend engaging in important questions raised by sovereigntism: whether the import and export of law ought to be regulated by national law, what legal actors ought to be active in the trade in law, and how sovereigntism illuminates human aspirations to use law to make distinctive identities for nation-states.