IACL World Congress, Mexico
Workshop 12: Foreign Law: Jurisprudence Fertilization
The workshop topic:
The use of foreign case law (and not of foreign constitution or foreign legislation) by constitutional courts is the object of the workshop.
“Constitutional Courts” means specialised Constitutional Courts, in the countries that follow the “Kelsenian model” of judicial review. It includes Supreme Courts which decide on constitutional cases in the countries that follow the “American model” of judicial review.
A constitutional case is a case that involves the “constitutional interpretation” and that deals both with “institutional” and “human rights” issues.
The use of international case law is not included in the research, except if the country is not a party of the treaty because in this case there is not a hierarchical relationship between national and international or supranational institutions (for example, the use of ECHR by the US Supreme Court or by the High Court of Australia).
The aims of the workshop:
The research proposed touches on a very productive area of studies, particularly in recent years, focused on the influence of comparative law (or, shall one say, foreign law) on court decisions, that is the main feature of the “new comparativism.” The literature on this matter is growing vast, mainly in the English-speaking world, where these studies are long-established and deep-rooted. In the last few years, these studies have benefited from the contrasting impact of two courts, which are currently under global scrutiny for a different set of reasons. On one hand, attention is focused on the approach, that range “from indifferent to hostile”, exhibited by the majority within the United States Supreme Court with regard to direct citation of foreign precedents (See Printz v. U.S., 521 U.S. 898 (1997), Knight v. Florida 528 U.S. 990 (1999), Atkins v. Virginia, 536 U.S. 304 (2002), Foster v. Florida 537 U.S. 990 (2002); Lawrence v. Texas, 539 U.S. 558 (2003), Roper v. Simmons, 543 U.S. 551 (2005)). On the other, on the openness of South African Constitutional Court towards foreign decisions, also as a result of the rule contained in Section 39 of the Constitution, according to which: “When interpreting the Bill of Rights, a court, tribunal or forum: … may consider foreign law”. Non English-speaking commentators have not focused as intensely on this matter. Indeed, the absence within civil law legal systems of a catalyzing factor, such as the Privy Council, or of a common language, together with the preference for a less-articulated reasoning, has significantly reduced the use of foreign precedents.
More recently, however, civil law commentators have showed a growing interest in the so-called “cross-judicial fertilization,” as a consequence of many elements, such as the ongoing debate in English-speaking systems, the process of European integration, the propensity displayed by some Constitutional courts to quote foreign precedents in their decisions. Most commentators, whether English-speaking or not, focus on the arguments favoring or opposing the use of foreign jurisprudence as a method of constitutional interpretation. Just a few studies have made an attempt to catalog the different approaches adopted by constitutional (or supreme) courts in their use of foreign law and jurisprudence.
The workshop is aimed to fill this lack of attention to the empirical experience. In particular:
- We would like to clarify the very controversial issue of the use of foreign case law (that very often is an easy argument in favor of the anticomparativism) by improving the empirical research;
- We would like to check the reality of the thesis of the transjudicial dialogue between courts;
- We would like to check the reality of the thesis of the convergence of the common law and civil law traditions.
To these aims, we would like very much to encourage scholars to submit papers on national experiences of case-law, or papers on specific topics analyzed by a comparative point of view.