But What If Foreign Law Is Very Bad?

Whenever I blog about why American courts often should consider foreign law — as in the recent Pakistani Law in U.S. Courts thread — some commenters ask: What if the foreign law is very bad? What if it’s sexist, for instance if it treats men and women differently in issuing divorce decrees? What if it requires that the losing party get his hand chopped off? What if it requires American courts to themselves discriminate, for instance by applying a legal rule that discriminates based on the sex or religion of the parties?

These are important and interesting questions, and they are why American courts do not apply a general rule that they will categorically enforce all foreign judgments or apply all foreign laws, whatever their content. American courts refuse to enforce rules that they see as sufficiently against the “public policy” of the state (or of the U.S. generally). But this doesn’t keep American courts from enforcing other judgments and applying other laws. It’s not an all-or-nothing matter — either you apply all foreign laws (e.g., decide whether immigrants are married based on the law of the place they married, and also chop off people’s hands if foreign law calls for that) or apply no foreign laws.

Contract law offers a helpful analogy (though, as always with an analogy, it’s just an analogy, not an identity). If two parties make a deal, American courts will usually enforce that deal. Sometimes they’ll enforce the deal even through “specific performance,” which is to say ordering the parties to go through with the deal and not just giving money damages. (There are limits on specific performance that are unrelated to the public policy exception, but we’ll set them aside there.) Will they enforce a deal that calls for chopping off a hand? No. Will they enforce a contract to commit a crime? No. Will they enforce a contract that calls for a court to interpret religious doctrine? Almost certainly not. Will they enforce a contract that calls for a court to exclude certain beneficiaries based on race or sex? Probably not. Will they enforce the great bulk of contracts that courts are asked to enforce? Certainly.

So courts do not have all-or-nothing “enforce all contracts” or “enforce no contracts” rules. They have a strong presumption in favor of enforcing contracts using damages awards, and they also enforce some kinds of contracts using specific performance, but they have had to come up over time with often complicated principles about what is enforceable and what isn’t enforceable. Developing and implementing such principles isn’t cost-free — but it’s better for economic and social life, and fairer to the parties, than having all-or-nothing rules.

The same is true for enforcing foreign law. American courts, for instance, generally enforce foreign money judgments, for instance when a plaintiff who won an award in England or Argentina or Saudi Arabia comes to an American court to execute the award against American assets of an American company. That’s vital to the effective functioning of the international economy, and to the competitiveness of American companies, since foreign companies might well be uninclined to do business with American companies if it’s hard to enforce contracts with those companies. They also enforce these judgments even if they were entered without a civil jury trial; though the constitutional right to civil jury trial is protected in federal cases by the Seventh Amendment and in state cases by state constitutional provisions, nearly all foreign countries don’t have jury trials in all or most civil cases, and it would be too burdensome on commerce to refuse to enforce such jury-trial-less judgments.

But American courts won’t enforce such foreign money judgments if they were awarded using procedures that the court considers as sufficiently unfair, for instance if the foreign court lacked jurisdiction over the defendant, or denied defendant any opportunity to be heard. Likewise, American courts won’t enforce (for instance) a foreign judgment based on a foreign libel law that wouldn’t comport with American First Amendment standards. (There’s now a statute related to such libel awards, but some American courts adopted such a rule even before that statute was enacted.) Note, though, that the refusal to apply one law or to enforce one set of judgments from a country (e.g., English libel judgments) doesn’t mean courts will refuse to apply all laws or enforce all judgments from that country.

Likewise, American courts generally look to the law of the place where a marriage or a divorce took place — at least if the parties were living in that place at the time — to determine whether the marriage or divorce is valid. That’s vital to dealing sensibly and fairly with people who come to America from a foreign country, and who should be seen as bringing their familial status with them. Here, it probably makes sense to follow such foreign law even if it embodies some procedural rules that we would consider improper or discriminatory. If, for instance, the law of some country lets men easily divorce their wives, but makes it much harder for women to divorce their husbands, we still have to recognize those foreign divorces: It’s no favor to a divorced woman to render her divorce invalid, and render her second marriage bigamous and therefore void, because other women were denied the ability to initiate divorces. Similarly, American courts tend to accept foreign marriages among first cousins, or even of uncles and nieces, as well as some not-very-underage foreign marriages.

On the other hand, American courts generally don’t recognize polygamous foreign marriages (except for some purposes), and may refuse to recognize certain child custody decrees, or property settlements involving American residents. Courts again refuse to apply all-or-nothing rules, and instead try to come up with sensible lines between what is allowed and what is forbidden — again, much like they do with regard to domestic contracts.

I like clear, simple rules. I often tend to side with those who prefer such rules over those who prefer vaguer standards. But sometimes clear, simple rules — apply all foreign law, apply no foreign law, enforce all contracts, enforce no contracts — just don’t work. Then mushier in-between rules become the most sensible option. As Einstein is sometimes paraphrased,

Everything should be made as simple as possible — but not simpler.