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Legal borrowing is a two-way street

Munir Ceylan, a Kurdish union leader, was sentenced in 1993 to do time in a Turkish prison. His crime: writing a newspaper article urging political action against Turkish government policies concerning the Kurdish people. In 2000, the European Court of Human Rights, in finding that Ceylan's punishment violated human rights law, borrowed the words ''of one of the mightiest constitutional jurists of all time," Oliver Wendell Holmes. The court went on to cite several US Supreme Court cases, including Brandenburg v. Ohio, which upheld the free speech rights of members of the Ku Klux Klan.

Given the controversy over the role of foreign law in US courts, it might surprise some to know that such legal borrowing is a well-established, two-way street. US law is cited with frequency by the courts of other legal systems. In fact, US law has served as the basis for both constitutional and private law around the world. Some may argue that this legal borrowing is a way of currying favor or identifying with the United States, claiming kinship, as it were. But the reasons are more fundamental.

The US legal system is part of a larger family of law known as the common law system, which originated in England. Not surprisingly, common law systems in other former English colonies, such as Canada and Australia, consider themselves legal ''cousins," and refer to US and other common law courts on a wide variety of matters.

What is more surprising is the presence of US law in legal systems descending from the civil law, that ''other" branch of Western law predating English common law and originating in Rome. Whether one counts by number of countries or number of persons subject to it, civil law is by far the dominant legal tradition in the world today. Why the prominence of US law, a relative newcomer, in these systems?

One reason for the penetration of US law into civil law systems is the history and stature of our Constitution. As one of the oldest living constitutions in the world, ours has been a model for dozens of legal systems. High courts in countries as diverse as Israel, South Africa, and Mexico frequently cite US decisions on a wide variety of constitutional matters.

Another frequent area for citation involves constitutional or ''civil" rights. This is because US law, institutions, and statesmen played a key role in the development of international human rights law after World War II, especially in developing the Universal Declaration of Human Rights. Thus, there is a close kinship between our civil rights law and international human rights law, with American cases frequently cited in such tribunals as the European Court of Human Rights.

Nor is the borrowing of US law limited to constitutional subjects. As a global leader in legally regulated capitalism, the United States is also the source of business and commercial law models widely copied by the rest of the world. Moreover, US criminal law, with its prominent role for juries and strong right to counsel, is widely admired and copied, even by systems which originally followed the judge-controlled inquisitorial system of civil penal law.

Through public agencies like US AID and private organizations like the American Bar Association's Central and Eastern European Law Initiative, the United States has been a leader in funding and staffing law reform and rule of law projects around the world. These efforts have done much good, but they are not without their problems. Often US funding brings with it the presumption that US legal models will serve as the basis for reform. This has not always been appropriate, successful, or well-received, given the complexity of grafting legal rules and institutions onto other legal systems.

This bring us full circle. While here in the United States many resist legal borrowing from foreign systems, citing the uniqueness of US law and the primacy of our legal sovereignty, abroad we have at times been associated with poorly planned efforts to graft US law onto other systems, for the sole reason that we were footing the bill.

Globalization cannot help but increase the role of foreign law borrowing, with courts looking more often to their counterparts in other countries for guidance and ideas.

As more nations transition to constitutional democracy, our US system will continue to be a model. It should be a source of pride that the US system has the prestige it does, and often for the best reason: the attractiveness of our reasoned arguments, a form of influence all too lacking in today's international climate.

Frank Garcia, professor of international and comparative law at Boston College, is director of the Law & Justice in the Americas project.

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