Comparativism in Constitutional Interpretation
New Zealand Law Review, pp. 45-68, 2009
21 Pages Posted: 28 Sep 2010 Last revised: 14 Oct 2010
Date Written: September 27, 2010
Like most judges charged with the interpretation of constitutions, the judges of the High Court of Australia commonly refer to, analyse, and are sometimes persuaded by the analyses of courts in other countries deciding similar questions. Recently in Roach v Electoral Commissioner (‘Roach’), the High Court considered a challenge to a 2006 amendment to the Commonwealth Electoral Act 1918 (Cth) that extended the class of disenfranchised prisoners from any person serving a sentence of three years or longer to any person ‘who is serving a sentence of imprisonment’. In the course of deciding that this law contravened the requirement of the Australian Constitution that members of Parliament be ‘directly chosen by the people’, the judges referred in the course of their reasons to decisions of the Supreme Court of Canada and the European Court of Human Rights.
This practice raises two questions that are at the centre of my lecture: whether judges interpreting constitutions should use foreign precedent in that task and, if so, how that precedent might be used.
To those who are not deeply engaged in constitutional law, this topic might seem technical and arcane, and thus a surprising choice for a public lecture. However, it raises fundamental questions. It raises questions about the nature the judicial obligation to show fidelity to the constitution itself. Is it proper for judges charged with interpreting a constitution which is expressed in writing and which has its own history, to be attentive to decisions mode elsewhere in different contexts and in relation to different constitutional texts?
It also raises related questions about a constitution’s role in shaping national identity. Should we understand a constitution as giving effect to a unique form of government, shaped by its own history and in response to local conditions? Or should we understand a constitution as implementing a form of government shared with other democracies? In other words, does a constitution reveal that the political community it governs is unique or that it is a member of an international community with shared values? Once these underlying questions are revealed, it should be less surprising that the question is actually hotly debated amongst scholars of constitutional law and judges charged with constitutional interpretation.
Keywords: comparativism, constitutional interpretation
JEL Classification: K00, K19, K39
Suggested Citation: Suggested Citation