Comparative Constitutional Law in the Courts: Reflections on the Originalists' Objections

18 Pages Posted: 6 Oct 2008  

Jo Eric Khushal Murkens

London School of Economics - Law Department

Date Written: September 15, 2008

Abstract

The controversy surrounding the judicial use of comparative constitutional law is not new. However, the debate has recently been reignited by a number of US Supreme Court justices who have spoken out on the use of non-US law in the Court. Scalia opposes, and Breyer favours, references to 'foreign law'. Their comments, made both within and outside of the Court, have led to a reaction by scholars. Arguably the debate is US-specific as it resembles the different views regarding constitutional interpretation, namely whether the Constitution's original, or rather its current, meaning is determinative. Yet the debate also raises broader issues of constitutional theory and politics: formal vs substantive legitimacy, globalisation of the courts, judicial sleight of hand, the cultural foundations of constitutional law, and the citation of non-primary sources of law in litigation. The present article explores these issues. It rejects radical approaches (either against or in favour of comparative constitutional law) and instead argues for a more modest process which both identifies the national specificity of law and grasps the mediating potential of law as a self-reflexive discourse.

Suggested Citation

Murkens, Jo Eric Khushal, Comparative Constitutional Law in the Courts: Reflections on the Originalists' Objections (September 15, 2008). LSE Legal Studies Working Paper No. 15/2008. Available at SSRN: https://ssrn.com/abstract=1268487 or http://dx.doi.org/10.2139/ssrn.1268487

Jo Eric Khushal Murkens (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

HOME PAGE: http://www.lse.ac.uk/collections/law/staff/jo-murkens.htm

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