Comparativism and the new hungarian fundamental law taking. The following are some of the general principles formulated by sa courts. Shabalala v the attorneygeneral of transvaal nyamakazi v president of bophuthatswana. The author conducted interviews with eight former and current justices1 who discussed both the value gained from the practice of engaging with foreign law and their ways of addressing the concerns expressed by american critics. Recently in roach v electoral commissioner roach, the high court considered a challenge. An epistemic role for international law in constitutional interpretation aug. Toward a theory of comparative constitutional interpretation, 74 ind. Mar 31, 2017 principles of constitutional interpretation introduction. Away from institutionalism and toward individualism 100. Styles of constitutional interpretation and the four main. The full picture is elaborated in david gray, the proper care and feeding of international law. Constitutional comparativism by the supreme court of the united states 791 1. International consensus as persuasive authority in the eighth. What comparativism tells us about originalism, international.
Sujit choudhry, globalisation in search of justification. Hereafter, i will use the term constitutional comparativism, which should. Alford introduction the issue of constitutional comparativism has been a topic of significant commentary in recent years. Constitutional courts in asian cases, cambridge university press, cambridge. Judicial constitutional comparativism at the uk supreme court. Sujit choudhry, globalization in search of justification. Its most famous interlocutors are scalia j, on the one hand, and kennedy and breyer jj, on the other. Constitutional interpretation in a globalised world. Australian constitutional law and theory commentary and materials, the federation press, sydney. First, this article examines whether meaningful conclusions about ones desert judgments. The migration of constitutional ideas judicial use of foreign law is a product of the globalization of the. The dilemma of constitutional comparativism 789 zaorv 71 2011 comparative constitutional interpretation,5 migration of constitutional ideas or constitutional jurisprudence,6 generic constitutional law7. It is precisely in this manner that many contemporary american constitutional scholars have transformed originalism into a form of living constitutionalism, 79 a trend recently referred to as the new textualism in constitutional interpretation. Part ii examines the evolution of the courts cruel and unusual punishment jurisprudence, identifies the major problems with the courts proportionality analysis, and posits that constitutional comparativism can alleviate these problems.
If there remained any doubt as to whether comparativism enjoys sufficient scholarly attention or normative justification to merit a place of its own in the pantheon, professor jacksons masterful and learned book, constitutional engagement in a transnational era,1 ought to put. Methods of constitutional interpretation outlines and revision materials. This has important implications for the application of comparativism to constitutional theory beyond the debate about originalism. Toward a theory of comparative constitutional interpretation 1999 74 ind. The centre for comparative constitutional studies cccs is one of the law schools thirteen specialist research centres and was established in the faculty of law in 1987. Unlike nationalists, who emphasize the differences among constitutional systems, these scholars see unity in the midst of diversity. Comparative constitutional law and interpretive metaphors vicki c. This article will focus on mistakes about voices, history, statutes, and outcomes. We also stock outlines on constitutional as well as law outlines generally. Like most judges charged with the interpretation of constitutions, the judges of the high court of australia commonly refer to, analyse, and are sometimes persuaded by the analyses of courts in other countries deciding similar questions. These and other differences in constitutional cultures complicate the task of doing comparative constitu tional law, perhaps to the point where the payoff in any terms other than the increase of knowledge is small. The mistake about voices the first mistake in the debate on outsourcing authority is about the protagonists.
Jackson debate over the appropriate role of foreign and international law in adjudication of public law claims is not unique to the united states. However, constitutional interpretation relies on traditional legal tools that look to internal aspects of the constitution e. Ten years later, judicial reference to foreign judgments is still a very common phenomenon in this jurisdiction, however very little has been written about it. Comparativism in constitutional interpretation by adrienne. The use of comparative constitutional materials in constitutional interpretation comparative constitutional interpretation has emerged as a central component of contemporary constitutional.
The letters of the constitution are fairly static and not very easy to change but the laws enacted by the legislature reflect the current state of people and are very dynamic. Apr 27, 2017 the gaze of comparativism is very harsh as older constitutions are evaluated in light of newer ones and also as fossilised constitutional interpretations presented in earlier jcpc cases where the committee no longer has jurisdiction are given new life in contemporary cases. Constitutional interpretation in a globalized world. Constitutional interpretation 89 speaking up and speaking more 98 exhibit 2. Theories of constitutional interpretation modern democracy invites us to replace the notion of a regime founded upon laws, of a legitimate power, by the notion of a regime founded upon the legitimacy of a debate as to what is legitimate and what is illegitimatea debate which is necessarily without any guarantor and without any end.
In search of a theory for constitutional comparativism 2005, 52. A supreme constitution must be given a generous and purposive interpretation. Comparative law plays a role both at the time of the creation and interpretation of constitutions. Surveying the debates about the uses of comparative constitutional law at the founding, and tracing these debates to contemporary times by looking at the role of comparative constitutional law in the history of the u. Thoughts on substance and methods, indian journal of constitutional law, 2008. Principles of constitutional interpretation introduction.
Some of the opposition in the united states is driven by resistance to the supreme. Constitutional comparisons by a supranational court in flux. As with many debates in constitutional theory, the debate over constitutional comparativism has its origin and finds it fullest and most vigorous expression in the united states. The debate about constitutional comparativism in the united states 793 3. Randall kelso, styles of constitutional interpretation and the four main approaches to. This article deals with constitutional comparativism in action. The cccs undertakes and promotes research on the constitutional law and government of australia and of other countries and provides a focal point for scholars and. Lower courts and constitutional comparativism roger p. Styles of constitutional interpretation and the four main approaches to consitutional interpretation in american legal history r.
Alford constitutional comparativism the notion that international and foreign material should be used to interpret the u. In contrast to a us view which considers constitutional comparativism to be futile, the law of the european union explicitly relies on comparison as the core issue of general principles of eu constitutional law. International consensus as persuasive authority in the eighth amendment youngjae leet this article is about the epistemic significance of international consensus on constitutional interpretation in the eighth amendment context. Methods of constitutional interpretation oxbridge notes. Refined comparativism in constitutional law by david. In search of a theory for constitutional comparativism roger p. Refined comparativism in constitutional law request pdf. Pdf constitutional interpretation in a globalised world. Selected theories of constitutional interpretation congressional research service 1 introduction the united states constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government and, to a lesser.
Ran hirschl, the rise of comparative constitutional law. Constitutional courts, constitutional interpretation, and. Constitutional interpretation under the new south african order adrians janet hofmeyr a dissertation submitted to the faculty of law, university of the witwatersrand, johannesburg, in fulfilment of the requirements for the degree of master of laws johannesburg, 1998. Request pdf refined comparativism in constitutional law this article considers the possible uses of comparative constitutional law in american constitutional interpretation.
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