Taking Comparative Law Seriously: Rethinking the Supreme Court of Canada’s Modern Approach to Statutory Interpretation

Abstract

The past few years have seen a resurgence of comparative law scholarship with the publication of a number of major works in the field.1 Scholarly interest in comparative law has been bolstered by a renewed sense of cosmopolitism, fading state borders, and increasing linkages among different legal systems.2 Detailed studies have examined the use of foreign law by domestic courts, usually excluding cases where courts formally apply foreign law as part of local conflict of laws rules. In other words, scholars have focused on situations where domestic courts invoke foreign law as a persuasive, rather than a binding, source of law. Studies tend to look at constitutional or human rights cases, with a number of scholars suggesting the emergence of a global jurisprudential exchange on the interpretation and scope of fundamental rights protections. While there is increased sharing of information among legal systems on questions of human rights, it appears that universalism can only be achieved at a higher, more abstract level as opposed to the domestic plane where law is routinely applied to concrete, individual cases. Not only do national legal systems still matter, broadly worded rights guarantees are continually interpreted and adapted by domestic courts in individual cases to the local context and economic, political, and social realities.