The Influence of U.S. Jurisprudence on the Supreme Court of Pakistan

Abstract

The article is a study of citation of United States law by the judges of the Pakistani Supreme Court in their decisions. The ultimate purpose is to understand the rationale behind the use of foreign law by domestic courts. However, as a first step in the purpose this article will limit itself to use of U.S. Law by the judges of the Supreme Court. The article will try to answer the question whether the citation of foreign law (in words of Justice Scalia) is “unprincipled and opportunistic” or does it represent the manifestation of iusgentium (law of nations) on constitutional development in Pakistan. The concept ‘law of nations’ (iusgentium) is not used in the narrow sense to mean international law. Instead it denotes a far broader concept, and as a result less precise, comprising of something similar to the general consensus of mankind, or common law of mankind, on issues dealing not just with sovereigns, but with legal issues generally; such as rights, property, contracts, tort(s) and crime. Iusgentium represents the near consensus on legal issues amongst most jurists, lawyers and judges in the world and as such represents an invaluable resource for judges and lawmakers to answer particular problems that they may face in their own jurisdictions. The article will thus be a first step and further research will shift focus on use of foreign law other than U.S. law by Pakistani Supreme Court justices. Therefore, the article will help in answering several questions: the need to borrow from and reasons for borrowing from foreign sources; the problems borrowing may face and cause; why it may be problematic and resisted; and the effect it has on constitutional development in Pakistan; and whether use of foreign sources is “unprincipled and opportunistic” or does it represent the manifestation of iusgentium.