Article by Brun-Otto Bryde
Markesinis and Fedtke have made a convincing argument for an increased role of comparative law in the work of judges based on a broad survey of judicial practice. I will restrict myself to adding a few modest observations from my own field of experience. After some words about the practice of the German Constitutional Court in Part I, I will stress the importance of international human rights law for the internationalization of constitutional law, and point out that we might underestimate the importance of foreign sources if we see their use only as inspirational.
Constitutional law is, in many respects, a special case. On the one hand, there might be less incentive to look abroad. Constitutional law is more closely connected with national identity than any other field of law. It is extremely unlikely that reference to foreign private law by the Supreme Court of the United States would have incensed American legislators to the point of advocating a legal interdiction of referring to foreign sources. The different private laws have a long common history. That foreign private or commercial law has an immediate impact on legal practice is evident in conflicts of law. The process of globalization has been accompanied by a move towards uniform private and commercial law and has transformed large parts of the law into transnational law. There is no similar obvious practical relevance of foreign constitutional law.
On the other hand, however, methodologically the doors for inspirations from abroad are even more widely open in constitutional adjudication than in private law. This is true both for the normative review standards and the subject matters of adjudication. The standards used by the constitutional judge are often open-ended, broad principles, rather than norms that allow strict construction. The discourse about these principles is not restricted to a nation-state, but is an international one. There can be no serious discussion of the concept of human dignity without reference to Kant, and thinking about equality will usually start with Aristotle. When a constitutional court exercises judicial review of legislation, it has to measure general policies against these principles. Again, such policies are often discussed internationally and, as a result, we can find relevant foreign experiences. Politicians adopting such legislation take a look at foreign inspirations and so can the constitutional judge.
About the Author
Brun-Otto Bryde. Judge of the German Constitutional Court and Professor for Public Law and Political Science, Justus Liebig-Universität Giessen. J.D. 1971, Hamburg.
Citation
80 Tul. L. Rev. 203 (2005)