Comparative Law in the Modalities of Constitutional Argument

38 N.C. Cent. L. Rev. 1 (2015)

31 Pages Posted: 18 Jun 2016

See all articles by Robert Black

Robert Black

New York University Department of Politics

Date Written: June 16, 2016

Abstract

In recent years there has been considerable controversy, perhaps best exemplified in a famous Conversation between Justices Scalia and Breyer, over whether it is appropriate for American courts to consider foreign law when deciding constitutional questions. This Article uses the system of modalities of constitutional argument described by Professor Philip Bobbitt to argue that there is no unitary answer to that question. Foreign law is of no relevance in making historical or doctrinal arguments, but is potentially of great relevance in making prudential ones, while its potential use in making textual, structural, or ethical arguments is considerably more complicated. Thus, a constitutional ideologue like Justice Scalia, who denies the legitimacy of certain modalities, may well find no place for foreign law in American courts. However, anyone who accepts Professor Bobbitt's view that all six modalities are legitimate should conclude that, if only for certain purposes, comparative law can play a legitimate role in constitutional decision-making.

Keywords: constitutional law, comparative law

Suggested Citation

Black, Robert, Comparative Law in the Modalities of Constitutional Argument (June 16, 2016). 38 N.C. Cent. L. Rev. 1 (2015), Available at SSRN: https://ssrn.com/abstract=2796628

Robert Black (Contact Author)

New York University Department of Politics ( email )

New York, NY
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
83
Abstract Views
537
rank
427,602
PlumX Metrics