1

Workshop 7: Latest developments in constitutional theory and doctrine

Paper: LIMITS AND POSSIBILITIES OF THE USE OF FOREIGN MATERIALS BY COURTS, IN CONSTITUTIONAL ADJUDICATION: Redefining the Role of Comparativism in Theories of Constitutional Interpretation

By Luiz Magno Pinto Bastos Junior, Associate Professor of the University of Vale do Itaja (UNIVALI) PhD Student at the Federal University of Santa Catarina (UFSC) Santa Catarina - Brazil

1 INTRODUCTION

This article analyzes the impacts on constitutional theory, of the use of foreign materials by the national courts, in the process of constitutional adjudication. It makes particular reference to this practice by countries linked to the tradition of civil law. This use of foreign materials has indicated as a global trend (McCrudden, 2000, p. 506) and a phenomenon that is sometimes hailed with great enthusiasm (Ackerman, 1996; Kommers, 2002; Weinrib, 2002), but sometimes provokes severe objections (Rosenkrantz, 2003; Fletcher, 198) or criticisms (Frankenberg, 1985; rc, 2000). Nonetheless, it is not a new phenomenon. The use by judges, of foreign experiences (legal scholars, foreign statutes and judicial rules) in the process of judicial reasoning, can be easily identified in various periods of history of the western constitutional tradition. These borrowings are usually associated with different purposes: as a way of filling in gaps in the system, arising from the duty of non liquet of the Judiciary Power; as a means of clarify obscurities in the text and supporting decisions in new and challenging cases; as a way of legitimizing the practice of recentlycreated institutions or democratic orders (re)instated through the borrowing of authority arising from consolidated constitutional institutions and experiences; as a way of increasing the level of international legitimacy of the practice of the court; or even as a mere constitutional ornament and resource for argumentation, for the erudition of magistrates. If this is not a completely new reality, why has it been identified as a new phenomenon which requires special treatment by constitutional theory (as is defended here?)

2 Three different factors can be identified which, together, give this instrumental concern (recourse to elements of comparative law as a strategy for argumentation) great preeminence in the constitutional theory itself. They are: (a) the existence of a process of globalization and interpenetration of the legal systems, impregnated with a universalizing discourse (Helfer; Slaughter, 1997); (b) the existence of a global movement of the redefinition of the functions of the Judiciary Power, which confers on it a major role of veto player and co-participant in the definition of the public agenda (the phenomenon of judicialization of politics), which is processed at a national and supra-national level (Tate; Vallinder, 1995); and, (c) a sudden change of course in the directive role itself, to be undertaken by the constitution (and in the last instance, by the law itself) which requires a general duty to justify the public reasons for the decisions, bearing in mind the overcoming of the formal and positivist paradigm (Carbonell, 2003). Therefore, in this context, comparative law, which has always been associated with the idea of importing better ways of ordering the matter that other constitutional systems have discovered (Tushnet, 1999, p. 1307), by emphasizing transnational dialogue (with normative intent) has an accentuated subversive character (Fletcher, 1998) and one of destabilization (Frankenberg, 1985), which internalizes an external vision of the constitutional system, as a factor of criticism and valuation of the premises adopted, and of the results obtained in the national processes of balancing values in the constitutional adjudication. In order to fulfill its proposals, this work is divided as follows: (i) firstly, it presents some general considerations on constitutional borrowing, in order to define more precisely the scope of this research; secondly, (ii) the legitimacy of the use of comparative law is presented in summary form, with the intention of presenting a brief systematization of the foreign sources which have been used in the process of judicial reasoning; in the following section, (iii) it addresses the discussion on methodological challenges, in order to demonstrate that, owing to the structural difference in the form of legal reasoning between the context of justification of decisions in the systems of common law and civil law, these issues, in many situations, appear to lack sense and practical relevance in the context of traditions of civil law; and finally, (iv) after recognizing that the recourse to constitutional dialogue may be situated in the context of argumentation strategies of the courts, it seeks to identify how this growing use, in countries with a tradition civil law, contributes to a wider process (already underway) of hermeneutic trend in the theories on constitutional interpretation and on the way the current role of the constitution itself is understood. 2 CONCEPTUAL REMARKS ON CONSTITUTIONAL BORROWINGS The expressions constitutional borrowings and constitutional transplantations have been used in a wide variety of senses by authors, and involve a wide range of phenomena related to the

3 processes of circulation of constitutional models. These processes can be analyzed from different focuses. 2.1 DIFFERENT APPROACHES TO PROCESSES OF CONSTITUTIONAL

TRANSPLANTATION The approaches to the phenomenon of the circulation of constitutional models can be grouped into two main areas: The first is linked to the key themes of comparative law (comparative constitutional law in a more traditional version); the second gathers studies concerned with analyzing the practice of the courts which engage in processes of "constitutional dialogue". The first area gives greater emphasis to issues of methodological nature, and presents a greater appeal and penetration among authors of the civil law tradition, focusing the debate around constitutional transplants in the theoretical milestones of comparative science and constitutional history. By way of example, these approaches can be classified as follows: (a) readings which seek to identify constitutional movements and the process of expansion of liberal-democratizing ideas, and those of the republican institutions, from a perspective of the history of constitutionalism and political ideas (Van Caenegem, 1995; Mateucci, 1998; Fioravanti, 1998, 2000; Sanchez Agesta, 1974); (b) the identification of the existence of major constitutional systems, re-constructed through the comparative analysis of processes of differentiation-approximation (macro-comparison) (Di Ruffia, 2000; Garca-Pelayo, 1993; Di Vergotinni, 2004; Sanchez Agesta, 1974); (c) efforts to identify the processes of approximation and reciprocal influence between these different models, or emphasizing the origins (Henkin; Rosenthal, 1988), sometimes emphasizing the dynamic aspect of receiving/sending of legal institutions (paradigm of the textual levels) Hberle, 1996); or else, (d) efforts to identify the common elements of shared law, notwithstanding the individual characteristics and national peculiarities, by certain western countries, bearing in mind the existence of a cultural framework which is interconnected and has common elements (Law, 2005; Hberle, 2000). The second area, in turn, gains greater prominence in the cultural environment of the countries which have a tradition associated with common law, in the spaces of international law (with special reference to the international law of human rights), and are, to a greater or lesser extent, associated with the idea of a process of internationalization of the judicial practice and of constitutionalism on a global scale In these scenarios, approaches are highlighted which: (a) emphasize the strength with which these communicational relations are established among the courts (Slaughter, 1994); (b) the existence of relations of reciprocal influence and transplantation between different normative levels internal and international system (McCrudden, 2000); and

4 the attitude of receptivity and dialogue of the courts, in relation to foreign law, as having a persuasive authority (Glenn, 1987). This range of perspectives associated with the idea of the transplant model, or constitutional borrowing1, as it takes in an infinite range of very different situations, can be summarized, as proposed by EPSTEIN AND KNIGHT (2003, 196-197), in three main approaches: (a) when any citizen, based on the observation of other institutional practices, proposes reflections on the need for constitutional change2; (b) when, during the process of creation of the constitution (and the process of legislative elaboration), the congressmen base themselves in experiences of other constitutional texts at the moment of drawing up their own constitutions; (c) when the judges take into account the decisions of foreign courts, to resolve the disputes established. This article seeks to analyze the impacts of the latter practice, on constitutional theory. In order to better delineate the context of this article, the next section identifies the different contexts in which this dialogue is processed. 2.2 DEFINING THE FIELD OF TRANSNATIONAL DIALOGUE The so-called transnational dialogue seeks to take in all the activities of judicial adjudication in which the judges make use of foreign constitutional experiences as part of their argumentation strategy. Although the logic of the construction of reasoning is very similar, it was decided to identify two contexts of application. the decision of the international courts and the decision of the national courts. In the international courts for resolution of disputes, the recourse to elements of comparative law is a well-consolidated practice, and one of the predominant methods of judging issues before these courts. The recourse to this strategy is particularly relevant when defining the content and scope of the general principles of law, and the recognition of the valid customary rules. This prospecting of national sources fulfills a dual purpose: (a) to identify elements common to the different normative universes, in order to fill the content and define the scope of the general principles of law (Koopmans, 1996); and (b) in particular, in the scope of community law, to increase the level of legitimacy of decisions at community level, and thereby stimulating the national courts, which are responsible for the implementation of community court decision in

Yazbek (2001) presents a panoramic view on the different expressions that are being used to talk about the facets of the phenomenon of transfer and circulation of legal models. This text deals with the systematization of theoretical proposals and models which explain the process of transfer, in which, according to the understanding, should be better understood by jurists. 2 In other words, the debate which occurs in the free exchange of ideas which should mark the public space (discussions and results in comparative science, the free confrontation of ideas divulged by the press, media, etc).

5 regime of judicial coordination (Schutter, 2005), to be linked more "spontaneously" to the guidelines established in their judgments (Grossfeld, 2000). It is also emphasized that recourse to the decisions of the European Court of Human Rights, by the Inter-american Court of Human Rights has been frequent, when this court assumes the possibility of learning from the experience of its congeners, in the protection of rights which, textually, are similar, in the two charters of regional rights. In the scope of the national courts, the reference to foreign experiences has always been very common (Saunders, 2006). However, despite the identification of an effective approximation and intensification of the dialogue between the courts and the different constitutional experiences, numerous kinds of objection and resistance can be found in relation to the use of this strategy of argumentation in the process of judicial reasoning. The understanding of the recourse to comparative law, or even the trend(whether greater or lesser) towards carrying out juscomparison in legal processes, is related to a multifaceted set of factors which will be presented here, merely by way of examples. a greater or lesser degree of receptivity in the legal and political culture of countries, to the phenomenon of legal reception; the way in which the court is linked to the system of sources and the use of normative materials in the process of legal reasoning3; the way in which the constitutional text or the national courts themselves understand the relation between internal law and international law (interpenetration of the legal orders) and the cultural bases which connect the national experience with foreign experiences (links with a set of shared traditions and relation of legal heritage).

2.3

CRITICISM AND OBJECTIONS TO THE USE OF FOREIGN MATERIALS Numerous authors oppose to the use of these elements, particularly when the courts use

them in a constructivist or revisionist way, as they question the use of non-national elements as sources to be considered in the process of judicial reasoning. These objections are identified and analyzed under different aspects (McCrudden, 2000; Aanus, 2003, Tushnet, 1999; Choudhry, 1999). This article, based on Saunders (2006) opts to group these objectives in two ways: those which combine objections concerning the legitimacy of this recourse, and those which are directed against aspects of a methodological nature. The criticisms that place in check the very legitimacy of the recourse to comparative law in decisions, are opposed, above all, to the normative claims present in the various references to

A trend can be identified towards greater receptivity on the part of countries with a tradition of common law, at least in attributing greater weight to the process of supply of reasons for decision.

6 law, compared with the world community of states (Breening, in Lawrence vs. Texas), global constitutionalism (Achermann, 1997) or Rights revolution (Henkin, 1988). This is the objection eloquently raised by Scalia (Tushnet, 1999) and Fletcher (1994) and who, strongly marked by the North American debate which compares originalists and textualists, oppose the idea of using non-national elements, due to the need to preserve the national identity and integrating role of the constitution, in a society that is so marked by pluralism. Using very similar arguments (the idea of national identity), but inserted in a cultural context that is vastly different, and with different aims, Rosenkrantz (2003) opposes the recourse to comparative law, as he understands that an authentic national identity can only be created based on the development of autochthonous forms of self-understanding of the constitution and legal forms. Continuing to look to foreign sources as an argument of authority, in the internal scenario, encourages the development of totalizing or colonizing transpositions, leading to a renewed imperialism (neo-imperialism of the legal forms) Finally, a set of criticisms can be identified which, although focused on the use foreign materials, are addressed to the actual practice of the Judiciary Power. These criticisms are focused on the countermajoritarian difficulty. For these authors, the courts commonly use the practices of other jurisdictions as a way of legitimizing the solutions adopted. Recourse to the non-national element is more important when the content of the constitutional provision interpreted is less evident, when the intervention of the court in the practice of the other political bodies is greater, and when the intention of the court to revise its own jurisprudence is greater. In the way in which they are presented, opposing to the strategy of comparison is, ultimately, taking a position in relation to two central questions in the debate of contemporary constitutional theory, the role of the judiciary power (judicial activism vs self-restrain) and that of the constitution itself (defining the limits of the constitution). Another set of criticisms and objections relates to the methodological difficulties. Whether or not they are related to the question of the legitimacy of the use of comparative law, these approaches demonstrate the risks of abuse and misuse of the recourse to these elements, highlighting different aspects: (a) the difficulty (impossibility) of controlling the reasoning of the decision (what criteria are used for the choice of experiences to be placed in dialogue? Why these and not others?); (b) the risk of careless and decontextualized borrowings (Osiatynski, 2003), or even ones already superseded by more recent court decisions (Saunders, 2006); and, (c) challenges relating to the comparative methodology itself (functional identification of the elements to be compared, the difference in language and the impossibility of precise understanding of the full sense and scope of the experience to be compared).

7 Also, attitudes can be seen that place in doubt the very possibility of using the comparison, either because they oppose the apparent neutrality of the one doing the comparing (Frankenberg, 1985), or for questioning the epistemological bases (or a lack of them) on which the legal comparisons are carried out (Schaffer, 2005). All these objections raise important aspects that should be taken into consideration when one intents, at the same time, to understand and describe this practice, on one hand, and recognize it as an important argumentation strategy capable of providing resources for the decision-making of courts, on the other. One consequence of the question related to the legitimacy of using non-national sources, is the debate on the identification of materials to be used for the comparison, the weight (or degree of binding) attributed to them, and the legal basis of their normative authority. These are issues that will be raised in section III The questions relating to the understanding of the current practice of the courts (the desire to describe the reality) and the possibility (or not) of the appropriate method (or methodologies) for the use of these sources, will be the specific object of section IV. 3 IDENTIFYING THE FOREIGN MATERIALS USED AND CONCERNS ABOUT THEIR BINDING FORCE This section attempts to identify the materials that are commonly "borrowed" as elements in the constitutional dialogue. The objective is to establish a reference guide on the different sources, their context of use and, as a result, the value (weight) attributed to them in the process of judicial reasoning. This specific concern to identify the nature of the sources and their weight (argumentative force), despite being divested of great importance in the legal models based on common law, in the law influenced by the civil tradition, it appears to have a decisive impact on the process of identifying the determining arguments in a given legal decision. For this, the use of sources was grouped based on the degree of referencability of the norm applied to extra-state normative contexts. This proposal of systematization was partially inspired by the methodology defined by Drobnig and Van Erp (1997) and has the following focuses: to identify the type of source to be used; the basis of legitimacy of its use; and the degree of binding to which the national legal system is subject. 3.1 NORMS WITH AN INTERNATIONAL ELEMENT Two groups of norms can be identified which call upon the use of non-national normative elements. The first consists of situations which are traditionally associated with the applicability of

8 the principles of interpretation (criteria for resolving disputes) belonging to private international law; the second group relates to the norms of international law itself, within which special reference can be made to the norms which define human rights. 3.1.1 Resolution of disputes and principles of interpretation in the scope of private International Law This group consists of different situations in which the judicial practice has traditionally recognized (and, in some situations, the need is admitted) for the use of elements of comparative law to resolve those challenges. In the report of DROBNIG (1997, p. 7-16) situations can be identified involving: (a) the application of conflicts arising from Uniform Law internalized in the national legal system; (b) resolution of cases which require the identification of the applicable legal system and adequate jurisdiction in disputes involving private interests which are transnationally connected; (c) application of rules of maritime and air navigation law, which are strongly regulated by international conventions and foreign links. The recourse to foreign experience, in these cases, has traditionally been analyzed by international private law, and deliberately, does not constitute the specific field of concern of this research. 3.1.2 Application of the norms of public international law in the internal legal system The is great controversy, among the internationalists, concerning the relationship between international law and internal law dualism or monism which, ultimately, becomes a discussion on the scope of the concept of sovereignty and the overcoming of its formulation in classic terms. The identification of a general trend towards internationalization of the national legal system has been recurring, which is manifested based on two sets of factors. The firsts consists of the presence of express constitutional clauses which establishes links between national law and international law. These are fundamental political decisions which either authorize the immediate incorporation of international law at a full level; or else they confer prevalence or predominance on the norms of international law, in the case of conflict between internal laws4; or they establish rules for interpreting internal clauses "in conformity with international law". The second relates to the promulgation of the Vienna Convention, which establishes an important rule for the interpretation of international obligations of the States. In view of art. 27 of that convention, the State cannot invoke the existence of impediments in the internal law to excuse
4

The doctrine points out the need to speak of incompatibilities and not conflict of law, as it deals with norms which are raised with different sources of validity (at the international level and domestic level), for which reasons the conflicts should be resolved by the technique of non-application of the contrary law, which is typical of the judicial review of the North American system (Nogueira Alcal, 2000).

9 non-observance of its internationally assumed obligations (art. 27), including in relation to the constitutional norms. It is emphasized that, for international law, the internal law represents nothing more than a fact and the rules of interpretation of the treaties defined in the Convention apply, under certain circumstances, even to those countries which do not expressly adhere to it (customary law) (Canado Trindade, 1997). Thus, in accordance with those normative issues, the courts, when they concern themselves with issues used by international norms, must dialogue with (take into account) international law. As mentioned earlier, this duty arises, on one hand, from specific constitutional determination (clauses which open the constitution to international law) and on the other, a concern with some courts that their countries are not internationally recognized (and held responsible) for violating some assumed obligation. In these terms, the legitimacy of the court, to hold sway in international law, varies from an authoritative way, to a persuasive way. What, then, are the elements for which borrowing is sanctioned? The following are traditionally recognized as sources of international law: The general principles of law, international treaties and conventions, custom resulting from general, uniform practice of the States, and court decisions (precedents). Therefore, in situations in which the national courts find themselves facing questions involving the application of international obligations, their recourse to foreign materials is not only useful (interpretative topos) but necessary, in view of the international obligations assumed5. So far, the discussion has focused on the possibility (and certain obligation) of the court to use sources of international law, in this constitutional dialogue. However, many authors see, in the principle of good faith (art. 26) the possibility of extending the scope of the norms raised in conversation, to beyond the sources of international law itself. In this case, the purpose of establishing a regime of cooperation, in the process of better defining the content and scope of the international obligations and its interaction with the internal law, it would be lawful for them to resort what has been learned from the experiences of constitutions elsewhere (see 3.2). 3.1.3 The special case of treaties on human rights For what motives should the treaties on human rights be treated as a special case of international law?
The following situations can be mentioned as examples: Issues relating to parliamentary immunity and the extension of its protection; procedural guarantees recognized in relation to the law of consular protection of foreigners sued in the country; and the law of asylum and requests for extradition. 6 It is not intended to discuss, in this work, the possibility or not of considering the norms of human rights as a branch of law which has special characteristics that distinguish it from the others, as some authors seek to do, bearing in mind the destinees/beneficiaries of the international obligations assumed by the States (their nationals and all the foreigners who are within its jurisdiction) and the existence of specific rules of interpretation that tend to confer a higher degree of protection of the individual before the State. (Canado Trindade, 1997)
5
6

10 The national opening to sources of human rights is directly related to three aspects: the importance of the discourse of protection of human rights has assumed in the international agenda; the existence of constitutional clauses which deal, separately, with the status attributed to the norms of human rights at a domestic level; and the similarity between the object of protection of the norms on human rights and the domestic protective norms. The universalizing intention of human rights is the main theoretical basis prompting the transnational dialogue (see section I). These purposes seek to connect the different States around a minimum common agenda for the protection for certain groups of rights. This global constitutionalism occurs, among other elements, through the creation and strengthening of mechanisms of institutional inspection and the implementation of minimum guarantees at national levels (report system of the UNO, international courts of justice, regional courts of human rights, etc). It is possible, in turn, to identify a trend towards the transparency in constitutions clauses of opening (Hberle, 1998, 2000) of the national system to international norms on human rights. This is expressed through an extensive catalogue of countries which confer differentiated status on the diplomas of human rights, conferring on them, binding force which is equal to or higher than that of the national constitution itself7. This declared differentiation causes the courts to feel more strongly compelled to carry out constitutional dialogue when they find themselves facing materials that have specific regulation at international level, and even more importantly (with significant impacts on the logic of argumentation in countries with a tradition of civil law), they should take seriously the so called secondary law (i.e. the decisions of the supranational courts and instances which, in the process of adjudication, specify the content of the clauses which define human rights, and establish their scope) (Bettlem; Nollkaemper, 2003). Finally, due to the fact that the norms which define human rights establish obligations of the States to protect and promote the rights of individuals and society as a whole, at the internal level, its normative commands are similar to (and overlap with) the constitutional rights and guarantees which are already assured at domestic level. This overlapping has the effect of diversifying and widening the scope of protection and the mechanisms for claims that individuals have at their disposal in the context of the national States (Schutter, 2004). There is, therefore, a multilayered system of protection, in which the maxim of priority to the norm which is most favorable to the victims is valid (Canado Trindade, 1997).

For an inventary of the Latin-american constitutional provisions concerning the status of the Human Rights Treaties on the domestic legal order (see Canado Trindade, 1997; Nogueira Alcal, 2000). For a broader perspective that privilegiates the European constitutions (see Kokkot, 1999).

11 Due to this overlapping of contents, these norms, although they are publicized through international documents, are perhaps more appropriately discussed, due to the classification adopted, in the next sub-section (constitutional norms of a prima facie, domestic nature). However, due to the status that has been attributed to them by the national constitutions, and the challenges arising from this duality of systems in dialogue (international and national), they have been dealt with in a separate item. The reference to these norms (both primary and secondary law) enjoys, at the same time, a binding force which is in general, stronger than the norms of international law, and provides argumentation materials with greater persuasive authority. 3.2 CONSTITUTIONAL NORMS OF A PRIMA FACIE, DOMESTIC NATURE Constitutionalism has been identified as a set of political ideas and institutions aimed at redefining the rules created for the organization and rationalization of the exercise of power, and the establishment of a range of mechanisms for protecting the individual (Matteuci, 1998). In this context, an important normative function is attributed to the Constitution, and is understood as a text which not only emerges as a symbol of national identity, but redefines the rules of the political game, and establishes criteria for internal validity of the legal system. Fulfilling this role, the constitution is consolidated as an important factor for integrating the links in the community, and the guarantee of democratic institutions. In these terms, questions relating to the separation of powers, distributing competences among federal bodies, in the legislative process, to fundamental rights, judicial review, among others, consist of norms of a prima facie, domestic nature This recognition, however, has not prevented the courts from seeking recourse to other constitutional experiences to resolve cases presented to them. Various factors are used by the courts, to legitimize its opening (to a greater or lesser degree) to the dialogue with non-national experiences. Recourse to the provisions of international treaties, international custom, and case law of the international courts can be invoked (see 2.1.2 and 2.1.3), when these materials directly or indirectly affect questions of a domestic nature, such as rules concerning the acquisition of nationality, or lawsuit guarantees associated with due process of law clauses consigned in treaties on human rights, and in the jurisprudence of the Regional Court of Human Rights to which the state subscribes. On the other hand, the reference to non-national experience (legislation of other countries, legal doctrines, political theories, and case law of constitutional courts) has also been occurring frequently. Unlike the materials analyzed up to this point, this reference generally consists of a spontaneous attitude on the part of the court. The court recognizes that some or other experience is relevant, but does not view this link as obligatory. The court engages in this process of dialogue

12 with the purpose of extracting from these materials, useful arguments for resolving issues presented to it. Often, these experiences are used without any discussion of their legitimacy, and the weight conferred on these elements is directly related to the desired results and the function attributed to the comparative method, in the context of the sought after decision. 4 THE DEBATE ON THE USES OF FOREIGN MATERIALS BY COURTS Often, when describing the practice of the courts, whether directly or indirectly, authors make assessments on the approaches "described" by them, and in a certain way, seek to find in these standards of behavior, criteria for eventual control of the decision. This section gives a brief inventory of how the use of elements of non-national law by the courts has been described. It goes on to discuss the approaches which focus, beyond the methodological issues, on the use of non-national elements as a strategy for argumentation. Based on an external analysis of judicial discourse, it seeks to identify the different motivations which prompt the judge (or the court) to use non-national experiences, and the way in which these intentions contribute to their selection as argumentation strategies. 4.1 INVENTORY OF THE DIFFERENT USES OF COMPARISION BY THE COURTS Numerous attempts can be identified, to categorize the phenomenon of the use of nonnational experiences by the courts. These classifications attempt to identify standards of conduct, based on an empirical, (and therefore, presumably, descriptive) verification of the effective use of non-national experience by the courts. However, as Saunders (2006, p. 50) points out, they do not fully cater for the diversity of the ways in which courts refer to the constitutional law and experience of other jurisdictions. All this descriptive effort, despite representing just partial representations of the phenomenon8, furthers understanding of how the courts deal with questions of legitimacy and the adequate approach to the foreign element. Among the various approaches9 that exist, this work seeks to present, by way of illustration, those which had a more decisive influence on studies on this theme (Mark Tushnet and Sujit
8

The impossibility is postulated here, of defining an approach which takes this phenomenon into account, in its entirety. This is not only because the major legal systems have different standards of constructing judicial reasoning, but because: (a) the persuasion strategies of each of the courts is strongly circumscribed by the judiciary practices consolidated in that country; and (b) the way in which the court will use the non-national element cannot be described based on a coherent, pre-ordered practice, but is determined by the function to be performed by the non-national element in its argumentation strategy. 9 Damman (2002) refers to evaluative, intentionalist, textualist and authority-based comparisons. Drobnic (1997) distinguishes between necessary or voluntary use of comparative materials. McCrudden (2000) distinguishes, on one hand, between the general and indirect in opposition to the specific and direct influence of comparative constitutional materials; and on the other, between explicit and non-explicit uses of comparative constitutional law.

13 Choudhry), and which provide useful subsidies for identifying the link between the type of experience placed in dialogue with the court, and the argumentation strategies used by it to justify (legitimize) its use and the results obtained (Taavi Annus). According to Mark Tushnet, the use by the courts of foreign experiences in the process of constitutional adjudication is associated with movements of challenging national self-understanding on the content and scope of the constitutional dispositions. The way in which the courts deal with foreign materials represents the differentiating element in the typology presented by the author, namely: functionalist, expressivist and bricolage. The functionalist approach seeks to identify functional equivalents which shed light (better solutions) on the problems that emerge in national law; the expressivist approach takes, as its point of departure, an attitude that is initially refractory to the possibility of comparison, however, by focusing on foreign experiences, it attempts in some way to differentiate them from the national reality, and thereby refine the self-understanding of the values underlying its constitutional tradition (self discovery); and finally, an approach which he calls bricolage10, through which the interpreter, based on an attitude of openness and willingness to identify legal materials which assist him in the decision-making process, uses foreign experiences in a more or less random way (1999, p. 1237)11. The classification of SUJIT CHOUDHRY (1999), in turn, emphasizes the motives used by the court (whether explicitly or implicitly) to justify the dialogue established with the non-national elements. For Choudhry, the way in which the court understands this link with foreign experience affects the way in which it deals with the non-national element. In these terms, the author also proposes a three-fold categorization, whereby the courts make use of: A universalist interpretation (whereby the comparative interpretation combines with a wider movement of identifying the transcendent principles that can be discovered in the different constitutional realities); a genealogical interpretation (whereby the interpretation is justified by the demonstration of the existence of common features in the process of historical construction of each of the constitutional experiences); and, a dialogic interpretation (whereby the decision to carry out comparative interpretation is the result of a process of interpretive self-reflection in view of which the judges submit to the convenience of the comparison, when identifying similitude between the domestic proposals and the non-national ones). Comparing the way in which these models of interpretation respond to questions concerning their scope, their impact on the development of the constitutional

Koopmans (1996) identifies the uses in order to find a solution or justify a solution. Jackson (2001) highlights the purpose of internal utility or external legitimacy. 10 Tushnet seeks to transplant to the level of constitutional interpretation, the observation made by Lvi-Strauss that the entire process of cultural construction is the result of a more or less random composition of the materials available in the process of their consolidation. 11 These approaches, to a certain extent, are in line with the debates, in the heart of comparative law itself.

14 culture, and the normative claims entailed, Sujit Choudhry emphasizes the advantages of the dialogic interpretation over other forms, for establishing normative claims regarding comparative jurisprudence, as it enables the court to use comparative case law, without internationalizing its domestic constitutional culture, and because it has a broader scope of application. These previous authors attempt to establish a relationship between the motivation of the court and its approach to foreign law. Meanwhile, Taavi Annus (2002) takes a more pragmatic approach, which conceives its use along a spectrum, ranging, at one end, from what has been described as soft use of comparative law to, at the other end, what might be described as hard use of comparative law. In hard use, the courts resort to comparative law to provide normative arguments (the borrowing of reasoning of other courts, and reliance on foreign law to support or assist in the interpretation or application of a constitutional provision), and to supply empirical arguments (recourse to foreign experience in a way that is used to justify transplantation of the foreign rule, institution, or practice). From this differentiation, two questions can be highlighted: The weight attributed to the external element cannot be defined aprioristically, and the choice of arguments depends on their persuasive function (giving normative or empirical arguments). Both authors seek to move away from justifications of a universalist nature, and deny the existence of normative bases which require of the constitutional courts, the duty to bind themselves to precedents that have been transplanted" from other normative realities. This move away is voluntary, and is strongly related to a deliberate attitude of the court, which assumes a mandate to diminish the gap between actual conditions and political ideals (Jacobsohn, 2004, p.1772). This attitude of correction of imperfections presupposes that: a previous inventory of the domestic sources exists (Tushnet, 1999), there is a willingness to change the status quo, without breaking with the tradition of which it forms a part (Jacobsohn, 2004) and the recognition that it is an interpretative choice that is not justified by itself alone, due to the existence of a universalizing consensus (Choudhry, 1999). Thus, although the courts invoke the existence of a variety of universalist claims, to persuade their audience of the need for constitutional review of the legitimacy of the result reached, in the filling in of the constitutional gap, the recourse to comparative law, even in the judicial process, requires a (self)critical function and correction of courses, and never a role of prescriptive utopia (Pfersmann, 2001). 4.2 ARGUMENTATION STRATEGIES AND THE NORMATIVE REPERTOIRE The recognition that the recourse to comparison consists of a strategy of argumentation12, implies that some theoretical premises are assumed.

12

Individually or institutionally considered. (Aanus, 2002)

15 (a) It is impossible to establish a method of comparison that is appropriate for application by the courts with the intention of correction13. The use of foreign sources is assumed as an interpretative guide, and not as the result of methodologically oriented investigation and comparison of the differences and similarities. (rc, 1997, p. 253). (b) The methodic plurality of the courts is an essential requirement for enabling it to carry out the due inquiry on the law applicable to the case (the possibility is removed here, of any exclusionary theory applicable to the adjudication) (Choudhry, 1999). (c) The non-national elements placed in dialogue in the decisions are argumentative topos which are linked with the other legal materials. Thus, they fulfill a strategic function that is predefined by the interpreter and respond to the anxieties of broadening the normative repertoire at the disposal of the courts in the processes of giving reasons. By emphasizing the instrumental aspect of the recourse to comparative law (to the detriment of the universalist claims), there is apparently an undermining of the willingness to carry out transjudicial dialogue. However, it is an apparent debility, since by conferring the nature of argumentative topos, it authorizes this element to act, concurrently, with the other normative sources. Its use is therefore admissible, both in the context of the decision and in its context of justification. The degree of internal coherence of the argument, and the weight attributed to it in the judicial discourse, are directly related to the way in which the non-national element is interpreted. for example, we can highlight: the search to identify a common origin of the institute between comparative legal experiences (genealogical approach), the search to identify equivalent functions, bearing in mind the existence of common problems to be resolved (functionalist approach), and the search for its own identity, based on the dialogue with other experiences (the expressionist approach), the latter being very close to the dialogic approach, particularly when the recourse to foreign experience seeks to distinguish itself from the national practice, in an attitude of opposition to the borrowing. The external context of the judicial discourse also provides important motives for the court to engage, to a greater or lesser degree, in a closer constitutional dialogue14. The deliberate decision, by the court, to dialogue with experiences elsewhere, is assumed as a discursive strategy (Annus, 2002), as a technique for supplying reasons" (Choudhry, 1999) or as a critical parameter of the internal system (Tushnet, 1999). 4.3
13

THE STRUCTURE OF JUDICIAL REASONING AND THE DEVELOPMENT OF BASES

Often, an exacerbated methodic concern in the legal discussion, particularly in the context of justification of the decision, hides the ideological options from the interpreter. 14 An example of this is the experience of Australia, Israel, South Africa and India.

16 FOR A TRANS-JUDICIAL DIALOGUE Traditionally, the argumentation logic of court decisions has been structured essentially on deductive arguments: Identifying the control of the law to the application of the case under analysis. This link appears still to be bound to the belief that the magistrate should judge in accordance with the law that is presented to him as an object (ready and complete) to be discovered through hermeneutic labor. In the process of (re)constructing the normative control that applies to the case, the courts resort, preferably, to the doctrine, using the references and judgments as arguments of authority and reinforcement of a pre-announced position. This characteristic means that until recently, the legal manuals have given very little importance to the analysis of court decisions. The effort to identify leading cases in certain normative groups is recent, and combines with what has been denominated jurisprudencialization of the law (in particular, constitutional law) (Rousseau, 1998). This is a recognition of the preeminent role attributed to the courts (Particularly the Constitutional Court) in the daily process of (re)structuring constitutional law (Alexy; Dreier, 1997). The constitutional court, as final guardian of the constitution, is the stage for strong demands for recognition of rights and the political disputes that arise, largely, from its role as arbiter between powers and as countermajoritarian difficulty in the protection of liberties. The preeminence of these courts is a result of the promulgation of fundamental decisions in an interpretative perspective of a principle-based nature, with attitudes that are presumably creative and interventionist. This clearly goes beyond the binding effect of its decisions15. This sudden change is so significant, that some authors refer to it as an "almost canonical" binding to case law, of the Constitutional Court (Schlink, 1994). In this cultural environment, the phenomenon of the circulation of legal models is as frequent, if not more so, as the practice of sending/receiving in the opposite tradition. However, in the context of justification of the legal decisions, the recourse to foreign practice is often deliberately hidden, as Legais (1997, p. 113) emphasizes, when analyzing the jurisprudence of the haute jurisdictions franaises. Or, more often, it is introduced to judicial practice by means of the specialized literature (Drobnig, 1997). Thus, traditionally the main vehicle for the transposition of constitutional models, in the process of adjudication, consists of the incorporation of doctrinal lessons (direct analysis of case law by the courts is constantly related to the partial approaches that should be avoided).

15

The idea of judicial decisions with binding effect is particularly recent in the constitutional experience of countries with a tradition of civil law, so much so that for a long time, jurisprudence denied the status of the formal status of positive law.

17 For these reasons, the typological analyses presented earlier cannot be transplanted into this reality. Therefore, many of the questions on the legitimacy of this resource and, and the methodological oppositions, provided they are kept in proportion, can be formulated within our tradition. This can be easily seen in the diagnosis offered by Drobnig, on the practice of the German constitutional Court. According to Drobnig, the court resorts to comparative law to fill gaps in German law, overcome a positive rule by creative development, and more recently has employed recourse to foreign law to control the constitutionality of constitutional norms, with the help of generally accepted constitutional standards or principles which were gained through comparative inquiry. (1997, p. 146-7). Now, if Saunders recognizes that the theoreticians still have a long way to go in order to fully understand this phenomenon within common law countries, in countries with a civil law tradition, this concern is practically uncharted territory. 5 CONCLUSIVE SUMMARY This article seeks to recognize that recourse to non-national experiences, in the process of constitutional adjudication, put into effect by the courts, is a legitimate strategy of argumentation which enables an increase in the normative repertoire available, furnishing the constitutional interpreter with tools, and the same time, argumentative topos which are both subversive" (Fletcher, 1995) - in that they provoke a redimensioning of possible routes adopted in the process of constitutional concretization, and "valorative (Lamego, 1989) in that they internalize the constitutional system and self-criticism of the confrontation, in an attitude of dialogue with concrete constitutional experiences from other socio-cultural contexts. This dialogue, therefore, leads to a continual process of openness and criticism and enables new textual levels to be added to the Constitution, re-specifying the idea of material constitution. According to Weinrib (2002, p. 3-4), where the new comparativism has been given place, comparative analysis is considered as internal to the activity of constitutional adjudication, or as supplying commentators with appropriate insights for the internal workings of specific constitutional regimes. This practice has resulted in various theoretical efforts to define methodologies which, ultimately, are capable of redimensioning the scope of constitutional interpretation and the traditional "theory of sources" in law. Facing this question requires deep reflection on the role exercised by the constitution, the legitimacy of constitutional jurisdiction (demarcation of the limits of the Judiciary Power) and the rationality of judicial decisions). It therefore opens a wide range of possibilities for investigation

18 which do not fit in with the classical concepts of sovereignty, State and constitution. Numerous questions and doubts emerge: Can the use of normative elements which are foreign to the national constitutional culture, by putting in doubt the driving force of the constitution as a fundamental political option (sovereignty) and self-projection of the cultural identity of its people, undermine the integrating function that is traditionally attributed the constitutions? What are the limits to this borrowing of foreign material, and if possible, what are the parameters to be established for the rational control of judicial decisions? This range of perspectives suggests something greater than mere academic interest in the differences and similarities between the constitutional systems. The new comparativism does not leave constitutional theory unscathed, but instigates processes and ideas that place in doubt key concepts and distinctions that constitute the constitutional right, to the point of developing the idea of the indispensability of comparative analysis, constitutional system itself. 6 CONCLUSIVE SUMMARY Ackerman, Bruce. The rise of world constitutionalism. Virginia Law Review. v. 83, n. 4, p. 771797, may 1997. Alexy, Robert; Dreier, Ralf. Precedent in the Federal Republic of Germany. In: MacCormick; Summers, Robert (eds.). Interpreting precedents: a comparative study. Aldershot; Brookfield: Ashgate Publishing co., 1997. Annus, Taavi. Comparative constitutional reasoning: the law and strategy of selecting the right arguments. Duke Journal of Comparative and International Law, v. 14, n.2, p. 301-350, 2004. Betlem, Gerrit; Nollkaemper, Andr. Giving effect to public international law and European community law before domestic courts. A comparative analysis of the practice of consistent interpretation European Journal of International Law. v. 14, n. 3, p. 569-589, 2003. Canado Trindade, Antonio Augusto. Tratado de direito internacional dos direitos humanos. Porto Alegre: SAFE, 1997. 3 v. Carbonell, Miguel (ed.). Neoconstitucionalismo(s). Madrid: Trotta, 2003. Choudhry, Sujit. Globalization in search of justification: toward a theory of comparative constitutional interpretation. Indiana Law Journal, v. 74, n.3, p. 819-948, Summer 1999. Damman, Jens. The Role of Comparative Law in Statutory and Constitutional Interpretation. St. Thomas Law Review, v. 14, n.3, p. 513-560, 2002. De Vergottini, Giuseppe. Derecho constitucional comparado. Mxico: UNAM, 2004. Di Ruffia, Paolo Biscaretti. Introduccin al derecho constitucional comparado. Mxico: Fondo de Cultura Econmica, 2000 Dorsen, N; Rosenfeld, M; Saj, A; Baer, S. Comparative constitutionalism: cases and materials. Thomson West, 2003. Drobnig, Ulrich; Van Erp, Sjef (eds.). The use of comparative law by courts. Kluwer Law International, 1997. for an adequate understating of the very

19 Fioravanti, Maurizio. Constitucin: de la antigedad a nuestros das. Madrid: Trotta, 2001. Fioravanti, Maurizio.Los derechos fundamentales: apuntes de historia de las constituciones. 2.ed. Madrid: Trotta, 1998 Fletcher, George P. Comparative law as a subversive discipline. The American Journal of comparative law. v. 46, n. 4, p.683-700, fall 1998 Fletcher, George P. Constitutional identity. In: Rosenfeld, Michel (ed). Constitutionalism, identity, difference, and legitimacy: theoretical perspectives. Durham; London: Duke University Press, 1994. p. 223-232. Frankenberg, Gnter. Critical comparisons: re-thinking comparative law. Harvard International Law Journal, v. 26, p. 411, 1985. Garca-Pelayo, Manuel. Derecho constitucional comparado. Madrid: Alianza Universidad, 1993. Glenn, Patrick. Persuasive Authority. McGill Law Journal, v. 32, p. 261-299, 1987. Grossfeld, Bernhard. Comparative Law as a comprehensive approach: a European tribute to professor Jack A. Hiller. Hberle, Peter. Elementos tericos de un modelo general de recepcin jurdica. In: Prez-Luo, A.E. (Org.) Derechos humanos y constitucionalismo ante el tercer milenio. Madrid: Marcial Pons, 1996. p. 151-185 Hberle, Peter. The constitutional state and its reform requirements. Ratio Juris, v. 3, n. 1, p. 77-94, mar. 2000. Helfer, Laurence; Slaughter, Anne-Marie. Toward a theory of effective supranational adjudication, The Yale Law Journal, v. 107, n. 2, p. 273-391, nov. 1997. Henkin, Louis. A new birth of constitutionalism: genetic influences and genetic defects. In: Rosenfeld, Michel (ed). Constitutionalism, identity, difference, and legitimacy: theoretical perspectives. Durham; London: Duke University Press, 1994. p. 39-56. Henkin, Louis; Rosenthal, Albert (eds.). Constitutionalism and rights: the influence of U.S. Constitution abroad. Columbia University Press, 1988 Jackson, Vicki C.. Narratives of federalism: of continuities and comparative constitutional experience. Duke Law Journal, v. 51, n. 1, p. 223-288, 2001. Jackson, Vicki, Tushnet, Mark. Comparative constitutional law. NY Foundation Press, 1999. Jacobsohn, Gary Jeffrey. The permeability of constitutional borders. Texas Law Review, v. 82, n. 7, p. 1763-1818, jun. 2004. Kokkot, Juliane. From reception and transplantation to convergence of constitutional models in the age of globalization. In: Starck, Christian (ed.). Constitutionalism, universalism and democracy: a comparative analysis. Baden-Badens: Nomos Verlagsgesellschaft, 1999. p. 71-134. Kommers, Donald P. Comparative constitutional law: its increasing relevance. In: Jackson, V; Tushnet, M (eds.). Defining the field of comparative constitutional law. Westport: Fraeger, 2002. p. 61-70. Koopmans, T. Comparative Law and the courts. International and Comparative Law Quarterly, v. 45, n. 3, p. 545-556, jul. 1996. Lamego, Jos. Hermenutica e jurisprudncia: anlise de uma recepo. Lisboa:Fragmentos, 1990 Legais, Raymond. France: Lutilisation du droit compar par les Tribunaux: rapport franais. In: Drobnig, U.; Van Erp, S. (eds.). The use of comparative law by courts. Kluwer Law International, 1997. p. 113-126.

20 Mateucci, Nicola. Organizacin del poder y libertad: historia del constitucionalismo moderno. Madrid: Trotta, 1998 McCrudden, Christopher. A common law of human rights?: transnational judicial conversations on constitutional rights. Oxford Journal of Legal Studies. v. 20, n. 4, p. 499-532, 2000. Nogueira Alcal, Humberto. Las constituciones latinoamericanas, los tratados internacionales y los derechos humanos. Anuario de derecho constitucional latinoamericano. Konrad Adenauer Stiftung; CIEDLA, 2000. p. 163-260. rc, Esin. Critical comparative law: considering paradoxes for legal systems in transition. Eletronic Journal of comparative law. v. 4.1, jun. 2000. (http://www.ejcl.org/41/abs41-1.html). Osiatynski, Wiktor. Paradoxes of constitutional borrowing. International Journal of Constitutional Law. v. 1, n. 2, p.244-268, 2003. Pfersmann, Otto. Le droit compare comme interpretation et comme thorie du droit. Revue internationale de droit compare. v. 53, n. 2, p. 275-288, 2001. Rosenkrantz, Carlos F Against borrowings and other nonauthoritative uses of foreign law. International Journal of Constitutional Law. v. 1, n.2, p. 269-295, apr. 2003. Rousseau, Dominique. Las transformaciones del Derecho constitucional en la V Republica. Los cadernos constitucionales de la ctedra Fadriqve Furi Ceriol. Valencia, n. 24, 5-17, 1998. Sanchez Agesta, Lus. Curso de derecho constitucional comparado. 5.ed. Madrid: Universidad de Madrid, 1974 Saunders, Cheryl. The use and misuse of comparative constitutional law. Indiana Journal of Global Legal Studies v. 13, n. 1, p. 37-76, winter 2006. Schaffer, Burkhard. Ontological commitment and the concept of legal system in comparative law. Congreso Internacional de Culturas y Sistemas Jurdicos Comparados. UNAM, 2004. <http://www.iij.derecho.ucr.ac.cr/docs_bd/pub% 20otras%20entidades/iij%20unam/mesa7/193s.pdf>. Schlink, Bernhard. German constitutional culture in transition. In: Rosenfeld, Michel (ed). Constitutionalism, identity, difference, and legitimacy: theoretical perspectives. Durham; London: Duke University Press, 1994. p. 197-222. Slaughter, Anne-Marie. A typology of transjudicial communication. University of Richmond Law Review. v. 29, p. 99-137, 1994. Tate, Neal; Vallinder, Torbjrn (eds.). The global expansion of judicial power. New York: NYU Press, 1995. Tushnet, Mark. The possibilities of comparative constitutional law. The Yale Law Journal. v. 108, n. 6, p. 1225-1309, abr 1999. Van Caenegen, R.C. An historical introduction to Wetern Constitutional Law. Cambridge: CUP, 1995. Watson, Alan. Aspects of recpetion of law. The American Journal of comparative Law. v. 44, n. 2, p. 335-351, 1996. Weinrib, Lorraine E. Constitutional conceptions and constitutional comparativism. In: Jackson, V; Tushnet, M (eds.). Defining the field of comparative constitutional law. Westport: Fraeger, 2002. p. 3-34. Yazbek, Otvio. Consideraes sobre a circulao e transferncia dos modelos jurdicos. In: Grau, E.R.; Guerra Filho, W.S.(Orgs.). Direito constitucional: estudos em homenagem a Paulo Bonavides. So Paulo: Malheiros, 2001. p. 540-556.