Research Handbooks in Comparative Law series
Edited by Tom Ginsburg and Rosalind Dixon
Chapter 31: Judicial Engagement with Comparative Law
Cheryl Saunders 1 1.1 INTRODUCTION Rationale Over a period of a decade spanning the turn of the 21st century, references to foreign constitutional experience appeared in a handful of decisions of the Supreme Court of the United States.1 In Atkins, Lawrence, Roper and Graham the majority opinion referred to foreign law. In Printz and Knight the reference was confined to individual opinions.2 The references played a variety of relatively minor roles in the reasoning processes of the Justices concerned (Tushnet 2005–6, p. 299). They nevertheless sparked considerable controversy, in the course of which the practice was criticised on grounds of both legitimacy and methodology.3 The controversy served to highlight what Jackson has characterised as the ‘engagement’ of courts with foreign law, as a particular, practical application of comparative constitutional law (Jackson 2010). Judicial engagement with comparative law, which has also variously been described in terms of the migration of constitutional ideas (Choudhry 2006, p. 1), the importation of constitutional law (Dupré 2002, p. 267), constitutional borrowing (Friedman and Saunders 2003), cross-constitutional influence (Scheppele 2003, p. 296) or judicial dialogue (Harding 2003), is the subject of this chapter. Its inclusion in this volume can be justified on the basis that it represents a form of applied comparative constitutional law. The debate in the United States in turn was a catalyst for examination of the extent to which courts elsewhere in the world refer to foreign law in the course of constitutional adjudication.4 While there is much empirical work still to...
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