INTRODUCTORY NOTE TO THE UNITED STATES SUPREME COURT: GRAHAM V. FLORIDA & THE FEDERAL COURT OF AUSTRALIA: HABIB V. AUSTRALIA

摘要

The U.S. Supreme Court decision in Graham considers whether the Cruel and Unusual Punishments Clause of the U.S. Constitution's Eighth Amendment permits a juvenile offender to be sentenced to life in prison without parole for non-homicide crimes. In almost non sequitor contrast, the Federal Court of Australia decision in Habib considers whether a tort suit by a former Guantanamo Bay detainee against Commonwealth officials for alleged malfeasance may proceed. Facially, the cases have few if any similarities-one is a U.S. criminal case, the other an Australian civil case. Indeed it is one aspect of their disparate nature, starkly contrasting judicial attitudes toward the role of "foreign law," which warrants contemporaneous consideration of both. The U.S. Supreme Court's attitude towards foreign law is, to be polite, mixed, while the Australian Court not only considers but relies on a wide range of U.S. and United Kingdom cases. Juxtaposed, the two cases offer an interesting view of not only the obvious differences between inward- and outward-looking judicial philosophies, but perhaps a broader sense of how the two legal systems view their role in and contribution to the international rule of law.