In "Partly Laws Common to All Mankind": Foreign Law in American Courts," Jeremy Waldron advocates what could be called "the doctrine of jus gentium," according to which, roughly, courts sitting in one country must give some weight in their legal deliberations to some principles that have been accepted or adopted by the legal systems of many other countries. Waldron's arguments for this doctrine raise questions and worries about exactly what the content of the doctrine is, and what justification could be offered for it. Several different versions of the doctrine come into the picture as Waldron argues for jus gentium, and while some versions are plausible, some others are not. Unfortunately, the most plausible of the versions seems to be excluded by Waldron's commitment to a Dworkinian conception of the nature of law. This paper ends up recommending that Waldron drop his commitment to that conception of the nature of law in favor of the plausible version of the doctrine of jus gentium.
This paper is a contribution to a symposium on Jeremy Waldron's work organized by the American Philosophical Association. A revised version will be published in a forthcoming issue of the APA Newsletter on Philosophy and Law, with Waldron's reply.
(Update: The title of the post has been corrected!)