The Morality of Foreign Law

Abstract

The article explains the normative foundations of the use of foreign law in constitutional reasoning. It pursues four claims. First, it argues that a normative explanation of the use of foreign law must elucidate the connection between foreign legal facts and moral values. Second, it distinguishes between the deductive model of the use of foreign law, which ascribes value to foreign legal facts directly, and the reflective model, which ascribes value to the outcomes of the reflective process facilitated by foreign legal facts. Third, it shows how the deductive model fails to explain the value of foreign law for constitutional judgment. Fourth, the article demonstrates how the reflective model can be justified with a reference to a set of virtues of good moral judgment, but argues that this model poses important limits to the use of foreign law.

Keywords: constitutional interpretation, constitutional adjudication, moral reading, foreign law, comparative constitutional law, values, metaethics