Abstract
This article aims to analyse the phenomenon of the diffusion of interpretive paradigms or argumentation models between constitutional courts. This phenomenon involves the importation of parameters - defined here as extra-systemic to a specific legal system - and the use of the comparative method in applying constitutional texts. The main subject of this study is the analysis of the first 11 years of South African constitutional jurisprudence, which is a convenient scenario since a constitutional provision enables the Constitutional Court to 'consider foreign law' when interpreting the Bill of Rights. In fact, this led to the wide use of foreign jurisprudence and legislation (from which were extracted argumentation models, patterns of balancing between principles and sometimes actual normative 'meanings'): in other words, extra-systemic legal inferences. This article shows the existence of several patterns of legal argumentation based on foreign law which were developed by the South African Constitutional Court.
Highlights
Among the many trends in research on the theory of interpretation and legal argumentation is the discussion between scholars about the role of foreign law and the comparative method in interpreting and applying legal texts.[1]
The constitutional courts which are most active in using foreign law include the established jurisprudence of the Supreme Courts of Canada[2] and Israel and the frequent references that constitutional judges in Latin American countries such as Argentina, Brazil and Colombia make to the Supreme Court of the United States
This study proposes to evaluate if and to what extent the comparative method can be a resource for constitutional judges,[13] in particular assessing the risk that its use could give judges an uncontrollable and arbitrary freedom when interpreting and applying the law
Summary
Among the many trends in research on the theory of interpretation and legal argumentation is the discussion between scholars about the role of foreign law and the comparative method in interpreting and applying legal texts.[1]. For this reason it is important to evaluate if the spread of interpretive paradigms implies: (a) subjection; (b) mimesis; (c) affiliation with cultural and economic zones; (d) sharing of historical and political ties; or (e) derivation of constitutional formal models Regarding this last case, we should verify whether the phenomenon is a particular feature of those systems having a new generation Bill of Rights. If we think of how the practice u nder examination is only conceivable in its current state with the tools of computerized communication, we can find support for this hypothesis in the fact that many bodies of constitutional justice created after the post-communist transitions in Central Eastern Europe immediately built efficient websites that made national constitutional jurisprudence available in lingua francas as a step for creating international political legitimacy It is worth noting the website of the Supreme Court of Estonia, which was already running halfway through the 1990s, and the website of the Hungarian Court. If the spread and refinement of this practice were ever made ‘legitimate’, the comparative method (as a scientific and knowledge seeking method) could become an indispensable tool for the legal scholar (and the judge) to fill in the gaps that the circulation of legal arguments risks generating.[22]
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