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Stone on Comparativism in Constitutional Law

By Lawrence Solum

Adrienne Stone (University of Melbourne - Law School) has posted Comparativism in Constitutional Interpretation (New Zealand Law Review, pp. 45-68, 2009) on SSRN. Here is the abstract:

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. Recently in Roach v Electoral Commissioner (?Roach?), the High Court considered a challenge to a 2006 amendment to the Commonwealth Electoral Act 1918 (Cth) that extended the class of disenfranchised prisoners from any person serving a sentence of three years or longer to any person ?who is serving a sentence of imprisonment?. In the course of deciding that this law contravened the requirement of the Australian Constitution that members of Parliament be ?directly chosen by the people?, the judges referred in the course of their reasons to decisions of the Supreme Court of Canada and the European Court of Human Rights.

This practice raises two questions that are at the centre of my lecture: whether judges interpreting constitutions should use foreign precedent in that task and, if so, how that precedent might be used.

To those who are not deeply engaged in constitutional law, this topic might seem technical and arcane, and thus a surprising choice for a public lecture. However, it raises fundamental questions. It raises questions about the nature the judicial obligation to show fidelity to the constitution itself. Is it proper for judges charged with interpreting a constitution which is expressed in writing and which has its own history, to be attentive to decisions mode elsewhere in different contexts and in relation to different constitutional texts?

It also raises related questions about a constitution?s role in shaping national identity. Should we understand a constitution as giving effect to a unique form of government, shaped by its own history and in response to local conditions? Or should we understand a constitution as implementing a form of government shared with other democracies? In other words, does a constitution reveal that the political community it governs is unique or that it is a member of an international community with shared values? Once these underlying questions are revealed, it should be less surprising that the question is actually hotly debated amongst scholars of constitutional law and judges charged with constitutional interpretation.

I am also aware that I am speaking about this problem in a context that is quite different to Australia?s. With no written constitution, the question of the use of foreign law in constitutional interpretation might seem inapplicable to New Zealand. Nonetheless, the New Zealand Bill of Rights Act 1990 (NZ), despite its status as an Act of Parliament rather than entrenched constitution, performs much the same role of identifying fundamental commitments and, perhaps, establishing national identity. Thus, the utility of foreign precedent, and particularly the manner of its use, are questions raised squarely by the New Zealand Bill of Rights Act.

Finally, I should note that while there is a parallel issue that arises in relation to the use of international law, I will put it aside, because it raises rather particular issues that would require separate treatment. International law raises the dimension of obligation: international law, unlike the judgments of foreign courts, sometimes places obligations on nation states. The matter is further complicated by the distinct forms that international law takes and the sources from which is drawn. Given the dimension of obligation, it may be that the case for the use of international law is even stronger than the case for the use of foreign domestic law. However, it deserves at least a separate treatment, which I will not attempt here.

Full post as published by Legal Theory Blog on September 28, 2010 (boomark / email).