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Mining for Gold: The Constitutional Court of South Africa's Experience with Comparative Constitutional Law


Ursula Bentele


Brooklyn Law School

July 22, 2008

Brooklyn Law School, Legal Studies Paper No. 113
Georgia Journal of International and Comparative Law, Forthcoming

Abstract:     
Despite a long history of referring to foreign law in its opinions, the Supreme Court's recent citations to such sources have caused heated controversy. Critics warn of threats to sovereignty as well as serious flaws in the way judges use outside authority. Largely missing from this debate is any probing examination of the actual practice of engaging with foreign authorities. This article attempts to fill the empirical void by analyzing closely one court that has used foreign law extensively: the Constitutional Court of South Africa.

The author conducted interviews with eight former and current justices who discussed both the value gained from the practice of engaging with foreign law and their ways of addressing the concerns expressed by American critics. Whether identifying universal norms, engaging in a dialogue to help clarify an issue, or gaining insight into comparable constitutional provisions, these justices see clear benefits from exploring the opinions of constitutional courts in other parts of the world. Yet they approach such outside sources with great care, fully aware of the potential hazards of transplanting foreign legal concepts and conscientiously avoiding selective citation only to favorable outside authorities. Detailed analysis is provided of several cases containing significant references to foreign law, along with commentary from the justices on how particular opinions were enriched by examination of other courts' treatment of the same issues. These findings bear on the current debate and, in a world where many other high courts engage in constitutional comparativism, suggest that the United States Supreme Court would do well by joining the conversation.

Number of Pages in PDF File: 35

Keywords: foreign law, jurisprudence, comparative, constitutional interpretation

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Date posted: July 23, 2008  

Suggested Citation

Bentele, Ursula, Mining for Gold: The Constitutional Court of South Africa's Experience with Comparative Constitutional Law (July 22, 2008). Brooklyn Law School, Legal Studies Paper No. 113; Georgia Journal of International and Comparative Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1169642

Contact Information

Ursula Bentele (Contact Author)
Brooklyn Law School ( email )
250 Joralemon Street
250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-7990 (Phone)
718-780-0375 (Fax)

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