Saunders, Cheryl --- "Judicial Engagement with Comparative Law" [2011] ELECD 391; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 31

Section Title: Judicial Engagement with Comparative Law

Author(s): Saunders, Cheryl

Number of pages: 28

Extract:

31. Judicial engagement with comparative law
Cheryl Saunders



1 INTRODUCTION
1.1 Rationale

Over a period of a decade spanning the turn of the 21st century, references to foreign consti-
tutional 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 2005­6, 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 impor-
tation 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 ...