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1.22.2011

Three Modalities of Comparison: Arizona's Exceptionalism?

For comparativists, South Africa is a gold mine. It offers comparative law scholars a rich repository of judgments that often develop in exquisite detail instructive comparisons between and among states.

Of course, this is not a matter of happenstance. South Africa's constitutional text actually commands courts to compare in some instances and also invites courts to compare in others. In this respect, South Africa may be said to exhibit two modalities of comparison.

We may call the first one mandatory comparison: when interpreting the national bill of rights, a South African court must consider international law. This form of comparison requires the domestic court to compare how the domestic practice compares to the international standard set by the larger global community.

The second modality of comparison is discretionary comparison: when interpreting the national bill of rights, a South African court may consider foreign law. This permissive form of comparison invites, but does not require, the domestic court to compare how the domestic practice compares to the standard set by sister nations.

There also exists a third modality of comparison: prohibited comparison. This form of comparison--which expressly denies courts the power to compare--is perhaps best exhibited by a constitutional amendment recently proposed in the state of Arizona. Here is the text of the amendment:

In making judicial decisions, [courts] shall uphold and adhere to the law as provided in the United States Constitution, the Constitution of this State, the United States Code, federal regulations adopted pursuant to the United States Code, established common law, the laws of this State and rules adopted pursuant to the laws of this State and, if necessary, the laws of another State of the United States provided the law of the other State does not include international law. The courts shall not look to the legal precepts of other nations or cultures. The courts shall not consider international law. [italics added]

It is difficult to imagine rejecting comparisons more emphatically than this proposed amendment to Arizona's Constitution. If this amendment passes, Arizona courts will be divested of the authority to consider either international or foreign law in reaching their judgments.

This third modality of the comparative enterprise--prohibited comparison--strikes me as unconventional and perhaps indeed unique in the western world. But I do not know for certain.

Do other national or subnational states expressly prohibit courts from relying on international or foreign law?

5 comments:

  1. Thank you for this very interesting post.

    Maybe we can also look at these three provisions from a different perspective.

    Indeed, it seems to me that the first two provisions establish more of a *procedural* requirement, mandating *consideration* of international and foreign law by the court in the adjudicatory process but leaving the court absolutely free whether to actually base the decision on international and foreign law or, at the opposite, on domestic law.

    Conversely, the third one is more directed towards the *substance* of the adjudicatory process, explicitly mandating that the decision is based only upon “law as provided in the United States Constitution, the Constitution of this State, the United States Code, federal regulations adopted pursuant to the United States Code, established common law, the laws of this State and rules adopted pursuant to the laws of this State and, if necessary, the laws of another State of the United States provided the law of the other State does not include international law.”

    The prohibition proposed in Arizona is part of a trend which is becoming increasingly popular in the United States: an analogous prohibition (Question 755, so-called “Save our State Amendment,” available at: https://www.sos.ok.gov/documents/questions/755.pdf) – forbidding use of international and Sharia law – was approved by 70% of the voting citizens in Oklahoma this past November 2, 2010 as a constitutional amendment. The amendment has been challenged as unconstitutional before a federal court on November 4 and a preliminary injunction has been issued to prevent the amendment to take effect (available at: http://s3.amazonaws.com/content.newsok.com/documents/n29opinion.pdf).

    The decision on its constitutionality is particularly awaited by those other U.S. States which are considering analogous constitutional amendments and prohibitions: South Carolina (at: http://www.scstatehouse.gov/sess118_2009-2010/bills/1387.htm), Louisiana (available at: http://www.legis.state.la.us/billdata/streamdocument.asp?did=722536) e Tennessee. In these latter two States, the prohibition has been drafted on the basis of a model law published by the American Public Policy Alliance association, within the project “American Laws for American Courts” (see here: http://publicpolicyalliance.org/?page_id=38).

    GG

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  2. Thank you for your reflections on this, Gianluca.

    I wonder, though, whether the distinction between procedure and substance may be overstated. By compelling South African courts to consider international law, for example, doesn't the South African Constitution indeed compel courts to follow the emergent norms of the international community? Likewise, even when the South African Constitution invites courts to consider foreign law, the effect may also be to compel courts to adopt the result most well aligned with the nations that South Africans see as sister states. In this way, substance may be concealed by procedure.

    Nonetheless, your distinction is fascinating, especially when viewed against the larger backdrop of what state constitutional amendments are trying to achieve: a constitutional culture completely sanitized of foreign influences.

    Still, I am not convinced this is possible because, under such a sanitized regime, judges could still borrow foreign/international concepts and apply foreign/international standards as long as they do not expressly link their legitimacy to their foreign/international origins.

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  3. Richard:

    Malawi adopted a version of South Africa's formulation. Art. 11(2) In interpreting the provisions of this Constitution a court of law shall...(c) where applicable, have regard to current norms of public international law and
    comparable foreign case law.

    Tom

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  4. Richard, thanks for highlighting this contrast. I think, however, that, the SACC's experience, demonstrates that the substance/procedure slippage is not inevitable. Roger Alford took SACC to task several years ago for failing to follow international law in Fourie, the gay marriage decision. http://lawofnations.blogspot.com/2005/12/international-law-in-south-africa-gay_02.html

    In that decision and several others, the Court has consistently summarized its comparative approach in a way that leaves plenty of room for domestic differentiation: "In dealing with comparative law, we must bear in mind that we are required to construe the South African Constitution, and not an international instrument or the constitution of some foreign country, and that this has to be done with due regard to our legal system, our history and circumstances, and the structure and language of our own Constitution. We can derive assistance from public international law and foreign case law, but we are in no way bound to follow it."

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