Comparative Law in Australian Constitutional Jurisprudence

Abstract

Comparative constitutional law is a complex, multi-faceted and contested undertaking. The very possibility of meaningful comparison is sometimes doubted, and its legitimacy is often contested. Even among those who support its use, there is disagreement as to its rationale and method.

It is sometimes said that the Australian High Court is open to comparative constitutional law to an extent much greater than the United States Supreme Court. This is true, but it is so for particular reasons which do not necessarily reflect the degree to which there is openness, in principle, to comparative law in each country. While proportionately more comparative case-law can be found in judgments of the High Court compared to those of the Supreme Court, when the rationales justifying the use of comparative jurisprudence are examined, the differences in attitude are not so great. The history and context of the two constitutions is different, it is argued, and it is this which makes the difference so far as the use of comparative constitutional law is concerned.

The article begins by proposing a classification of approaches to comparative constitutional law. The article then describes the various grounds upon which comparative jurisprudence has been used by the courts and it is shown that, when these are compared, the different roles played comparative law in the United States and Australia is primarily due to the context in which the two constitutions came into being and have continued to operate.

Keywords: comparative law, constitutional law, comparative constitutional law, High Court of Australia, Supreme Court of the United States