Journal Article

Interpreting bills of rights: The value of a comparative approach

Jack Tsen-Ta Lee

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 5, issue 1, pages 122-152
Published in print January 2007 | ISSN: 1474-2640
Published online January 2007 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mol042
Interpreting bills of rights: The value of a comparative approach

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  • Constitutional and Administrative Law
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In certain jurisdictions, among them Malaysia, Singapore, and the United States, the practice of consulting comparative legal materials in interpreting domestic bills of rights has been criticized as illegitimate. This article examines four main concerns: (1) the texts of bills of rights—the argument that a bill of rights is to be interpreted within its own “four walls” and not in the light of analogies drawn from other jurisdictions; (2) national identity—the argument that a bill of rights embodies the values of a nation's people, and it is wrong to refer to foreign experiences to determine such values; (3) different domestic conditions—the argument that comparative legal materials do not reflect local economic, political, social, or other conditions that differ from those in other jurisdictions; and (4) certain practical concerns. The article concludes that, notwithstanding these concerns, there are sound justifications for courts to take a comparative approach to the interpretation of bills of rights and substantial benefits to be derived from such an approach.

Journal Article.  13878 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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