The Role of Comparative Law in Statutory and Constitutional Interpretation

Abstract

This article addresses the role of comparative law in the context of constitutional and statutory interpretation. More specifically, it deals with the normative question of whether courts can justify the ascription of a particular meaning to a constitutional or statutory provision by comparative reasoning, that is, by reasoning involving a reference to foreign law.

For analytical purposes, it is important to note that comparative law can be used in basically two ways to justify a particular interpretation of a constitutional or statutory provision.

First, it can be made part of traditional forms of legal reasoning. In the United States, as in other countries, there exists a standard set of criteria that are frequently referred to when it comes to justifying the interpretation of a statutory or constitutional provision. These criteria particularly include the plain meaning of the words of the statute, the legislative intent, the purpose of the statute, and - pragmatically - the desirability of the consequences that are likely to result from a particular interpretation. Comparative law can be made part of those arguments. For example, one can try to predict the likely consequences of a particular construction by evaluating the experiences made in other countries that have adopted similar solutions. The use of comparative law as part of such traditional arguments does not pose particular challenges.

Second, however, one can also imagine a form of legal reasoning where foreign statutes or decisions by foreign courts are per se advanced as arguments in favor of or against a particular interpretation. The court's argument then takes the following form: One reason for choosing interpretation A is that courts in the country X have interpreted a similar statute in X to mean A. One can refer to such arguments as authority-based comparisons.

Relying on Habermas' version of the discourse theory, this article argues that authority-based comparisons are, in fact, a legitimate form of legal reasoning.

Keywords: Comparative, constitutional, interpretation, construction, Habermas, Breyer, Scalia, Printz, comparativism, reasoning, dicourse, consensus, truth, Alexy

JEL Classification: N40, K10