Law
Using Comparative Constitutional Law to Interpret Fundamental Rights
Quick fact
The Supreme Court of Canada has cited foreign law in interpreting the Charter's rights, and the South African Constitutional Court routinely considers international and foreign law in its rights jurisprudence.
Why this is interesting
When a court argues that a right to privacy includes a right to same-sex marriage, it sometimes looks not only at its own constitution but at decisions from other countries. Why would a judge care about how a different nation interprets its laws?
Read the full explanation
Understanding Using Comparative Constitutional Law to Interpret Fundamental Rights
When judges interpret fundamental rights, they often face ambiguous wording—like 'cruel and unusual punishment' or 'liberty'. To decide what these terms mean for today's society, some judges find it helpful to examine how other countries with similar constitutional commitments have answered the same questions. For example, if several nations agree that anti-sodomy laws violate equality, a judge may be persuaded that his or her own constitution's equality clause points the same way. This process is not about copying other laws wholesale; rather, it is about learning from the reasoning of foreign courts and international treaties.
A deeper explanation
The underlying principle is that fundamental rights often express universal values, and comparative constitutional law helps reveal the best interpretation. When a court faces a novel question, it can draw on the 'jurisprudence of other democracies' as a source of persuasive authority. The mechanism involves identifying a similar right in another constitution, seeing how that country's courts have interpreted it, and then applying that reasoning to one's own context, while being attentive to differences in text, history, and social conditions. This practice, sometimes called 'judicial dialogue', promotes a transnational protection of rights and constraints against parochial majority views. However, it is not without controversy. Some argue that relying on foreign law undermines national sovereignty and the democratic will of the people. The legitimate use of comparative law focuses on shared principles, not wholesale adoption, and respects the unique context of each country.