In April 2018 I will visit Tamil Nadu National Law School in Tiruchirappalli (Trichy), India to teach a short course on international law. In preparing for the class I am focused on a number of issues including this question: what is the value of a US perspective on law, in general, to Indian law students and lawyers? The question seems more pressing today as States, including the United States and India, seek to assert exclusive control overs matters that had been influenced by international or foreign standards.
Arguably, US legal developments, such as legislation, judicial opinions, or the approach US courts take to opinions, are of little value to the world’s largest democracy. Since 1950 India has had its own robust Constitution. The US Constitution had a limited influence on it, such as with regard to individual rights and judicial review. The constitutional advisor Mr. B.N. Rau met with US Supreme Court Justice Felix Frankfurter, who advised him about concerns due process. 1 Nevertheless, the Constitution of India is a document of the people of India and has numerous features that address matters unique to India.
Further, the Indian judiciary is well-established and highly engaged on a daily, if not hourly, basis. The bar of India is vibrant and sophisticated. Each week it seems Indian lawyers raise a major matter in the Supreme Court of India by way of Public Interest Litigation. The great Indian legal system can manage and thrive without regard to legal developments in a country 8,000 miles away.
Also, the question pushes me to look critically at the US legal system. Are there immutable principles that can be seamlessly translated beyond the United States? In re-reading Marbury v. Madison, one is reminded of Chief Justice John Marshall’s admonition that “it is emphatically the province and duty of the judicial department to say what the law is.” 2 Once taken for granted, this principle appears fragile. For example, President Donald J. Trump has expressed disdain for judges and courts on a number of issues, e.g., Deferred Action for Childhood Arrivals (DACA) and Immigration Executive Orders.
Further, it is ironic that an American is asking about the influence of US law abroad when certain US judges and scholars routinely argue that foreign law should have no say in the United States. Perhaps the tables should be turned: what is the relevance of the law of India to US law students and lawyers?
These observations scratch the surface of what could evolve into a complex analysis. If US law is irrelevant to India then I might as well stay in Texas and not share my insights or learn new ones from Indian students and professors.
Practicalities may, however, steer an engagement between the two legal systems. Indian students pursue the LL.M. degree at US law schools. These students are likely required to take a course on the US legal system. If they intend to sit a bar examination they are required to take other US law courses. After graduation some students have obtained jobs in the United States; others returned to work at firms in India or secured legal jobs in one of the world’s major commercial centers, such as London or Dubai. For law students and lawyers in India who are seeking post-graduate education in the US surely insights into American law are highly relevant.
Yet, the number of Indians studying law in the United States is small compared to the number of students pursuing law degrees at the many Indian law faculties. A pragmatic approach to my question provides only limited guidance. It also ignores issues at the heart of legal analysis. First, the United States and India share the common law tradition. Both countries emerged from British domination after fierce resistance. The value of individual liberty within the context of shared circumstances cannot be understated. Second, while subject to varying interpretations, their respective Constitutions reflect shared principles, such as a healthy regard for individual rights. Indeed, India courts have cited decisions of the US Supreme Court on constitutional issues. Third, and an issue at the forefront of my upcoming class, both India and the United States are parties to a number of multilateral treaties. Treaties seek clarity by establishing a single standard applicable to state parties. Courts in both countries benefit from an understanding of each other’s interpretation of these treaties.
The legal systems of India and the United States operate largely independently within their own constitutional design and are grounded in different cultural and societal norms. Yet they share similarities. In this increasingly inter-related world perspectives on law are shaped by a variety of sources. Given the richness of certain US legal standards and the approach by which they have been shaped, it stands to bear that a US perspective can at least inspire the next generation of Indian lawyers if not reinforce their existing beliefs.
Susan L. Karamanian is the Former Associate Dean for International and Comparative Legal Studies and Burnett Family Professorial Lecturer in International and Comparative Law and Policy, George Washington University Law School; former Provost and Chief Academic Officer, American University of Sharjah, UAE. She thanks GW Law International and Comparative Law Librarian Herb Somers for his help with the citations.