Against Kadijustiz: On the Negative Citation of Foreign Law

Abstract

In the arguments about the judicial citation of foreign law, judges are arguing about values. But they often do not acknowledge the values that they are debating or give specific rationales for why they prefer one value over the other in their majority and dissenting opinions, preferring instead to adopt negative models of foreign law against which to make a general claim. One example of this phenomenon is the American judicial citation of “kadijustiz” — a term introduced by Max Weber and popularized by Justice Felix Frankfurter in a 1949 decision — to refer to arbitrariness. But this practice is wrong because for two reasons. First, it is inaccurate, as Islamic legal historians have long pointed out in detailing Islamic judicial procedure in Mamluk, Ottoman, and other courts from the medieval to early modern periods. Second, judicial citation of kadijustiz obscures the reasons for adopting certain values over others in contested judicial decision-making, thereby weakening invoking-judges’ arguments overall.