Interpretação constitucional comparativa: aproximação crítica e arcabouço metodológico

Abstract

This paper addresses the comparative constitutional interpretation problem, especially in fundamental rights cases. Firstly, it exposes of the debate on judicial use of foreign law. Then, it explains three kinds of use of foreign law: mandatory, advisable and voluntary uses. The purpose of the paper is to offer a normative justification for voluntary use. For this, it proposes two main arguments already offered by Jeremy Waldron, but in weaker forms. After the failures of these arguments being exposed, two main conclusions are drawn. First, the courts and judges of a country can benefit themselves not only of a legal consensus among nations but also of unique experiences from other countries. For this, comparability criteria are necessary. Second, the best advice is not to treat like cases alike in the world, but to treat comparable cases in a comparative way. Finally, it proposes a methodological framework for the comparability analysis in the judicial interpretation of constitutional rights.