Beyond cherry-picking: selection criteria for the use of foreign law in domestic constitutional jurisprudence.

• Author: Friedman, Andrew

1. INTRODUCTION

   In the world of international constitutional law, the use of foreign judicial decisions in domestic jurisprudence has long created controversy and confusion for both lawmakers and legal scholars. This once seemed strictly an American problem because of America's unique system of judicial review; however, with the tremendous growth in constitutional courts throughout the world, the debate has expanded greatly over the past few decades. (2) While some countries decry the practice or merely avoid it, others embrace its usefulness and specifically authorize justices to examine foreign law. (3)

   Perhaps the first point that must be reiterated on the use of foreign jurisprudence for domestic constitutional interpretation is that nothing in this article--or any other publication--implies that foreign jurisprudence should ever be considered in any way binding. (4) While at this point of comparative scholarship, such a clarification would seem both trivial and obvious, it still bears mentioning.

   Beyond this caveat, there are many purposes for examining foreign jurisprudence. The three that are discussed below are in no particular order and are in no way comprehensive. They are merely a restatement of three vital purposes that feature prominently in both comparative constitutional jurisprudence and comparative academic literature.

   While there are countless functions of foreign opinions in the jurisprudence of the South African Constitutional Court, perhaps the most prominent is the examination of the logic and reasoning used to confront a particular problem. As Professor Ursula Bentele writes, "[o]bviously the substantive law is not what matters, but rather the reasoning at work in confronting a common problem or issue." (5) When one is confronted with the opinion of a foreign judge, one is forced to examine his or her own biases, prejudices, and opinions, and it is imperative to the act of judging to be open to persuasion. (6)

   It is also worth mentioning that before one even examines the reasoning of a foreign justice, it is often helpful to examine foreign opinions in an attempt to identify the problem. As former South African Constitutional Court Justice Laurie Ackermann observes,

   without the correct formulation of a constitutional problem, it is hardly possible to come up with the right constitutional answer. Of course, the right problem must, in the end, be discovered in one's own constitution and jurisprudence, but to see how other jurisdictions have identified and formulated similar problems can be of great use. (7) The final justification for the use of foreign jurisprudence in constitutional decisions that will be discussed here is the growing prominence of a "common thread" of standards that are applied universally. The South African Constitutional Court looked to foreign law for such a common thread with regards to the South African Constitution's Article 12 assurance that every individual has the right "not to be treated or punished in a cruel, inhuman or degrading way." (8) The court interpreted this section by surveying similar provisions throughout the world to determine what was generally considered cruel, inhuman, or degrading. (9) In effect, the court found that as all humans have a right to be free from such treatment, it was worthwhile to examine the determinations of foreign courts as to what punishments are classified as such. (10) A similar "common thread" could easily be found in many if not all of the fundamental human rights concerns that are discussed here.

   This article aims to move beyond the question of whether foreign law should be used in domestic constitutional jurisprudence and into the realm of which foreign sources should be relied upon and why these sources should be given particular attention. It has been said in past literature that one of the main objections to the use of foreign analysis is the methodological concern over "forum shopping" or "cherry-picking," in which a justice determines his or her preferred policy result and simply surveys international courts to find a source to achieve the desired end. (11) If this were to accurately describe the process by which justices come to decisions, it would be disastrous. Luckily, according to justices of the Constitutional Court of South Africa--a court intimately familiar with the examination of foreign law--it does not accurately describe the process by which they determine what foreign sources to examine.

   Many factors are considered when choosing foreign legal sources. According to Deputy Chief Justice Dikgang Moseneke, a key consideration is whether the society is an open and democratic one. The country foreign sources are chosen from should mimic the regime type of his country. (12) The foreign jurisdiction should also have a similar system of adjudication--in the case of South Africa, adversarial. (13) Similarly, several of the South African justices described subject matters on which foreign courts had confronted problems similar to those in South Africa and thus were valuable sources of reasoning. (14) These problems include demographics, economics, and general values, and will be discussed in much greater detail below.

   This article's purpose is to discuss what broad-based factors should be used in determining sources for foreign jurisprudence in constitutional litigation. The focus of the article will be legal actions regarding fundamental human and socioeconomic rights. Foreign jurisprudence is indeed useful in other areas of the law. However, these areas are outside of the scope of this paper.

   The first broad-based factor that should be examined when using foreign jurisprudence is the circumstances that surrounded the drafting of the constitutional provision at issue. It is important to note that all law, including constitutional law, exists within a particular context. This context includes a country's unique history, distinctive economic and social circumstances, and political system. (15) In the particular arena of constitutional law, it is frequently the responsibility of justices to examine where the law fits within the circumstances in which it was created. If there are tremendously different circumstances that surround the passing of a constitutional provision in a foreign state, although it appears similar, the meaning could vary substantially.

   Another important factor in constitutional analysis is the interest the provision was written to protect. (16) While at first glance two countries' constitutional articles may seem similar, if they were crafted to protect different interests, it is very unlikely that they represent the same underlying principles. Jurisprudential analysis would thus not be particularly worthwhile to foreign courts. A careful analysis of the jurisprudential history and background surrounding the constitutional provision is therefore necessary.

   The economic status of the country, including its access to finite resources and the social characteristics of the state, are the final two factors that will be discussed in this paper. Although not specifically legal, they are of a legal realist nature and do affect the function of law.

   It is vital that, when examining foreign jurisprudence, states take into account economic differences. While in a perfect world this would be irrelevant, the constitutional adjudicator does not do his or her work in a vacuum. A particular decision that would have one result in a country with tremendous wealth might have a vastly different result in an impoverished nation. Economic differences, therefore, are something that must be taken into account. (17) A decision without such consideration could have disastrous results.

   Finally, countries' social characteristics--including racial, religious, and ethnic makeup--as well as their particular histories are very important when selecting foreign legal sources to examine. For example, in South Africa, the post-apartheid democratic constitution was written in a progressive manner that would not only protect rights but would also alleviate past inequities. (18) A country without similar past inequities may not be a good source of legal analysis for the South African Constitutional Court. Thus, for the South African Constitutional Court or any constitutional court, when looking to foreign legal sources, it is very important to examine whether those sources are informed by a similar historical and social context. (19) Foreign laws without such similar context would likely be distinguishable.

2. CIRCUMSTANCES AT DRAFTING

   It has often been said that the law is reactive. (20) Nowhere is this generalization more apt than in the world of constitutional law. There is no country where the foundational legal documents emerged from a mere vacuum. As Justice Laurie Ackermann observed, constitutions "often reflect ... a response to particular histories and political and social ills." (21)

   Evidence of such an eye towards the past can often be found within the preambles of various foundational legal documents. For example, in the South African Constitution, written in order to embrace democracy after a decades-long struggle to defeat apartheid, the preamble both "[r]ecognise[s] the injustices of [the nation's] past" and "[h]onour[s] those who suffered for justice and freedom in [South Africa]." (22) Similarly, the Eritrean foundational document, written in the wake of a three decades-long war for independence from Ethiopia, recognizes those "who sacrificed their lives for the causes of [Eritrean] rights and independence." (23) While most subsequent "constitutional moments" occur in times of less societal transition, it is no less important to examine the context from which those provisions emerge. (24)

   The particular circumstances surrounding passage can influence an entire constitutional document, or merely a single provision. For example, the South African Constitution was passed in the wake of a racist...