Use Of Foreign Law Research Articles

Developments in Comparative Public Law in South Africa

In South Africa, the study and practice of law involve comparing different legal systems due to the complex historical blend of Roman-Dutch, English, indigenous, and religious laws. Constitutional supremacy since 1994 has amplified the importance of comparative legal method. The 1996 Constitution itself drew from various legal systems, endorsing the use of foreign law in interpreting rights. Comparative legal method is vital across all legal domains, and has greatly grown in relevance in constitutional and administrative law following constitutionalisation. This contribution explores the use of comparative legal method in South African constitutional and administrative law. It uses Herwig Hofmann’s three categories of comparative frameworks, namely “law as category”, “law as source” and “law as variable”, to consider the continuity and discontinuity between historical reliance on comparative method in South Africa and comparative legislative and judicial practices under the Constitution in the areas of constitutional and administrative law.

The Role of Foreign Law in the Courts’ Application of Estonian Law

It is difficult to overestimate the importance of comparative law in the legal developments of the restored Republic of Estonia. The country’s legislative drafting and jurisprudence frequently refer to and study legal solutions adopted in other countries, with private-law practitioners having even cited the comparative method as the main approach to drafting legislation and the best-practice rules for legislative drafting adopted in 2011 directing that the experience of other countries be considered in both the proposal for drafting and the draft law itself. While the comparative approach is followed so often for legal articles and doctoral theses that foreign law has even been referred to as an everyday tool for Estonian lawyers, reference to solutions in other legal orders is a much rarer phenomenon in application of the law, whether in the case law of Estonia or in that of other countries. The article provides an overview, based on legal literature and Estonian case law, of the arguments related to the admissibility of the use of foreign law in court decisions and examines the role of foreign law in the application of Estonian legal provisions. Its discussion focuses not on decisions that refer to the case law of the European Court of Justice or European Court of Human Rights or that cite case law from other countries with regard to applying international conventions but on those situations in which courts have used references to other countries’ legal provisions, case law, or legal literature (i.e., comparative arguments) when applying national law.

In Search of a Comparative Methodology in the Jurisprudence of the South African Constitutional Court

This article examines whether a judicial methodology to the use of comparative law has developed in the jurisprudence of the South African Constitutional Court. It does so by examining 10 recent cases where the Constitutional Court has considered foreign law. The author finds that a clear legal methodology to the use of foreign law has not developed in the jurisprudence of the South African Constitutional Court. Foreign law is often relied on in a piecemeal fashion and these examples are often “cherry picked” with little or no justification provided by the Court. The Court still shows apreference for considering “Global North” experiences. In addition, the Court has mostly failed to consider the social realities and cultural considerations of the comparator countries vis-à-vis those of South Africa.

In the Region of Middle Axioms: Judicial Dialogue as Wide Reflective Equilibrium and Mid-level Principles

This article addresses the use of foreign law in constitutional adjudication. We draw on the ideas of wide reflective equilibrium and public reason in order to defend an engagement model of comparative adjudication. According to this model, the judicial use of foreign law is justified if it proceeds by testing and mutually adjusting the principles and rulings of our constitutional doctrines against reasonable alternatives, as represented by the principles and rulings of other reasonable doctrines. By this, a court points to a wide reflective equilibrium, justifying its own interpretations with reasonable arguments, i.e. arguments that are acceptable from the perspectives defined by other constitutional doctrines, as endorsed by other courts. The point of a judicial engagement of this sort is to work out an overlap between different, reasonable, doctrines in the judicial forum, as part of a liberal forum of public reason. Here, the exercise of public reason filters out the premises of comprehensive doctrines so as to leave us in the region of an overlapping consensus: a region of mid-level principles that can be shared, notwithstanding the fact of legal pluralism.

Ferrari, Guiseppe Franco (ed.): Judicial Cosmopolitanism. The Use of Foreign Law in Contemporary Constitutional Systems (2019)

Ferrari, Guiseppe Franco (ed.): Judicial Cosmopolitanism. The Use of Foreign Law in Contemporary Constitutional Systems (2019)

An Appraisal of the Influence of Legal Transplant on National Legal Systems

States may use foreign law for different reasons. Courts can do so when faced with a controversial new issue for which no apparent solution is found under national law. Often countries refer to laws or legal practices of other countries within the same legal family. This is done by Cameroonian courts, especially in the English speaking regions where the common law legal system applies. This paper analyses the impact and legitimacy of the use of foreign law paying particular attention to Cameroon. The analysis will be based on the following sequence: comparative law and national legislatures; comparative law and national courts; voluntary recourse to foreign law in domestic disputes; legitimacy of comparative law influence and reasoning; motives and strategies in valuing foreign law; and the extent to which legal systems are opened to foreign influence. The paper concludes that the Cameroon legal systems (common law and civil law) are highly influenced by legal transplant.

Foreign Law, Democracy, and Constitutional Interpretation: A German-American Comparison

AbstractDemocracy is usually relied upon as an important argument against the excessive influence of international and foreign law on the domestic legal order, and especially on domestic constitutional law. Both in Germany and the United States, skeptics and opponents of the Europeanization or internationalization of domestic constitutional law repeatedly raise democratic concerns. From a comparative perspective, this Article examines the German and American democratic arguments against an overreliance on international and foreign law in constitutional interpretations. In exploring the democratic concerns expressed in German and American discussions, this Article focuses especially on the contrast between German dualism on the one hand and American exceptionalism on the other hand. This Article shows that, while the German dualists and the American exceptionalists base their arguments on different understandings of democracy, they share the viewpoint that democracy can only be realized on the national level, whereas international law aims at uniformity und thus inevitably runs counter to democratic self-governance and self-determination of the states. Precisely in this sense, it can be said that there is no qualitative, but rather only a quantitative distinction between German and American democratic arguments. Thus conceived, the alleged contrast between the principle of open statehood emphasized by German constitutional law scholars and the Constitutional Court and the idea of American exceptionalism embraced by a number of critics of the use of foreign law lies only in the extent to which the reference to international or foreign law in interpreting the domestic Constitution is deemed legitimate and justifiable.

The morality of foreign law

Abstract The article explains the normative foundations of the use of foreign law in constitutional reasoning. It pursues four claims. First, it argues that a normative explanation of the use of foreign law must elucidate the connection between foreign legal facts and moral values. Second, it distinguishes between the deductive model of the use of foreign law, which ascribes value to foreign legal facts directly, and the reflective model, which ascribes value to the outcomes of the reflective process facilitated by foreign legal facts. Third, it shows how the deductive model fails to explain the value of foreign law for constitutional judgment. Fourth, the article demonstrates how the reflective model can be justified with reference to a set of virtues of good moral judgment, but argues that this model poses important limits to the use of foreign law.

Application of Foreign Law in Economic Disputes and Implementation of National Interests

In the context of globalization, the question of protecting one's own national interests is becoming more acute for the state on whose territory foreign law and order is applied. The application of foreign legislation in economic disputes creates various problems and raises questions related to the establishment of the content of foreign law, which must be resolved in the context of Theoretical understanding and law enforcement practice. This study is aimed at identifying the risks of uncertainty in the application of foreign law to relations involving a foreign element in the Russian legal reality and finding ways to overcome them taking into account national interests. Special attention is paid to consideration of the Institute of non-use (limitations) of foreign law is presented in the form of rules on the application of the mandatory rules of the forum (lex fori), the reservation of public order (order public), and eliminating the use of foreign law in case of conflict.

Judicial constitutional comparativism at the UK Supreme Court

AbstractIn 2008, Lord Reed in his paper ‘Foreign precedents and judicial reasoning: the American debate and British practice’ noted the lack of full scholarly consideration of judicial comparativism in the UK. Ten years later, judicial reference to foreign judgments is still a very common phenomenon in this jurisdiction, however very little has been written about it. This paper assesses the UK Supreme Court's constitutional law jurisprudence in light of the main themes and arguments underlying the international debate concerning judicial comparativism. I argue that: (i) the use of foreign law is constitutionally legitimate where clear statutory language is respected; (ii) transferability concerns are mitigated by the interwovenness of the global common law system; and (iii) methodology concerns are mitigated by the UK Supreme Court's flexible, humble approach, which applies careful scrutiny to the foreign authorities put before it. Foreign judgments, I conclude, are never followed blindly or arbitrarily, and perhaps this is why there is no domestic debate about judicial comparativism, not even in the constitutional sphere.

The use of Foreign Law by the High Court of Australia

Justices of the High Court of Australia have a broad discretion to follow foreign judicial decisions based on whether they consider a decision to be persuasive. But it is difficult to assess what it is about a foreign decision that makes it likely to be followed by the High Court. This has created uncertainty that is problematic for both litigants and the court. To help address the uncertainty associated with the High Court's use of foreign decisions, this article identifies common factors that explain when the High Court is likely to follow foreign decisions. By drawing on theories of persuasive authority and closely analysing decisions from 2015 and 2016, I argue that the High Court is more likely to follow foreign decisions that: (1) are about legislation or instruments with similar words to those in dispute; (2) emanate from certain jurisdictions; (3) are from apex or appellate courts; (4) are raised by litigants; and (5) reflect values common to the Australian legal system. Conversely, the area of law, international consensus and the date of foreign decisions are unlikely to influence the High Court's willingness to follow foreign decisions. These factors can help litigants use foreign decisions effectively and may be used by legal scholars to scrutinise the legitimacy of the High Court's use of foreign decisions and to address the normative question of how the High Court should use foreign law.

Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors

On August 24, 2017, the Supreme Court of India issued a rare, unanimous nine-judge decision holding that the right to privacy is protected by the Constitution of India. The case is all the more noteworthy because the Court reversed its prior decisions holding that the right to privacy was not protected by the country's Constitution. It arose out of the government's creation of a national database of biometric and demographic information for every Indian. Rejecting the government's arguments, the Court found that the right to privacy applies across the gamut of “fundamental” rights including equality, dignity (Article 14), speech, expression (Article 19), life, and liberty (Article 21). The six separate and concurring judgments in Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors are trailblazing for their commitment to privacy as a fundamental freedom and for the judges’ use of foreign law across jurisdictions and spanning centuries.

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

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.

Constitutional Relevance of Foreign Court Decisions†

Reviving the historic debate on the use of foreign law in national constitutional interpretation, the author explores the question of whether legal rules and social standards of other states and legal systems are operational or should become operational in a domestic legal system by the agency of judges. Based on an analysis of European Union law, the author makes a distinction between foreign law as a formal element of adjudication and foreign law as part of a referential framework of judges, and suggests that the value of foreign legal materials in domestic adjudication is primarily cognitive, while their normative value depends on their compatibility with the EU’s constitutional ontology as understood by the Court of Justice of the EU. The author questions the adequacy of the functional comparative method in adjudication within the European Union by contrasting functions of national law against integrative functions of EU law. It is argued that the ontology of the European Union does not seek to reconstitute traditional functions of national legal rules on a European level, but to formulate integrative ones.

Interpretação constitucional comparativa: aproximação crítica e arcabouço metodológico

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.

Constitutional cases, foreign law and theoretical authority

Abstract:The judicial use of foreign law in constitutional cases is often unsatisfactorily explained in terms of persuasive authority, judicial learning or judicial dialogue. In this article, I argue that the central case of the judicial use of foreign law involves judges treating foreign case law as theoretically, rather than practically, authoritative. The justification for this approach lies in how case law emerges from a process that is structured in such a way that its outcomes deserve respect. There is, in contrast, no justification for any attempt on the part of judges to treat constitutional cases as an opportunity for interjurisdictional judicial dialogue.

The European Court of Human Rights and Transnational Judicial Dialogue

Abstract Over the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).

Foreign Precedent in State Constitutional Interpretation

The use of foreign law in constitutional interpretation has been met with intense criticism and commentary. Indeed, few subjects in constitutional law have attracted more attention in the last two decades. Justices, scholars, politicians, and pundits have all weighed in on how and whether American courts should consider foreign law when interpreting domestic constitutional provisions. The issue is now standard stock for questioning at judicial confirmation hearings, and law reviews have dedicated hundreds — perhaps thousands — of pages to related analysis and commentary. Despite this impressive tome of literature, this essay draws attention to an issue that the vast majority of commentators have overlooked. Almost all of the commentary on this issue has focused exclusively on whether it is appropriate for judges to use foreign precedent when interpreting the U.S. Constitution. Hardly anyone has stopped to ask whether state constitutional interpretation raises unique comparative issues or whether existing criticisms of using foreign precedent apply equally to state constitutional interpretation. This essay suggests various reasons why the debate regarding comparative analysis may be very different when a judge is interpreting a state constitutional provision rather than the U.S. Constitution.

Judicial Comparativism and Judicial Diplomacy

By global standards, the U.S. Supreme Court is unusual in a number of respects, but one of its most distinctive characteristics is its reluctance to engage in comparative constitutional analysis. Much has been said on the normative question of whether and in what ways the Court ought to make use of foreign constitutional jurisprudence. Rarely, however, do scholars broach the underlying empirical question of why some constitutional courts make greater use of foreign law than others. To identify the reasons for which courts engage in comparativism, a behind-the-scenes investigation was conducted of four leading courts in East Asia – the Japanese Supreme Court, the Korean Constitutional Court, the Taiwanese Constitutional Court, and the Hong Kong Court of Final Appeal. The results of this investigation highlight the crucial role of institutional and resource constraints in shaping judicial behavior but also pose an unexpected challenge to traditional conceptions of the role and function of constitutional courts. Evidence from interviews conducted with numerous justices, clerks, and senior administrators suggests that a combination of mutually reinforcing structural factors create the conditions necessary for comparativism to thrive. The first factor is institutional capacity. A court that lacks any institutional mechanisms for learning about foreign law, such as the recruitment of law clerks with foreign legal expertise or the use of researchers who specialize in foreign law, is unlikely to make more than sporadic use of foreign law. The second factor is a supportive system of legal education. Even the most elaborate of institutional mechanisms for facilitating comparativism is unlikely to be effective unless it is backed by a system of legal education that produces an adequate supply of lawyers with both an aptitude and appetite for comparativism. Investigation of the reasons for which courts engage in comparativism also reveals a hidden underlying phenomenon of judicial diplomacy. Unlike other judicial practices such as textualism or originalism, comparativism is not merely a means by which judges perform legal and adjudicative functions; it can also be a form of diplomatic activity. When constitutional courts demonstrate mastery of foreign law or host foreign judges, their goals may not consist exclusively, or even primarily, of writing stronger opinions or winning over domestic audiences. They may also be competing with one another for international influence or pursuing foreign policy objectives, such as promotion of the rule of law and judicial independence in other countries. The concept of judicial diplomacy helps to explain why constitutional courts engage in a number of practices that are only tenuously related to the act of adjudication. Although the U.S. Supreme Court rarely practices constitutional comparativism, it is an active practitioner of judicial diplomacy in other forms.

What Europeans Can Learn from an Untold Story of Transjudicial Communication: The Swiss-Turkish Experience

The role of the use of foreign law in the courts is shaped by the legal context in which it takes place, and by the structure of the legal system it serves. Swiss courts have considered foreign law on numerous occasions when filling a gap in the current domestic law, or when interpreting existing domestic rules. A study based upon 1,541 instances has shown that slightly more than 10 per cent of the decisions refer to foreign law (notably to German, but also to French, Austrian, Italian, British, American, Belgian, Dutch, and even to Swedish and Turkish law). In the same way, Swiss law is a source of inspiration for foreign legislatures and courts. The accessibility of Swiss private law to ordinary citizens, its solutions (which are pragmatic rather than conceptual), and the wide discretion given to judges as well as some additional historical facts and circumstances played a key role in the adoption by the Turkish legislature of the Swiss civil codes and, to some extent, of the Swiss rules of international arbitration.