No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 April 2015
Can a man excuse his practices to the contrary [of the law] because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
In 1990, the Supreme Court faced the Free Exercise claim of Alfred Smith and Galen Black, both of whom were denied unemployment compensation because they had been fired for misconduct. Smith and Black, however, argued that such a denial violated their First Amendment rights because the alleged misconduct—smoking peyote—was part of a Native American Church ceremony. Overturning the Oregon Supreme Court, the Court struck down the Sherbert balancing test, arguing that an individual cannot excuse himself from a law merely because it “contradicts” his “religious convictions.” To do so, the Court continued,
would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
Such a conclusion would “contradict[] both constitutional tradition and common sense.”
This article explores whether United States law, in actuality, does not allow individuals to become “laws unto themselves.” While legal scholars in exploring this question have typically focused on the Supreme Court's decision in Boy Scouts of America v. Dale, this article will focus on a more obscure and rarely discussed area of United States law: the foreign compulsion defense. I will argue that it is the foreign compulsion defense which demonstrates that the law does allow individuals to raise themselves above facially neutral and generally applicable laws when they are faced with an irreconcilable legal conflict between foreign and domestic law.
1. Empl. Div. v. Smith, 494 U.S. 872, 879 (1990) (emphasis added) [hereinafter Smith].
2. Sherbert v. Verner, 374 U.S. 398 (1963).
3. Smith, 494 U.S. at 879 (citing Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940)).
4. Smith, 494 U.S. at 885, citing Reynolds v. U.S., 98 U.S. 145, 166-167 (1878).
5. Smith, 494 U.S. at 885.
6. For one such response to this criticism, see McGinnis, John O., Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence of Social Discovery, 90 Cal. L. Rev. 485, 557 (2002)CrossRefGoogle Scholar.
7. For an attempt at such an argument, see Michael A. Helfand, Locke's Theory of Toleration and the Believer's Point of View (manuscript on file with author).
8. Restatement (Third) of Foreign Relations § 441, cmt. a (1987).
9. This is not to say that many governmental schemes, most notably democratic schemes, were intended to have this effect. However, the fact that citizens all too often play the role of legal subject as opposed to legal author has been explored and exposed by scholars most of whom have expressed hope that there might be a way to remedy the situation. See generally Cover, Robert M., Nomos and Narrative, 97 Harv. L. Rev. 4 (1983)Google Scholar; Michelman, Frank, Law's Republic, 97 Yale L.J. 1493 (1988)CrossRefGoogle Scholar; Benhabib, Seyla, The Rights of Others (Cambridge U. Press 2004)CrossRefGoogle Scholar. In addition, much of the theory advanced by advocates of deliberative democracy has been motivated by similar concerns. See Gutmann, Amy & Thompson, Dennis, Democracy and Disagreement (Belknap Press 1996)Google Scholar; Fishkin, James S., Democracy and Deliberation (Yale U. Press 1991)Google Scholar; Ackerman, Bruce & Fishkin, James, Deliberation Day (Yale U. Press 2004)Google Scholar. For similar concerns expressed during the first half of the 20th century, see generally Lippmann, Walter, Public Opinion (Macmillan 1949)Google Scholar; Edelman, Murray, The Symbolic Uses of Politics (U. IL Press 1964)Google Scholar.
10. Hobbes, Thomas, Leviathan (Penguin Books 1968)Google Scholar (originally published 1648). This position is typically associated with Max Weber, who famously argued that the sovereign state is an entity that has the “monopoly of the legitimate use of coercive power.” Max Weber, 2 Wirtschaft und Gesellschaft ch. 9, 9 (4th ed., Mohr 1956) (as cited in Baade, Hans W., The Operation of Foreign Public Law, 30 Tex. Intl. L.J. 429 (1995)Google Scholar). See also Blau, Peter M., Critical Remarks on Weber's Theory of Authority, 57 Am. Pol. Sci. Rev. 305, 308 (1963)CrossRefGoogle Scholar. For a similar depiction of governmental power, see Nozick, Robert, Anarchy, State and Utopia 17 (Basic Books 1974)Google Scholar.
11. Boy Scouts Am. v. Dale, 530 U.S. 640 (2000).
12. Smith, 494 U.S. at 879 (citing Reynolds v. U.S., 98 U.S. 145, 166 (1879)).
13. Dworkin, Ronald, Law as Interpretation, 60 Tex. L. Rev. 527 (1981–1982)Google Scholar; Dworkin, Ronald, Taking Rights Seriously 14–80 (Harv. U. Press 1977)Google ScholarPubMed; Dworkin, Ronald, Law's Empire 45 (Belknap Press 1986)Google Scholar.
14. Hart, H.L.A., The Concept of Law 204 (Oxford U. Press 1961)Google Scholar.
15. I use the term text broadly to denote any thing capable of being interpreted.
16. See e.g. Dworkin, Ronald, Model of Rules II, in Taking Rights Seriously 46 (Harv. U. Press 1977)Google ScholarPubMed.
17. We may want to think of this intuition in Kantian terms. Unless the legal subject lives in the Kingdom of Ends, an unlikely scenario, the legal subject is unable, under these circumstances to self-legislate. Kant, Immanuel, Groundwork of the Metaphysics of Morals (Gregor, Mary ed., Cambridge U. Press 1997)Google Scholar; see e.g. Hassner, Pierre, Immanuel Kant, in History of Political Philosophy 581 (Strauss, Leo & Cropsy, Joseph eds., 3d ed., U. Chi. Press 1987)Google Scholar.
18. Cf Lanzetta v. N.J., 306 U.S. 451, 453 (1939) (“No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.”).
19. See Greenawalt, Kent, Law and Objectivity 89 (Oxford U. Press 1995)Google Scholar (“The most importantly quality is that individuals and organizations build up expectations on the basis of the system…. [These] are the types of expectations on which people rely in planning their lives.”).
20. In defining the attributes of law, Leopold J. Pospisil explains:
Any decision that can be called legal…has to be accepted by the parties to a dispute, or its provisions have to be forced on them if they protest and resist. Such a decision obviously cannot be handed down by everyone in a society. It requires an individual who possesses enough power to enforce the verdict—by persuasion or by psychological or physical compulsion. A person or group of persons possessing such power I shall call a legal authority.
Pospisil, Leopold J., The Ethnology of Law 30 (Cummins Publg. 1978)Google Scholar. However, this is not to say that all sociologists have come to the same conclusion. Roger Cotterrell, in his critique of Ronald Dworkin, has argued “Legal interpretation has become a matter for all kinds of informed, organized groups pursuing interests considered to be enshrined in or affected by legal doctrine.” Cotterrell, Roger, Law's Community 288 (Clarendon Press 1995)Google Scholar. Indeed, Cotterrell emphatically asserts, “Law's community of interpretation is not one but many.” Id. at 289. Yet even in his scathing critique of legal philosophers who envision a single body of legal authorities who are the sole interpreters of the law, Cotterrell still writes these “informed, organized groups” who also engage in legal interpretation do so “often merely to persuade the deciding authority to adopt, for whatever reason, regulatory policies favourable to or favoured by the group concerned.” Id. Cotterrell himself notes the dichotomy between the “deciding authority” and other groups that suggest interpretations to the deciding authority. In this way, Cotterrell's sociological analysis comports with the analysis we have outlined above. While only the legal authorities can render an authoritative decision, any individual or group of individuals is entitled and may be even encouraged to agitate in favor of his or her own view of how the law should be interpreted. But such agitation does not amount to a legal interpretation in the authoritative and binding sense; see also Fiss, Owen M., Objectivity and Interpretation, 34 Stan. L. Rev. 739, 749–750 (1982)CrossRefGoogle Scholar (noting that the legal critic, unable to persuade others of his point of view, “remains free to insist that [his] moral, religious, or political principle take precedence over the legal. He can disobey.”).
21. In this regard, describing certain types of perceived norms as chosen and others as unchosen may confuse. Choice is typically not an either/or proposition; people, when making a decision, typically exercise a degree of choice, depending on the various contexts in which the decision is undertaken. Nothing in this article is meant to convey that moral or customary commitments are wholly chosen; that is far too simplistic an approach. What this article does argue is that there are elements of choice that enter into moral and customary commitments which give an individual experiencing such commitments a certain degree of freedom. And it is these elements of choice that are not available to the legal subject. In this way, the conflicted legal subject experiences norms that are fundamentally more unchosen than those of his moral or customary counterparts. This is not simply a difference in degree. The argument presented sees the absence of these sources of choice from the calculus of the legal subject as radically altering our philosophical and policy evaluations of the legal subject's conundrum.
22. Hendrix, Scott H., Deparentifying the Fathers: The Reformers and Patristic Authority, in Tradition and Authority in the Reformation (Variorum 1996)Google Scholar.
23. Hendrix borrows the term from the field of family therapy. See id. at 57, n. 10.
24. See id. at 57 (“This freedom enabled [the reformers] to adopt a balanced stance toward the fathers which acknowledged both their limitations and their contributions without granting to the fathers underserved authority.”).
25. This historical development is important to understanding the relationship between religious authority and interpretive freedom. It demonstrates that while religious authorities are often vested with the exclusive power to interpret and determine the obligations of its religionists, this need not always be the case. Thus passing that interpretive power on to the people is an option available to religious authorities, an option, on Hendrix's account, exercised by the leaders of the Reformation.
26. See e.g. Fiss, supra n. 20, at 749-750 (noting that the legal critic, unable to persuade others of his point of view, “remains free to insist that [his] moral, religious, or political principle take precedence over the legal. He can disobey.”); Greenawalt, supra n. 19, at 88 (“The judge thus has a type of authority that other modern interpreters lack; the individual who loses must act as the court indicates whether or not he is persuaded and whether he has any inkling of the content of the interpretive judgment.”).
27. See Soper, Philip, The Ethics of Deference (Cambridge U. Press 2002)CrossRefGoogle Scholar for this distinction and the articulation of a middle road between these two options.
There is another branch of arguments in favor of legal obligation that hope to eliminate consent from the equation. Such theories hope to extract some sort of natural duty to follow the dictates of law that prevents the legal subject from choosing which consequences he ought to pursue. As we will see, both accounts of legal deference we explore leave the final decision regarding what option to pursue up to the legal subject; the legal subject can choose sanctions or compliance. Jeremy Waldron presents a view of natural duties that focuses on the legal subjects' need to choose justice. Thus the legal subject is not free to choose what he hopes to pursue; on Waldron's account, he has a moral obligation to pursue justice. Waldron, Jeremy, Special Ties and Natural Duties, 22 Phil. & Pub. Affairs 3, 28 (1993)Google Scholar. Legal authorities, argues Waldron, are the best coordinators of justice and therefore there exists a moral imperative to act in such a way to allow political institutions to coordinate justice. Id. Presumably, deferring to political institutions is necessary for the political institutions to coordinate justice. Suffice it to say, I find such arguments unconvincing. It remains wholly unclear why we should accept that we have such moral obligations and it seems eminently reasonable to reject the existence of such obligations. To that extent, the argument of this paper may hinge on the rejection of the Waldron model. And to the extent the foreign compulsion defense exists, United States law may also reject such an analysis.
28. Raz, Joseph, Authority and Justification, 14 Phil & Pub. Affairs 3, 18–19 (1985) (describing what Raz termed the “normal justification” thesis)Google Scholar; see also Raz, Joseph, Authority, Law, and Morality, in Ethics in the Public Domain (Oxford U. Press 1994)Google Scholar.
29. Raz, Authority and Justification, supra at 22-29.
30. Soper, supra n. 27, at 35-50.
31. Id. at 43.
32. See Regan, Donald, Authority and Value: Reflections on Raz's Morality of Freedom, 62 S. Cal. L. Rev. 995, 1030 (1989)Google Scholar (concluding that “Raz's indecision about cases of clear error reveals the tension in his whole analysis of authority”). See Raz's response in Raz, Joseph, Facing Up: A Reply, 62 S. Cal. L. Rev. 1153, 1166 (1989)Google Scholar; see also Soper, supra n. 26, at 38-42.
33. Soper, supra, n. 27, at 38.
34. Id. at 43.
35. Kramer, Matthew H., Requirements, Reasons, and Raz: Legal Positivism and Legal Duties, 109 Ethics 375, 392 (1999)CrossRefGoogle Scholar.
36. Id.
37. See e.g. Hart's use of the gunman counter-example in Hart, supra n. 14, at 6 (asking if sanctions are what makes a legal obligation, then should we not think of a gunman holding up a bank as also enunciating a legal obligation).
38. Supra n. 35, at 392.
39. Id. at 394.
40. McMahon, Christopher, Autonomy and Authority, 16 Phil. & Pub. Affairs 303, 316 (1987)Google Scholar.
41. Hobbes, Thomas, Leviathan 186Google Scholar.
42. To clarify, I mean here to pick out theories of legal consequentialism and not moral consequentialism.
43. Raz located individual choice in the rationale for deference. We choose to defer because we prefer the legal authorities interpreting and applying reasons relevant to us.
44. See Nozick, supra n. 10, at 262-265 (arguing that just because an individual has only one option does not mean he is precluded from choosing that option); see also supra n. 21.
45. To be clear, I mean to use the term self-interpretation not as an interpretation of the self, but as the legal subject's own interpretation of his legal obligations.
46. I use the term “punishment” loosely in that on McMahon-like accounts, if the legal subject chooses self-interpretation he undermines the legal regime and makes it more likely that society will revert back to a state of nature. This is a mechanism not proactively imposed by a legal authority, but a mechanistic consequence that flows from the nature of legal legitimacy. See McMahon, supra n. 40.
47. The intuition that legal authority uses sanctions in order to punish, and therefore prevent, self-interpretation is the driving force behind much of Robert Cover's program of legal pluralism. According to Cover, the legal battlefield pits two impulses imbedded in the legal enterprise—the jurisgenerative and the jurispathic impulses—against each other. The jurisgenerative impulse pinpoints the capacity of distinct groups to formulate particular interpretive narratives which create “common meanings for the normative dimensions of their common lives.” Cover, supra n. 8, at 15. In opposition stands the jurispathic impulse which denotes the state's legal machine task of suppressing alternative legal interpretations:
It is remarkable that in myth and history the origin of and justification for a court is rarely understood to be the need for law. Rather, it is understood to be the need to suppress law, to choose between two or more laws, to impose upon laws a hierarchy. It is the multiplicity of laws, the fecundity of the jurisgenerative principle, that creates the problem to which the court and the state are the solution.
Id. at 40. This suppression of non-statist interpretations of the law is the reason why the state imposes, what Cover refers to as, violence on its citizens who seek to deviate from the statist interpretations of legal obligations. See Cover, Robert M., Violence and the Word, 95 Yale L.J. 1601, 1606 (1986)CrossRefGoogle Scholar (“If legal interpretation entails action in a field of pain and death, we must expect, therefore, to find in the act of interpretation attention to the conditions of effective domination”).
48. This requirement was first codified in Article 47 of the Swiss Banking Law of 1934, which states:
1. Whoever divulges a secret entrusted to him in his capacity as officer, employee, authorized agent, liquidator or commissioner of a bank, as representative of the Banking Commission, officer or employee of a recognized auditing company, or who has become aware of such a secret in this capacity, and whoever tries to induce others to violate professional secrecy, shall be punished by a prison term not to exceed six months or by a fine not exceeding 50,000 Swiss francs.
Bundesgesetz uber die Banken und Sparkassen of Nov. 8, 1934 (Banking Law of 1934), implemented in Verordnung of May 17, 1972 (Ordinance), and Vollziehungsverordnung of Aug. 30, 1961 (Implementing Ordinance) (cited in Jones, C. Todd, Comment, Compulsion Over Comity: The United States' Assault on Foreign Bank Secrecy, 12 Nw. J. Intl. L. & Bus. 454, 504 n. 37 (1992))Google Scholar. Other important Swiss statutes are now implicated in such analysis. See e.g. Minpeco, S.A. v. Conticommodity Serv., Inc., 116 F.R.D. 517 (S.D.N.Y. 1987) (discussing a variety of statutes that could lead to liability for disclosure); see also Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958).
49. For one such instance of conflict between Panamanian non-disclosure laws and the IRS, see First Natl. City Bank N.Y. v. IRS, 271 F.2d 616 (2d Cir. 1959).
50. See id.
51. For a recent analysis of this conflict, see Jones, supra n. 48, at 454; see also Brown, Lenore B., Note: Extraterritorial Discovery: An Analysis Based on Good Faith, 83 Colum. L. Rev. 1320 (1983)CrossRefGoogle Scholar.
52. This problem is different from the problem of clear error we discussed above. When examining the conclusion of any one of the legal authorities, the legal subject will be unable to discern a mistake. As a result, there is no way for him to know whose legal demands to reject. Thus, even if Raz were willing to argue that in cases of clear error legal authority dissipates, he would still not be able to advise the legal subject in conflict because it is not obvious which one, or if either, of the legal authorities has erred.
53. To be sure, this is not actually the case.
54. I use the term internal point of view not necessarily in the same way intended by H.L.A. Hart, supra n. 14, at 90. See Coleman, Jules, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory 204 n. 30 (Oxford U. Press 2001)Google Scholar (suggesting that the phrase “internal point of view” might best be understood as “the committed point of view”). Here and throughout the paper I use the term simply to denote taking the point of view of the legal subject.
55. The constitution has embraced a version of this principle, which famously serves as the rationale behind the fair notice requirement under the Due Process Clause: “[T]he purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law.” City of Chi. v. Morales, 527 U.S. 41, 58 (1999); see also Hill v. Colo., 530 U.S. 703, 732 (2000) (noting that “[a] statute [is] impermissibly vague … if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits”); Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926) (stating “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”).
56. If Raz was to remain consistent in applying his service conception of authority, then he should agree that legal obligation falls by the way side in the case of clear error. See Regan, supra n.28.
57. This is in contrast with Jeremy Waldron's account which claims that the legal subject has a moral obligation to pursue justice. Such a pursuit, argues Waldron, can best be achieved by deferring to legal authorities. Thus on Waldron's account, the law does give the legal subject an organizing principle for action. See supra n. 27.
58. After the 1985 football season, Ronnie Lott, the Hall of Fame safety for the San Francisco 49ers, was told by his doctors that an injury to his left pinky could force him to miss a number of football games. In response, Lott famously gave up a piece of his left pinky so as to avoid the possibility of missing any time on the playing field. See Miller, Ira, No Tip Needed to Understand Lott, S.F. Chron. E2 (07 26, 2000)Google Scholar. The lesson of the story—it is difficult to anticipate what a particular individual's preference might be regarding unfortunate consequences.
59. We will return to this point in Sect. VII.B.
60. I term morality secondary not because it is necessarily of any lesser value. Our analysis of interpretation, however, does indicate its secondary nature, in that the moral subject participates in the interpretation of his own moral obligations. However, I am not arguing anything about the quality of moral obligations from the fact that I have termed them secondary. I use the term merely to ease differentiation.
61. Hilton v. Guyot, 159 U.S. 113, 164 (1895).
62. Restatement (Second) of Foreign Relations Law § 40 (1965).
63. Restatement (Third) of Foreign Relations Law §§ 403, 441, 442 (1987) [hereinafter Restatement].
64. Id.
65. Id. at § 403(3).
66. The various circuits have also articulated lists of considerations for rendering such a decision. In Timberlane Lumber Co. v. Bank of Am., 549 F. 2d 597, 614 (9th Cir. 1976), the Ninth Circuit ruled that courts, in deciding whether to cede to international comity concerns, should weigh the following: (1) the degree of conflict with foreign law or policy; (2) the nationality or allegiance of the parties and the locations or principal places of business of corporations; (3) the extent to which enforcement by either state can be expected to achieve compliance; (4) the relative significance of effects on the United States as compared with those elsewhere; (5) the extent to which there is an explicit purpose to harm or affect American commerce; (6) the foreseeability of such effect; and (7) the relative importance to the violations charged of conduct within the United States as compared with conduct abroad. In Mannington Mills v. Congoleum Corp., the Third Circuit added three more considerations to the list: (1) the availability of a remedy abroad; (2) the possible effect on foreign relations; and (3) whether an order for relief imposed abroad would also be acceptable if imposed in the United States. Mannington Mills v. Congoleum Corp., 595 F. 2d 1287, 1297-1298 (3d Cir. 1979).
67. In contrast to the Timberlane-Mannington Mills balancing test, the D.C. Circuit crafted a test that examined the reasonable basis for each country's jurisdiction, but did not weigh the relative importance of the competing interests in adjudication.
We are in no position to adjudicate the relative importance of antitrust regulation or nonregulation to the United States and the United Kingdom. It is the crucial importance of these policies which has created the conflict. A proclamation by judicial fiat that one interest is less “important” than the other will not erase a real conflict.
Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 949 (D.C. 1984). In turn, the D.C. Circuit ruled that courts should balance the following considerations: (1) the relative significance of effects in the United States; (2) the extent to which there is explicit purpose to harm or affect American commerce; (3) the foreseeability of such effect; (4) the relative importance to the violations charged of conduct within the United States as compared with conduct abroad; and (5) the nationality or principal business locations of the parties. Id. at 949 n. 145. Thus the D.C. Circuit explicitly rejected two of the factors listed by Restatement § 403(g), (h): “the extent to which another state may have an interest in regulating the activity,” and “the likelihood of conflict with regulation by other states.” Id. at 949 n. 146.
68. Turner Ent. Co. v. Degeto Film GmbH, 25 F.3d 1512, 1519 n. 10 (11th Cir. 1994).
69. Ramsey, Michael D., Escaping ‘International Comity’, 83 Iowa L. Rev. 893, 893 (1998)Google Scholar.
70. See Diorinou v. Mezitis, 237 F.3d 133, 143 (2d Cir. 2001); see also Guyot, 159 U.S. at 202 (inquiry concerning “fraud in procuring the [foreign] judgment or any other special reason why the comity of this nation should not allow it full effect”); Victrix S.S. Co., S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713 (2d Cir. 1987) (comity prevails if foreign judgment “does not prejudice the rights of United States citizens or violate domestic public policy”): Gordon & Breach Sci. Publishers S.A. v. Am. Inst. Physics, 905 F. Supp. 169, 179 (S.D.N.Y. 1995) (“It is primarily principles of fairness and reasonableness that should guide domestic courts in their preclusion determinations.”); Restatement (Third) of Foreign Relations § 482 cmt. b (“[A] particular case may disclose such defects as to make the particular judgment not entitled to recognition.”).
71. Indeed, as we will discuss in the next Section, this new foreign compulsion category was grounded in a radically different rationale, seeking not to secure international relations, but protect defendants.
72. Interamerican Refining Corp. v. Texaco Maracaibo, Inc., 307 F. Supp. 1291, 1295-1296 (D. Del. 1970).
73. O.N.E. Shipping, Ltd. v. Flota Mercante Grancolombiana, S. A., 830 F.2d 449, 450-451 (2d Cir. 1987).
74. Bryant v. Intl. Sch. Serv., Inc., 502 F. Supp. 472, 490-491 (D.N.J. 1980)
There was nothing in Iranian law and there were no requirements of the Iranian authorities which compelled ISS.… Those were actions and policies of ISS and neither reflected sovereign decisions of the Iranian government nor were compelled by the Iranian government. Thus those actions and policies are not protected by … the defense of foreign compulsion.
See also Seltzer, Randi, Comment, The Erroneous Interpretation of the Foreign Compulsion Defense in the ADEA: Mahoney v. RFE/RL, Inc., 23 Brooklyn J. Intl. L. 655, 669 (1997)Google Scholar.
75. Restatement § 441 cmt. c.
76. Watchmakers, 1962 U.S. Dist. LEXIS 5816, *152-153 (S.D.N.Y. 1962) (finding that no government compulsion existed because antitrust activities were not required by Swiss law).
77. Restatement § 441 cmt. c.
78. 396 F.2d 897, 902 (2d Cir. 1968) (requiring the German branch of a U.S. bank to produce documents necessary for trial).
79. Restatement § 441, Reporters' n. 3.
80. See Restatement § 403 for the balancing factors for applying international comity.
81. Hawk, Barry E., Special Defenses and Issues, Including Subject Matter Jurisdiction, Act of State Doctrine, Foreign Government Compusion and Sovereign Immunity, 50 Antitrust L.J. 559, 571 (1981)Google Scholar; Waller, Stephen, Redefining the Foreign Compulsion Defense in U.S. Antitrust Law: the Japanese Auto Restraints and Beyond, 14 L. & Policy Intl. Bus. 747, 787 (1982)Google Scholar; Warner, Michael A. Jr., Strangers in a Strange Land: Foreign Compulsion and Extraterritorial Application of United States Employment Law, 11 NW. J. Intl. L. & Bus. 371, 379–383 (1990)Google Scholar; Hawes, Steven J., Note, The Sovereign Compulsion Defense in Antitrust Actions and The Role of Statements by Foreign Governments, 62 Wash. L. Rev. 129, 143 (1987)Google Scholar.
82. Interamerican Refining, 307 F. Supp. at 1298.
83. Indeed, it is this emphasis on protecting the defendant and not considering the concerns of the competing jurisdiction that differentiates foreign compulsion from international comity. This distinction has become even more central since the Supreme Court's decision in Hartford Fire Ins. Co. v. Cal., 509 U.S. 764 (1993), where the court introduced a requirement that there must exist a “true conflict” between jurisdictions in order to invoke international comity. Such a requirement metamorphisized the international comity mechanism, making it mirror much of the technical legal apparatus as foreign compulsion. Thus, both international comity and foreign compulsion require a true legal conflict between competing jurisdictions and, when the act in question is domestic, require balancing the Restatement § 403 considerations for adjudicating the conflict. However, as we have just noted, the motivation behind the two doctrines radical differ as international comity considers the ramifications of adjudicating the conflict on the foreign jurisdiction while foreign compulsion emphasizes the defendant's needs as he faces conflicting legal norms and will incur sanctions for non-compliance with the law of each jurisdiction. In turn, the balancing changes in the foreign compulsion context as courts investigate how irreconcilable the legal conflict is for the defendant.
84. It is thus not surprising that the concept of ijtihad—often defined as “independent reasoning” or “interpretation”—remains a contested topic in Islamic legal literature. See e.g. Schacht, Joseph, An Introduction to Islamic Law 69–73 (Clarendon Press 1964)Google Scholar; Weiss, Bernard, Interpretation in Islamic Law: The Theory of Ijtihad, 26 Am. J. Comp. L. 199 (1977)CrossRefGoogle Scholar; Ali-Karamali, Shaista P. & Dunne, Fiona, The Ijtihad Controversy, 9 Arab L. Q. 238 (1994)CrossRefGoogle Scholar; Hallaq, Wael B., Was the Gate of Ijtihad Closed?, 16 Intl. J. Middle E. Stud. 3 (1984)CrossRefGoogle Scholar.
85. See generally The Principles of Jewish Law (Elon, Menachem ed., Transaction Publg. 1975)Google Scholar; Cohn, Haim H., Jewish Law in Ancient and Modern Israel (Ktav Publg. Inc. 1971)Google Scholar.
86. See generally Gypsy Law: Romani Legal Traditions and Culture (Weyrauch, Walter O. ed, U. Cal. Press 2001)Google Scholar.
87. Indeed, this critique is quite powerful in that the renunciation of traditions and social practices typically incur social sanctions or other negative consequences. Thus, if we cannot say anything about the interpretive practice employed in the articulation of customs, traditions and social practices we may be forced to subsume all conflicts between law and such practices under the conflicts of law category. Doing so would over-expand the category and function as an effective redutio ad absurdum of our argument.
88. MacIntyre, Alasdair, After Virtue 222 (2d ed., U. Notre Dame Press 1984)Google Scholar.
89. Id.
90. See e.g. Wagner, John F. Jr., Standard for Determination of Reasonableness of Criminal Defendant's Belief for Purposes of Self-Defense Claim, That Physical Force is Necessary—Modern Cases, 73 A.L.R. 4th 993 (2005)Google Scholar.
91. This of course begs the question regarding what to do with people who are insane. First, it is important to note that insanity is typically a defense for wrongdoing in and of itself. Second, the structure of our argument requires the existence of a legal subject and legal authorities. For insanity to fit such criteria there would need to also be legal authorities. The imagining of legal authorities on our account would amount to exercising personal interpretation over the substance of legal obligations. As a result, it fits into the morality versus law conflict.
92. Dworkin, Law's Empire, supra n. 13, at 196.
93. Id.
94. Id. at 196-203.
95. Soper, supra n. 27.
96. MacIntyre, supra n. 88.
97. Taylor, Charles, Sources of the Self: Making of the Modern Identity (Harv. U. Press 1992)Google Scholar.
98. This is not to say that this argument poses the most serious problem to Court's decision in Smith. See e.g. McConnell, Michael, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990)CrossRefGoogle Scholar.
99. Others may not read the “law unto themselves” rationale as the primary argument in Smith. In fact, the decision also relies on the history of the Court's limited application of the Sherbert interest balancing test in arguing for abandoning the Sherbert paradigm completely. See Smith, 494 U.S. at 878-879. Nonetheless, I believe the “law unto themselves” argument serves as the driving force behind the decision, especially given some of Justice Scalia's other arguments in the First Amendment context. Indeed, Scalia's First Amendment jurisprudence seems to focus heavily on the dominant role of the legislature. See e.g. Empl. Div., 494 U.S. at 890; Kiryas Joel. v. Grumet, 512 U.S. 687, 737 (1994) (Scalia, J., dissenting) (“But in the Land of the Free, democratically adopted laws are not so easily impeached by unelected judges.”). Much of this role, I would argue, stems from a general view that legal enactments of legislatures should simply not be overridden, save in extraordinary circumstances, by an overzealous judiciary. In other words, as a general matter, the Smith decision seems grounded in a deep belief that individuals cannot simply override the demands of the law by pointing to their competing associational obligations. To do so would be to undermine the necessary force of the law, which is to enact rules that can apply to all members of the given citizenry. Of course, the legislature can carve out its own exceptions to general rules. But in such cases, these exceptions, passed through the legislature are themselves part of the law, ceasing to be exceptions thrust upon facially neutral and generally applicable legislative enactments. See generally Schauer, Frederick, Exceptions, 58 U. Chi. L. Rev. 871 (1991)CrossRefGoogle Scholar; Stein, Jeremy B., The Necessary Language of Exceptions: A Response to Frederick Schauer's “Exceptions,” 63 N.Y.U. Annual Survey Am. L. 99 (2007)Google Scholar. On the “law unto themselves” rationale, it is exceptions that invade the terrain of law, conjured up by individuals with associational obligations—or at least so the argument presented in Smith goes. To the degree that the reader sees other concerns driving the Court in Smith, I fear he or she will not find the thesis of this article particularly convincing. In such an event, I present the religious compulsion defense as a free-standing argument and not as a challenge to current free exercise doctrine.
100. In this way, a religious compulsion defense overcomes some of the equality based arguments against religious accommodations. See e.g. Eisgruber, Christopher L. & Sager, Lawrence G., The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. Chi. L. Rev. 1245, 1291–1297 (1994)CrossRefGoogle Scholar; Gedicks, Frederick Mark, An Unfirm Foundation: The Regrettable Indefensibility of Religious Exemptions, 20 U. Ark. Little Rock L.J. 555, 556 (1998)Google Scholar; Marshall, William P., In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 319–323 (1991)CrossRefGoogle Scholar.
101. Interamerican Refining, 307 F. Supp. at 1295-1296.
102. This is even true in theocratic regimes because in theocratic regimes religion becomes the law of the state. Consequently, such conflicts would revert back to the foreign compulsion arena.
103. To clarify, it is the default presumption from the perspective of United States law. Meaning, analysis of the foreign compulsion doctrine, a creation of the United States legal regime, begins with the presumption that its own law still obtains. This is not to say that other countries should be using United States law as a default. Our analysis in this article is from the perspective of the United States.
104. Interamerican Refining, 307 F. Supp. at 1298.
105. Such conflicts are better subsumed under the category of conflicts between personal morality and the law, which invariable lead to discussions of the moral and legal standing of civil disobedience.
106. Indeed, individuals do not walk into court and advance their own interpretation of international or foreign law when claiming compulsion. Instead, they demonstrate through precedent how the foreign jurisdiction has interpreted the relevant foreign law. It is only in such circumstances that the act of the defendant truly becomes the act of a foreign sovereign; in turn, it is only under parallel conditions that a religious compulsion defense would apply.
107. Restatement § 441.
108. Bryant, 502 F. Supp. at 490-491.
109. As our foregoing analysis has demonstrated, this conclusion in case law fits with the philosophical origins of legal deference. Seltzer, supra n. 74, at 669.
110. 357 U.S. 197(1958).
111. Id. at 208-209.
112. Id.
113. See e.g. Minpeco, 116 F.R.D. 517 (denying a motion to compel production of documents housed in Switzerland because of Swiss non-disclosure laws); Compagnie Francaise d'Assurance Pour le Commerce Exteriew v. Phillips Petroleum Co., 105 F.R.D. 16 (S.D.N.Y. 1984) (granting motion to compel production of documents housed in France if no alternative source could be found to deliver necessary documents); SEC v. Banco Delia Svizzera Italians, 92 F.R.D. 111 (S.D.N.Y. 1981) (granting motion to compel production of documents housed in Switzerland); see also Brown, supra n. 51, at 1320 (analyzing the precedent of Societe Internationale in the non-disclosure context).
114. Motorola Credit Corp. v. Uzan, 388 F.3d 39, 43 (2d Cir. 2004).
115. Id. at 60, citing Societe Internationale, 357, U.S. 197.
116. Smith, 494 U.S. 887.
117. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416 (1964), citing Underbill v. Hernandez, 168 U.S 250, 252 (1897).
118. Id.
119. Such an approach fits well with the overall consideration of fairness to the defendant. If the defendant perceives a sanction for not complying with religious law, then the defendant is caught in the very type of bind the foreign compulsion defense was meant to alleviate. A religious compulsion defense would take into account the way in which law functions from an “internal point of view,” where in order to experience the coercive force of a law you often must be within the legal community. See H.L.A. Hart, supra n. 14, at 90.
120. By focusing only on the importance of the state's legal norm, and not the competing legal norm, we would be adopting the methodology used by the D.C. Circuit in Laker Airways, 731 F.2d 909. See Laker Airways, supra n. 67.
121. In many ways, this type of inquiry mirrors the state interests inquiry employed under the Equal Protection Clause's tiers of scrutiny analysis. And while the purpose of such inquiries under the Equal Protection Clause serves a very different purpose, it demonstrates that courts are familiar and quite capable of engaging in this type of state-interest centered analysis.
122. I do not consider this objection from the perspective of the Establishment Clause. In this piece, I do not present a comprehensive response to such a critique; however, the outlines of a response would begin with an argument in favor of returning to the “freedom of conscience” paradigm of the Establishment Clause. See e.g. Feldman, Noah, From Liberty to Equality: The Transformation of the Establishment Clause, 90 Cal. L. Rev. 673 (2002)CrossRefGoogle Scholar.