The Use and Misuse of Comparative Constitutional Law

Posted: 30 Oct 2007

See all articles by Cheryl Saunders

Cheryl Saunders

University of Melbourne - Law School


This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions. The first is that, as a generalization, other common law countries do not share the concern about the legitimacy of reference to comparative case law that manifests itself in the United States. The second is that, as a consequence, other common law countries necessarily share with the United States an interest in the methodology of comparative constitutional law, in order to avoid its misuse. Throughout the article, a series of three decisions handed down by the High Court of Australia over the course of the 1990s, dealing with the implied constitutional freedom of political communication, is used as a case study, to give the arguments context and greater substance.

Keywords: comparative, constitutional, USA, Australia, common law

Suggested Citation

Saunders, Cheryl Anne, The Use and Misuse of Comparative Constitutional Law. Indiana Journal of Global Legal Studies, Vol. 13, 2006, U of Melbourne Legal Studies Research Paper No. 274, Available at SSRN:

Cheryl Anne Saunders (Contact Author)

University of Melbourne - Law School ( email )

Centre for Comparative Constitutional Studies 723 Swanston Street (2nd Floor)
Parkville, Victoria 3010
61 3 8344 0753 (Phone)
61 3 8344 9374 (Fax)

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