Why courts borrow?

Abstract

Common law courts around the world have enriched their domestic adjudicatory process in human rights disputes by using foreign materials in the five different ways. These uses may be termed as follows: diagnosis, exposition, affirmation, functionalism, and universalism. When comparative jurisprudence is used diagnostically, it is used mainly to aid the court in framing the constitutional issue at hand. Comparative legal materials are employed to identify and illustrate a constitutional problem that exists commonly amongst many jurisdictions. An expository use of comparative jurisprudence allows courts to engage with foreign sources, with the sole purpose of differentiating the constitutional cultures and in the process, justify/explain its own unique position. When courts make an affirmative use of comparative resources, they essentially use foreign materials to confirm a legal result they have reached on their own interpretation of domestic law. These citations buttress the precedential value of the decision or enhance the persuasiveness of the new principle being formulated. When comparative sources are used functionally, the national court's focus is on learning from foreign jurisdictions by drawing on their constitutional experiences. The foreign jurisprudence is used as a preceptive tool to guide the domestic court in reaching a decision when a similar issue confronts them. In turn, courts might move toward homogeneity in their judicial response to the same constitutional dilemmas as they are all drawn by the intrinsic logical force of the foreign constitutional discourse. Some advocates of comparative constitutionalism speak of certain universal principles that are embedded in the law of the community, which may be discovered if judges engage in a universal use of comparative materials. This use of comparative jurisprudence allows courts to examine the universal, or transcendent moral truths, discovered by their foreign brethren, with the eventual aim of incorporating them domestically. This paper explores in-depth each of the five modes of comparative reasoning and how they have been applied in human rights discourse by common law courts around the world.