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Comity is the courtesy one jurisdiction gives by enforcing the laws of another jurisdiction.  Comity is granted out of respect, deference, or friendship, rather than as an obligation.  In American constitutional law, comity has arisen in two ways.  Historically important was the failure of comity in interstate relations.  In the modern context, comity is usually an issue that involves the federal courts’ willingness to rule on a state law in the absence of decision by a state court on the same issue.

In law, comity specifically refers to legal reciprocity, the principle that one jurisdiction will extend certain courtesies to other nations, or other jurisdictions within the same nation.  This is particularly done by recognizing the validity and effect of their executive, legislative, and judicial acts.  The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction. A presumption that other jurisdictions will reciprocate the courtesy shown to them is a part of comity.  Many statutes relating to the enforcement of foreign judgments require that the judgments of a particular jurisdiction will be recognized and enforced by a forum only to the extent that the other jurisdiction would recognize and enforce the judgments rendered by that forum.

In the law of the United States, comity may refer to the Privileges and Immunities Clause in Article Four of the United States Constitution.  This clause provides that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

However, in judicial context, comity should not be misinterpreted as implying that all laws are of universal jurisdiction.  In many countries, comity is effective only to the extent that foreign laws or judgments do not directly conflict with the forum country’s public policy.  The concept of comity has often led US courts to adopt outcomes that either encourage both US and foreign firms to evade US regulation or to accept broad discretionary authority in the executive branch at the expense of legislative controls.  States usually as a matter of reciprocity and comity:

  • allow visitors to drive cars with drivers’ licenses from other states,
  • recognize marriages and adoptions in other states, and
  • often grant professional licenses to migrants or visitors.

Moreover, the concept of comity has led to the modern doctrine of abstention, which stems from the notion that the state and federal courts are equally obligated to enforce the United States Constitution.  Where uncertain questions of state law must be resolved before a federal constitutional question can be decided, federal courts should abstain” from reaching a decision on federal issues “until a state court has addressed the state questions” [i].

Likewise, on grounds of comity and pursuant to federal law, the Supreme Court has generally refused to allow federal courts to intervene in pending cases in state courts where there is no evidence of bad faith harassment.  Comity is “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.”  Usually, this is referred to as ‘Our Federalism’[ii].

[i] Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (U.S. 1985)

[ii] Younger v. Harris, 401 U.S. 37 (U.S. 1971) (1971)

Inside Comity