Judicial comparativism and judicial diplomacy.

• Author: Law, David S.
• Position: VI. Conventional Explanations for Comparativism through Conclusion: Judicial Diplomacy and Jurisprudential Networks, with footnotes, p. 997-1036

6. CONVENTIONAL EXPLANATIONS FOR COMPARATIVISM

   Explanations for judicial comparativism can be divided into what might be called "demand-side" and "supply-side" explanations. Demand-side explanations focus on the preferences that judges have with respect to comparativism (or, put differently, their demand for foreign legal expertise). Supply-side explanations focus on the extent to which judges possess the resources and capabilities needed to engage in comparativism (or, in other words, the supply of foreign legal expertise available to judges). To fully understand the occurrence of comparativism, it is necessary to investigate both the supply and demand sides of the equation. Judges will not engage in comparativism, or any other practice, unless they possess both the inclination and the ability to do so. Moreover, supply and demand cannot be discussed independently of one another because they are interdependent. Over time, demand increases supply by incentivizing investment in the necessary institutional infrastructure, while supply increases demand by lowering the cost to judges of engaging in comparativism.

   Most discussion of comparativism tends to dwell on the demand side of the equation, to the neglect of the supply side. There is little agreement, however, over what motivates judges to seek out foreign law. The most conventional explanation for judicial comparativism, in the sense of being the explanation typically offered by judges themselves, casts judicial motivations in a flattering light: judges practice comparativism because they believe that it enriches their knowledge and thus the quality of their decisionmaking. (305) The explanation advanced by opponents of comparativism posits a less noble set of judicial preferences: judges resort to foreign law, critics argue, for the purpose of justifying ideologically desired results that lack sufficient support in domestic law. (306)

   Although empirical research suggests that there is at least an element of truth to the less charitable view, (307) scholars have identified a much broader range of reasons why courts may develop a taste for comparativism. (308) The level of judicial interest in foreign law could, for example, be a function of the adequacy of domestic jurisprudence. A court faced with a relatively sparse body of domestic jurisprudence might use foreign law to perform a gap-filling function. This might be the case for a relatively new court, a court confronted with regime change (such as democratization) that fundamentally alters its own role and calls for reexamination of its existing jurisprudence, or a court faced with a relatively new constitution. (309) This period of jurisprudential scarcity is likely to coincide, moreover, with a period of political and institutional flux that raises an abundance of unusually important or contentious constitutional questions, (310) which may only increase the court's need for authority of some kind to justify and legitimate its decisions. (311)

   From a theoretical perspective, it is unclear whether courts in mature legal systems will necessarily make less use of foreign law. There are at least three distinct possibilities that point in different directions. The first possibility might be called the substitution hypothesis: to the extent that foreign law fills a void left by a lack of homegrown jurisprudence that coincides with a period of heightened need for legal authority, judicial comparativism might be expected to decline over time as domestic law offers an increasingly adequate substitute for foreign law. (312) A second possibility might be called the habituation hypothesis: comparativism is habit-forming and becomes increasingly well accepted and difficult to dislodge over time. Yet another possibility might be called the circumvention hypothesis: judges engage in comparativism precisely because there is domestic law on point that they wish to avoid or circumvent. When precedent stands in the way of a court's objectives, the court must turn elsewhere for support, and the use of foreign law may help the court to overcome the obstacle posed by domestic law. (313)

   Use of foreign law can also be a way for a court to elevate its status and promote acceptance of its decisions among domestic audiences by identifying itself with high-prestige courts and countries. (314) The practice of looking to a handful of prestigious and influential countries for guidance may be perceived not as a form of illicit judicial activism, but rather as a constraint upon judicial discretion and thus a source of legitimacy. (315) Courts that need to consolidate their authority have the most to gain from making strategic use of foreign law in this manner. Therefore, all other things equal, relatively new courts and courts in new or transitional democracies might be expected to engage more heavily in comparativism. (316)

   Our four East Asian case studies offer fresh perspective on these hypotheses. Although the substitution hypothesis makes logical sense, it does not appear to be the case that courts resort to comparativism only in the absence of sufficient domestic jurisprudence. The example of Canada is sometimes cited as support for the substitution hypothesis: it has been argued that two or three decades of judicial experience with the 1982 Charter of Rights and Freedoms led to a decline in the Canadian Supreme Court's use of foreign constitutional jurisprudence. (317) However, nearly as much time has elapsed in South Korea and Taiwan since democratization and the emergence of vigorous judicial review, yet the accumulation of over a quarter-century of domestic jurisprudence does not appear to have curtailed the practice of comparativism by either the KCC or TCC. Thus, at least for Korea and Taiwan, the habituation and circumvention hypotheses are more consistent with the evidence than the substitution hypothesis. It may be that the explanatory power of the substitution hypothesis turns at least partly on institutional factors that vary from court to court. For example, substitution of domestic for foreign jurisprudence may be less likely if a court has the time and resources to conduct both foreign and domestic legal research and thus is not forced to choose one at the expense of the other. The KCC, at least, fits this description.

   It is also clear from the case studies that many judges value comparativism as a means of enhancing rather than undermining the legitimacy of judicial review. Whereas constitutional comparativism has attracted fierce criticism in the United States, (318) popular reaction may actually encourage the use of foreign law in places such as Korea, Taiwan, and Hong Kong. As a member of the TCC noted, the ability to say "this is how it's done elsewhere" and "we used a foreign mainstream standard" can, in especially controversial or politically sensitive cases, provide a "kind of safe harbor" from criticism that a court is fashioning answers out of whole cloth to suit its own whims. (319) Judicial comparativism can have these legitimating effects, moreover, even if judicial style disfavors the explicit citation of foreign law. Those in the legal community have little difficulty recognizing the telltale signs of foreign jurisprudence. (320) No footnote is necessary, for example, when the TCC suddenly introduces the terminology of "clear and present danger" (321) in a case involving public demonstrations. (322) As one justice observed: "Yes we say it in Chinese, but people know what it means in English." (323)

   No discussion of comparativism would be complete without at least some discussion of a variable that figures prominently in the comparative law literature--namely, the distinction between common law and civil law jurisdictions. Neither legal tradition appears to be inherently more conducive to comparativism than the other: within East Asia, one finds examples of both civil law and common law courts (the KCC and TCC on the one hand; the HKCFA on the other) that engage heavily in constitutional comparativism. That does not mean, however, that membership in a particular legal family has no implications for the practice of judicial comparativism. The effects of this variable are seen not in whether comparativism is practiced at all, but rather in how it is practiced.

   First, common law courts tend to be more transparent about comparativism than civil law courts, in the sense that they are more likely to reveal their use of foreign law by explicitly citing it in their opinions. (324) The HKCFA's citation practices render its opinions a more reliable indicator of foreign law usage than those of the KCC, TCC, or JSC. Second, membership in a particular legal family appears to have a substantial effect on which jurisdictions tend to be chosen for comparison. In East Asia, those jurisdictions that borrowed directly or indirectly from the German legal tradition continue to look toward Germany, whereas a history of British colonialism instead yields enduring jurisprudential ties to other Commonwealth nations. The result is what Alan Watson calls "transplant bias": courts do not "systematically search" for the most informative or relevant foreign models but instead return time and time again to a handful of favored examples. (325) These examples will not necessarily be the most intellectually illuminating or substantively comparable ones but will instead reflect such factors as historical legacy and global prestige. (326)

7. DIPLOMATIC EXPLANATIONS FOR COMPARATIVISM

   Judges sometimes engage with foreign law and foreign courts for reasons that have little to do with the performance of legal or adjudicative functions. Their motivations can instead be more diplomatic than legal in character. Scholars may disagree over the normative desirability of judicial diplomacy, (327) but as an empirical matter, judicial diplomacy is already occurring. And it is occurring because constitutional courts have both...