Wykładnia komparatystyczna czy niekomparatystyczne odwołanie do prawa obcego? Studium przypadku Trybunału Konstytucyjnego

Abstract

Comparative Interpretation or Non-comparative Reference to Foreign Law? (A case Study of the Polish Constitutional Tribunal) The aim of the article is a reconstruction of the Constitutional Tribunal’s understanding of references to foreign law and jurisprudence. The research sample consists of judgments concerning: (i) the Lisbon Treaty; (ii) shooting down a civil aircraft; (iii) control of the objectives of a political party; (iv) data retention. Other judgements are referred supplementary. The article focuses on the internal point of view of the Constitutional Tribunal. It analyses how the Tribunal describes and understands the references to foreign law and foreign case law. It also discusses how the Tribunal uses that references. The main argument is that the Tribunal does not perceive its practice (i.e. references to foreign law) as comparative constitutionalism or comparative thinking. Consequentially, maybe it is not justified for scholars to criticize this practice as comparatively flawed. The article ends with a call to view the Tribunal’s references differently since the references to foreign law are an element of the non-linguistic context of the interpretation of constitutional provisions. It is also closer to an argument from authority than a comparative one.