Article

The Use of Foreign Law in Constitutional Interpretation

Gábor Halmai

in The Oxford Handbook of Comparative Constitutional Law

Published in print May 2012 | ISBN: 9780199578610
Published online November 2012 | | DOI: http://dx.doi.org/10.1093/oxfordhb/9780199578610.013.0066

Series: Oxford Handbooks in Law

The Use of Foreign Law in Constitutional Interpretation

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This article analyzes the use of foreign law in constitutional interpretation. It discusses the three broadly defined positions in the scholarly controversy over the uses of comparative constitutionalism: scholars supporting the idea of the use of foreign law legitimate this practice with the sameness of both the problems and solutions of constitutional law for all constitutional democracies; the second position's starting point is that although the problems of constitutional law are the same for all democratic countries, the solutions to should differ from one constitutional system to another; and the followers of the third position claim that neither the constitutional problems nor their solutions are likely to be the same for different constitutional democracies. The article then identifies some criteria that can explain why particular judges and courts decide to use or, conversely, not to use foreign materials. Four case studies are selected to address the more empirical questions of the use of foreign materials, namely to what extent does it happen, and where?

Keywords: foreign law; constitutional interpretation; judges; foreign materials

Article.  12077 words. 

Subjects: Law ; Comparative Law ; Constitutional and Administrative Law

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