The Hollow Canon of Transnational Constitutional Engagement

Abstract

Abstract This chapter analyses the rise and fall of transnational constitutional engagement in judicial decisions. Around the turn of the twenty-first century, constitutional courts around the world started using foreign law in new and creative ways. Yet, within two decades, those practices diminished considerably and, in some jurisdictions such as the United States, abruptly came to a halt. This chapter starts by tracing that evolution through canonical cases involving the constitutionality of criminal punishments—death penalty and life imprisonment—in South Africa and the United States. It then turns to theories in support of the legitimacy of the use of foreign law in the constitutional context. While the use of foreign law challenges core normative presuppositions in modern constitutionalism, few if any normative accounts match in theory the boldness of the constitutional practice. Lacking a theory to stabilize, legitimize, and ultimately entrench the practice, the use of foreign law became victim to changes in the political and historical factors that brought it into existence in the first place. The chapter argues that the use of foreign law in constitutional interpretation imploded not only under the political and ideological pressure of its fierce critics, but also under the weak and unimaginative defenses of its supporters.