Foreign Precedents in Constitutional Litigation

Abstract

In the last 10 years, the literature on the so-called “trans-judicial communication” has grown vast, mainly in the English-speaking world, where these studies are long-established and deep-rooted. Prominent scholars have focused on the emergence of a “global dialogue” bringing judges around the world closer to each other and emphasized that, more often than in the past, courts in performing their adjudicatory functions find inspiration in foreign case law, engaging in a conversation with other judges worldwide. The purpose of this subject is to assess, beyond the vast amount of theoretical scholarship, the reality and true extent of the trans-judicial communication between courts by looking directly at case law. For this reason, the use of foreign precedents by constitutional judges is the object of this research. The word “use” is purposefully employed in a broad fashion, to indicate, both explicit citations and implicit influences in constitutional interpretation, although the main focus is on explicit citations. In taking this view, I am aware that lack of express citations in the decisions of many courts should not be considered indicative of lack of knowledge of foreign case law by the judges. In all honesty, I believe such unawareness to be impossible in today’s globalized and interconnected world. Modern computer technology, personal connections between justices, developments in legal education, only to name a few factors, have made the “circulation” of case law easier and frequent. Unquestionably, foreign jurisprudence exercises a “hidden” influence on all jurisdictions. Even the most strenuous detractors of citations to foreign jurisprudence, like former Justice Antonin Scalia of the United States Supreme Court, in the end contradicted themselves, and have not been able to deny that some knowledge of foreign decisions is ultimately valuable. “Foreign precedents” means judicial decisions of another national jurisdiction, at the constitutional level. The word “case law” is used as a synonymous. Other extra-systemic materials such as citations to foreign constitutions, foreign statutes and foreign legal literature may represent an indication of the openness of a court. The use of international case law is excluded from the research: I strongly believe that reference to international case law can divert the attention from the optional and purely voluntary horizontal dialogue between courts, by introducing elements of vertical “compulsory dialogue”. The only exception to this rule is: when the country is not a party to a treaty, because in this circumstance no hierarchical relationship exists between national and international or supranational institutions (for example, citation to the European Court of Human Rights (ECtHR) by the US Supreme Court, by the High Court of Australia, by the Supreme Court of Mexico or by the Canadian Supreme Court, etc., can still be considered a sort of horizontal, voluntary communication). “Constitutional litigation” means specialised constitutional courts in the countries following the “Kelsenian model” of judicial review. However, the expression also includes supreme courts which adjudicate constitutional cases in the countries following the “American model” of judicial review. In this latter case, since normally supreme courts are vested with several competences, it was necessary to identify the boundaries between “constitutional” and “non-constitutional cases”. I opt for a broad approach, and defined “constitutional” any case involving the “constitutional interpretation” and dealing both with “institutional” and “human rights” issues. At the end of the research, it is clear that citations of foreign case law reveal “something” that has doubtless been incorrectly named. Nonetheless, it is right not to underestimate the power of suggestion that this misnomer holds: it is part of the transformation of our collective approach to the normative significance of new legal objects.

This study of the use of foreign precedents concerns a sample of 18 supreme and constitutional courts across four continents and belonging to the two main legal traditions. The choice of countries was beyond our control but the sample is representative nonetheless (despite the absence of Africa : it is worth noting that Africa is often left out of international comparative studies, with the exception of South Africa, which is essential to any such research).

The practice of explicitly applying foreign precedents appears to be limited from both a quantitative and a qualitative point of view (this has already been demonstrated: Tania Groppi, Marie-Claire Ponthoreau, (eds.) The Use of Foreign Precedents by Constitutional Judges, Oxford (2013). Compared with the sample of sixteen courts proposed for that particular publication, the present report is based on new case studies: Argentina, Belgium, Brazil, Croatia, France, Greece, Italy, Latvia, the Netherlands, New Zealand, Portugal, Singapore and Venezuela.). Nevertheless, the findings vary between a group that cites a great deal (this group is made up of the High Court of Australia; the Supreme Courts of Canada, New Zealand and Argentina; and the Constitutional Court of Portugal.) and one which cites very little (this group is made up of the Constitutional Courts of Austria, Croatia, France, Germany, Latvia and Taiwan; and the Supreme Courts of Brazil, the United States, Japan, the Netherlands, Greece, Singapore and Venezuela.); they therefore merit closer examination in order to show what separates the two groups fundamentally.