Against borrowings and other nonauthoritative uses of foreign law

Abstract

In this article I reflect both on borrowings and on other uses of foreign law. Section 2 describes the relevance of foreign law, especially U.S. law, to the constitutional development of Argentina. Professor Jonathan Miller was correct when he asserted that United States constitutional law was a “talisman” in Argentine history.1 Section 3 offers what I think are the best reasons in favor of borrowing. In the Argentine legal tradition borrowing did not receive much thought; therefore, the discussion in section 3 will be rather theoretical. Section 4 introduces the problems that borrowing may face and the reasons that it may be resisted. The basic idea is that the heterogeneity of constitutional law and difficulties in the democratic validation of the decision to adopt foreign law makes borrowing, to say the least, a problematic activity. Section 5 focuses on other uses of foreign law, different from borrowings, that I will call here nonauthoritative uses. In section 5, I will discuss the merits of using foreign law as evidence and as a source of legal innovation and knowledge. Section 5 also discusses the “on-going dialogue between adjudicative bodies of the world community,”2 taking a view opposed to those judges who would enter into an international conversation, mainly because reference to foreign law adds unnecessary complexity to decisions by courts—which, ideally, should be kept as simple as possible—and because it makes it more difficult for the development of an indigenous constitutional culture. Section 6 concludes with some general remarks. Two introductory comments are appropriate. First, the perspective of this article is that of someone who lives in a country that has used and abused foreign law but, notwithstanding this use and abuse and probably because of it, has failed in its effort to build a sustainable legal and constitutional culture.