The Use and Misuse of Comparative Constitutional Law (The George P. Smith Lecture in International Law)

This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign case law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions: (1) as a generalization, other common law countries do not share the concern about the legitimacy of comparative precedents that manifests itself in the United States, and (2) as a consequence, other common law countries necessarily share with the United States an interest in the methodology of comparative constitutional law, in order to avoid its misuse. Throughout this article, a series of three decisions handed down by the High Court of Australia over the course of the 1990s is used as a case study to give the arguments context and greater substance.