The Law Library of Congress, Global Legal Research Center 

(202) 707-6462 (phone) • (866) 550-0442 (fax) • law@loc.gov • http://www.law.gov

The Impact of Foreign Law on 

Domestic Judgments

Argentina • Brazil • Canada • China • England and Wales • France 

Germany • India • Israel • Mexico • New Zealand 

Nicaragua • South Africa 

March 2010
This report is provided for reference purposes only. 

It does not constitute legal advice and does not represent the official 

opinion of the United States Government. The information provided 

reflects research undertaken as of the date of writing. 

It has not been updated.
Contents 

Comparative Summary ....................................................................................................................1 

Argentina..........................................................................................................................................4 

Brazil................................................................................................................................................8 

Canada............................................................................................................................................14 

China..............................................................................................................................................24 

England and Wales ........................................................................................................................28 

France.............................................................................................................................................33 

Germany.........................................................................................................................................39 

India ...............................................................................................................................................47 

Israel...............................................................................................................................................49 

Mexico ...........................................................................................................................................57 

New Zealand ..................................................................................................................................58 

Nicaragua .......................................................................................................................................69 

South Africa...................................................................................................................................72 
Comparative Summary

Peter Roudik 

Director of Legal Research

From time to time, American courts, which are relatively isolated from foreign influence, 

consider “civilized standards” and “views that have been expressed by . . . other nations” to 

support their decisions.1

 Even though the search for solutions to domestic problems beyond 

national borders is still a novelty for the US judiciary, increasing communications between 

international and domestic law and the ongoing globalization of the latter require lawyers around 

the world to study foreign judicial practice and consider it when resolving domestic 

legal disputes. 

This study reviews approaches of judges to foreign judicial experience in thirteen different 

countries belonging to common law, civil law, and mixed law legal systems, and analyzes to 

what degree and for what purpose judges cite laws of foreign countries and rulings of their 

colleagues abroad. Based on doctrinal analysis of national legislation, all reports explore 

specifics of foreign legal borrowings in the individual countries surveyed. Authors of the 

country surveys demonstrate how different each jurisdiction is in assessing the possibility of 

relying on foreign law resources and how the interpretation of foreign court rulings often 

depends on the constitutional principles accepted by the country or by one of its constituent 

components—for example, in Quebec, Canada. 

Countries surveyed in this report can be divided into four groups. 

The first group includes four civil law jurisdictions—Argentina, Brazil, France, and Germany—

where foreign laws and court rulings can be used as examples for judicial interpretation of a 

national law or as preparatory material for judges when they form their opinions in regard to a 

particular case. In these jurisdictions, foreign law is not binding and does not become a part of 

national legislation. The authors of these country surveys found that the role of foreign law in 

these nations is defined by existing constitutional doctrine and legal traditions. For example, in 

Argentina, where the Supreme Court relies on analysis prepared by the Foreign Research and 

Reference Institute, which was established within the Court for the purpose of providing research 

services on foreign court decisions, scholarly works, and legislation, foreign court rulings can be 

used for judicial argumentation if the Institute’s analysis confirms that “the foreign law to be 

used has a close similarity to the national law,” that the “facts in the foreign court decision 

coincide with the facts of the case before the national judge,” and that the “concept of justice in 

the foreign jurisdiction is similar to the one in its own court.”2

1

 Thompson v. Oklahoma, 487 U.S. 815, 830 & nn.31, 34 (1988) (recognizing that laws, judicial practice, and 

statistics of other countries can be used as guidelines in a court’s decision making). 

2

 Argentina Survey, infra at 5. 

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The Argentinean example is interesting because this country has a very strong judicial tradition. 

Because the Argentinean National Constitution followed the constitutional model of the United 

States, the influence of American precedents is strongest in the field of constitutional relations. 

In civil and commercial cases, the courts consult rulings of French, German, and Italian courts 

more often because these countries impacted the codification of Argentinean legislation. 

In our report, this group of jurisdictions representing the civil law family is joined by Israel, 

which has a mixed legal system based on civil and common law principles. Regardless of the 

fact that foreign law is widely cited by Israeli courts, and especially by the Supreme Court, the 

cited laws do not become binding and serve mostly to inspire judges and provide analogies.3

 

Foreign constitutions were frequently cited by Israeli judges for interpretational purposes before 

1995, when the Supreme Court President emphasized the merely comparative purpose of foreign 

law consideration, because each constitution, he stated, reflects the unique specifics of each 

individual nation.4

 

Common law or mixed jurisdictions—Canada, Great Britain, India, Israel, New Zealand, and 

South Africa—constitute a second group characterized by direct borrowings from foreign law. 

In these countries, foreign precedent is considered when national legislation is analyzed or a case 

is adjudicated. Countries of the British Commonwealth have the most developed practice of 

applying foreign judgments. Among them, Canada is known as a country where “foreign law 

has had a major impact on domestic judgments.”5

 Until 1982, the most cited foreign court 

rulings were those of British courts; however, after adoption of the Canadian Charter of Rights 

and Freedoms, interest moved toward American case law under the Bill of Rights, and American 

cases are now cited approximately twice as often as those of all Commonwealth countries 

combined.6 In India, where the influence of British and American law is significant, judges 

traditionally rely on foreign judgments when interpreting national laws and international treaties, 

especially in such areas as protection of privacy, human rights, and the environment. Court 

rulings of the British Commonwealth countries served as a basis for all major Indian Supreme 

Court decisions, which defined the interpretation of the Indian Constitution.7 The experience of 

New Zealand demonstrates that in times when legal relations are getting more and more 

complicated, judges are trying to find in foreign judgments answers to questions that have not yet 

been resolved by national legislation.8

 A steady decrease of British legal influence and the 

adoption of a growing number of other foreign and international law provisions in this country 

demonstrate strong ties between legal development and ongoing economic, political, social, and 

cultural changes,9

 and show that such factors as a common language, similarities in legal 

systems, and a joint historic background do not play such an important role as before. 

 

3

 Israel Survey, infra at 49. 

4 Id. at 50. 

5

 Canada Survey, infra at 14 (summary). 

6 Id. 

7

 India Survey, infra at 47. 

8

 New Zealand Survey, infra at 58. 

9 Id. at 61. 

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Mexico and Nicaragua, both of which follow the civil law tradition, constitute a third group 

among the nations surveyed in this report, both demonstrating a unique approach to the issue. In 

these countries, foreign law can be applied—in Nicaragua when national laws or all other formal 

sources of law, including customary law, are absent,10 and in Mexico when domestic law 

specifically provides for its application.11 However, no cases were located in either country 

where such application has occurred. 

The fourth way of applying foreign law is illustrated by those countries where judges are familiar 

with foreign methods of legal interpretation and apply their knowledge of foreign legal doctrines 

in their domestic practice, but do not mention foreign law directly. In this report, China is such a 

country. A nation that continues to recognize its legal system as socialist relies on its national 

legislation and not foreign court rulings. In 1986 and 2009, the Supreme People’s Court of 

China issued directives to lower courts on what should be cited in these courts’ rulings and how 

citations should be presented. Foreign laws and judicial decisions were absent from this list. 

However, foreign influence can be found in some rulings of Chinese judges. The China survey 

included in this report reviews two defamation cases adjudicated in Chinese courts in 2002 and 

2003 where foreign law played a significant role. Even though court documents did not mention 

foreign legal sources directly, the court actually recognized “concepts borrowed from the body of 

law surrounding the first amendment of the U.S. Constitution.”12 

These four approaches to comparative law by the courts of foreign countries illustrate the 

different ways in which foreign law can impact domestic judgments and the varied methods used 

by national courts in the application of foreign law and foreign court decisions. Because 

problems resolved by national courts are no longer unique and specific to those countries only 

and because domestic legislation in individual nations is not always enacted in time to reflect 

ongoing global changes in philosophy, politics, the economy, and social relations, the role of 

foreign law and its usage by courts around the globe is increasing dramatically. Reliance on 

foreign law does not mean directly borrowing or applying such law, however. As the discussion 

of the surveyed countries demonstrates, it is instead an open exchange of ideas aimed at 

preserving and enriching the corpus of national law. 

10 Nicaragua Survey, infra at 69. 

11 Mexico Survey, infra at 57. 

12 China Survey, infra at 24 (summary). 
Argentina 

Graciela Rodriguez-Ferrand 

Senior Foreign Law Specialist 

SUMMARY In Argentina, a foreign decision or law is sometimes used to support a court’s 

interpretation of a domestic law. The purpose of the citation is not only to reinforce a 

court’s interpretation of the law, but also to demonstrate how other countries deal with 

certain issues.1

 Argentine courts have cited foreign law in domestic cases, especially in 

connection with issues involving constitutional law, mainly because the National 

Constitution was inspired by the United States Constitution. The courts also cite 

European continental law with regard to civil and commercial matters. 

I. Introduction 

Argentina is a civil law country with a Romanist continental legal system. The judge renders a 

decision to declare and interpret the correct applicable law, without regard to the legal basis 

provided by the parties to the case, under the doctrine of jura novit curia.

2

 In this process, the 

judge is necessarily obliged to support his decisions and provide the basis for the conclusion he 

has arrived at.3

 Such basis needs to be found either in the law, court decisions, or other 

additional secondary sources of law, such as customs, scholarly opinions, and general principles 

of law. As such, the sentence should be substantiated and supported, and result from a logical 

derivation from the applicable law and not a dogmatic affirmation based on the judge’s will.4

It is not uncommon to observe citations of foreign court decisions by Argentine courts as an 

additional argument of the judge’s own decision. It is a way of strengthening the conviction in 

the selected interpretation offered by the domestic law.5 This encompasses a comparative 

analysis between the Argentine law and the foreign one to demonstrate that such a reception by 

the court is possible. This process should not be considered only as a simple migration of 

foreign law.6

The use of foreign law by Argentina’s courts has been quite frequent, especially in constitutional 

issues, because Argentina’s National Constitution dating from 1853 was inspired and modeled 

after the U.S. Constitution. Until the 1930s, the Supreme Court of Argentina applied U.S. 

precedent as one of the means of constitutional interpretation, especially in cases involving 

 

1

 PATRICIA MARCELA CASAL, RECEPCIÓN DEL DERECHO EXTRANJERO COMO ARGUMENTO: DERECHO COMPARADO 

37 (Editorial Belgrano, Buenos Aires, 1997). 

2 Id. at 41. 

3 Id. at 75. 

4 Id. at 76. 

5 Id. at 77. 

6 Id. at 77. 

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freedom of the press, freedom to engage in commercial activity, and property rights.7

 According 

to Professor Jonathan Miller, “the nineteenth century experience of Argentina with the U.S. 

Constitution shows that not only may rules from transplanted constitutional models take root, but 

that such rules may enjoy extra authority because of the prestige of the foreign model.”8

II. Reception of Foreign Law in Domestic Court Decisions 

Current trends show that high court decisions around the world are transposing national 

boundaries due to the following factors:9

1) Countries are increasingly more interconnected and interdependent. This is no longer limited 

to neighboring nations;10

2) In the current stage of human development most problems are not exclusive of one 

community or country, but common to the rest of the world as well;11

3) Scientific, philosophical, political and socioeconomic changes are not incorporated 

immediately in legislation. The correlation between social circumstances and legal norms is 

not always present. It is frequent to see the delay of the legislation with regard to social 

changes, either because of a legislator’s reticence or due to interest groups that hinder any 

change or because the process of legislative reform is slow and complicated.12 The lack of 

availability of an explicit legal solution is irrelevant for the judge who is required to solve the 

conflict and who cannot stop from deciding it.13 In this extreme situation, the Civil Code14

provides that the judge should use the general principles of law as a guide. 

A foreign court decision could be effectively used as a valid legal argument, if, after the 

comparative analysis process, it may be concluded that: 

1) The foreign law to be used has a close similarity to the national law, from the statutory point 

of view;15

2) The facts in the foreign court decision coincide with the facts of the case before the national 

judge;16 and 

 

7

 Jonathan M. Miller, Judicial Review and Constitutional Stability: A Sociology of the U.S. Model and its Collapse 

in Argentina, 21 HASTINGS INT’L & COMP. L. REV. 77, 79 (1997). 

8

 Jonathan M. Miller, The Authority of a Foreign Talisman: A Study of U.S. Constitutional Practice as Authority in 

Nineteenth Century Argentina and the Argentine Elite’s Leap of Faith, 46 AM. U. L. REV. 1483 (1997), available at 

http://www.wcl.american.edu/journal/lawrev/46/mille.cfm. 

9

 CASAL, supra note 1, at 77. 

10 Id. at 78. 

11 Id. 

12 CASAL, supra note 1, at 78-79. 

13 Id. at 79. 

14 CÓDIGO CIVIL arts. 15, 16 (Abeledo Perrot, Buenos Aires, 2009). 

15 CASAL, supra note 1, at 84. 

16 Id. 

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3) The concept of justice in the foreign jurisdiction is similar or equivalent to the one in its own 

court.17

Once these three conditions are met, foreign law may become a valid argument supporting the 

national court’s conclusion.18

For example, a foreign precedent may not be cited if the facts involving the case are not 

identical. In a 1992 decision of the National Civil and Commercial Federal Court of Appeals ,19

the Court concluded that a U.S. precedent on freedom of expression could not be used in a 

domestic case involving the expression of ideas, because the U.S. precedent was related to 

official and scientific secrets, the release of which may be forbidden under American law.20

A common legal tradition is a strong argument that Argentine courts have used to cite foreign 

court decisions. In constitutional law matters, U.S. precedents have had a strong influence. With 

regard to civil and commercial law, Argentine codes have been inspired by the European 

continental legal system; therefore, French, Italian, and German court decisions have been cited 

in these cases.21 

There are numerous decisions22 from the Supreme Court of Argentina citing foreign law as an 

argument. For example, in a 1994 case23, the Supreme Court decided that the principle of 

sovereign immunity of another nation was not absolute, as was understood until that time, but 

limited to public acts by the state and not to private activity, holding that no nation may be sued 

in Argentine courts if the conflict is related to activities of the foreign nation in the country 

undertaken in its role as sovereign (juri imperii), but may be sued if the actions were of a private 

character (jure gestionis).

The case involved a claim for unpaid social security and labor-related obligations to the 

employees of the Russian Embassy in Buenos Aires. The Supreme Court concluded that no 

constitutional, statutory, or conventional norm explicitly provided for an absolute immunity and, 

therefore, there was no legal impediment for the highest court to limit sovereign immunity to juri 

imperii and not to jure gestionis. To reinforce the court’s departure from the prior jurisprudence 

in the case, the court cited a U.S. Supreme Court decision of June 12, 1992,24 and a German 

 

17 Id. 

18 Id. 

19 CNCiv. Y Com. Federal, Sala II, 3/7/92, El Derecho, ED 28/9/92, Fallos N 44550. 

20 CASAL, supra note 1, at 96. 

21 Id. 90. 

22 Citation of foreign law may be found in the following cases: Corte Suprema de Justicia de la Nación [CSJN], Dec. 

7, 1934, “Avico, Oscar Agustín v. de la Pesa, Saúl G,” Fallos 172:21, Jurisprudencia Argentina [JA] 48-698; CSJN, 

July 13, 2004, “Cabrera, Gerónimo Rafael y otro c/ P.E.N. Ley 25.561 - dtos. 1570/01 y 214/02 s/ amparo sobre ley 

25.561,” Fallos 124. XL, both available at http://www.csjn.gov.ar/cfal/fallos/cfal3/toc_fallos.jsp. 

23 CSJN, “Manauta, Juan J. y otros c/ Embajada de la Federación Rusa,” Fallos 93485 of Dec. 22, 1994, La Ley 

(LL), Sept. 1, 1995. 

24 Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992), available at http://www.law.cornell.edu/ 

supct/html/91-763.ZO.html. 

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Constitutional Court decision of April 30, 1963, in a case against the Kingdom of Iran, which as 

of that date were already accepting the restricted sovereign immunity thesis.25

III. Supreme Court Comparative Law Research Division 

In 1992, the Comparative Law Research Division (Secretaría de Investigación de Derecho 

Comparado) was created within the Supreme Court Library to provide research services on 

foreign and comparative court decisions, scholarly works, and legislation to the Supreme 

Court.26 The creation of this division attests to the need and relevance that information on 

foreign law has for the Court. The mission of the newly-created division aims at providing not 

only reference, but also research in foreign and comparative law. To this end, the court renamed 

it the Instituto de Investigaciones y de Referencia Extranjera (Foreign Research and Reference 

Institute) in 2009. The Institute will provide translations, reference services, and publications of 

relevant foreign court decisions; acquire and catalog foreign legal periodicals; issue a semiannual 

publication; and make these materials available in a digital or online format as much as 

possible.27

IV. Conclusion 

Argentina’s domestic courts have a longstanding tradition of citing foreign law to reinforce the 

ruling position. This is basically due to the legal traditions adopted from the American 

Constitution, and the civil and commercial laws adopted from the Europeans. Judges from both 

the higher and lower courts recognize the advantages of foreign precedents, so much so that the 

Supreme Court created an office especially dedicated to collecting and researching foreign and 

comparative law to satisfy the needs of the courts. In the past this practice was based on 

common legal traditions. Today it is a normal response to an increasingly globalized world, in 

which very few problems are exclusive to one country, but most likely have already arisen and 

been solved in other parts of the world. 

25 CASAL, supra note 1, at 106. 

26 Acordada 51/2009 of Dec. 29, 2009, Reglamento del Instituto de Investigaciones y de Referencia Extranjera, 

available at http://www.csjn.gov.ar/docus/documentos/cons_tipo.jsp?tipo=AC. 

27 Id. art. 3. 
Brazil 

Eduardo Soares 

Senior Foreign Law Specialist 

SUMMARY The Brazilian legal system has its roots in Roman law. As a civil law country, the system 

is anchored by the enactment of codes and a large body of laws that are approved by the 

federal, state and municipal legislatures and sanctioned by their respective executive 

powers. 

The use of foreign law in domestic judgments is not binding, but the courts may refer to 

foreign laws to draw comparisons and conclusions. An example of this use is a benchmark 

decision issued by the Supreme Court in 2009 declaring that the Brazilian Press Law of 

1967 was not in conformity with the Constitution of 1988. On his vote in the case, Justice 

Gilmar Mendes, the current President of the Brazilian Federal Supreme Court, made use of 

foreign law to illustrate how freedom of expression and freedom of the press are treated 

abroad. This does not mean that Justice Mendes applied foreign law to decide a domestic 

controversy, only that he searched beyond Brazilian borders to enhance the discussion 

surrounding a national matter.

I. Introduction 

This report provides an example of the nonbinding use of foreign law in domestic court 

decisions—more specifically, the recent vote issued in a Federal Supreme Court (Supremo 

Tribunal Federal) decision of April 30, 2009, by Justice Gilmar Mendes, in a case involving an 

allegation of disobedience of a fundamental precept (Arguição de Descumprimento de Preceito 

Fundamental). The report briefly summarizes the Brazilian legal system, provides details 

regarding the case decided by the Supreme Court, and offers a few excerpts of Justice Mendes’s 

use of foreign law as a comparative element in his vote. 

II. Legal System 

Brazil is a civil law country and its legal system, which has its origin in Roman law, was 

implemented by the Portuguese during the colonization period and lasted until the promulgation 

of the first Civil Code in 1917.1

 As a civil law country, its legal system is based on codes and 

legislation enacted primarily by the federal legislature, as well as the states and municipalities. It 

is a federative republic formed by the insoluble union of the states, municipalities, and Federal 

District.2

 The Constitution of 1988 establishes the legislature, executive, and judiciary as the 

three branches that compose the Brazilian government.3

 

1

 LEGAL SYSTEMS OF THE WORLD: A POLITICAL, SOCIAL, AND CULTURAL ENCYCLOPEDIA 190 (Herbert M. Kritzer 

ed., 2002).

2

 CONSTITUIÇÃO DA REPÚBLICA FEDERATIVA DO BRASIL DE 1988 [C.F.] art. 1, available at the website of the 

Brazilian Presidency, http://www.planalto.gov.br/ccivil_03/Constituicao/Constitui%E7ao.htm. 

3 Id. art. 2. 

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The Federal Supreme Court is the highest court in Brazil and is entrusted with the duty of 

safeguarding the Constitution,4

 as well as functioning as a court of review. The Federal Supreme 

Court also has original jurisdiction to try and decide direct actions of unconstitutionality (Ação 

Direta de Inconstitucionalidade) of a federal or state law or normative act, or declaratory actions 

of constitutionality (Ação Declaratória de Constitucionalidade) of a federal law or normative 

act,5

 which somewhat resemble the issuance of advisory opinions—a situation not allowed in the 

Supreme Court of the United States. 

Brazil does not follow the doctrine of stare decisis,

6

 and the Supreme Court started issuing 

binding decisions (Súmulas Vinculantes) in special situations7

 only recently, after the 

amendment of the Brazilian Constitution 8 in 2004. 

 

III. Supreme Court Case 

On April 30, 2009, the Supreme Court issued a decision in a case brought to the Court by the 

political party PDT (Partido Democrático Trabalhista),9 arguing that Law No. 5,250 of February 

9, 1967 (Press Law), disobeyed a fundamental precept (Arguição de Descumprimento de 

Preceito Fundamental).10 PDT argued that Law No. 5,250 of 1967 was not in accordance with 

the Constitution of 1988 and asked the Supreme Court to acknowledge the legal nullity of Law 

No. 5,250, since it was incompatible with the democratic era. 

A. Justice Gilmar Mendes’s Vote 

In his vote, Justice Mendes made ample use of foreign law to analyze the meaning of freedom of 

the press in a democratic constitutional state. Justice Mendes began his analysis by citing Article 

12 of the Virginia Bill of Rights, which says “[t]hat the freedom of the press is one of the great 

bulwarks of liberty and can never be restrained but by despotic governments.”11

4 Id. art. 102. 

5 Id. art. 102(I)(a). 

6

 “The doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the 

same points arise again in litigation.” BLACK’S LAW DICTIONARY 1443 (8th ed. 2004). 

7

 C.F. art. 103-A. 

8

 On December 30, 2004, Congress amended the Constitution and established that the final decisions issued by an 

absolute majority of the members of the Federal Supreme Court would have a binding legal effect on the entire 

judiciary. The so-called Súmulas Vinculantes are now regulated by Law No. 11,417 of December 19, 2006, and 

enable the judiciary to judge in a definitive and final way thousands of cases dealing with the same issue. Emenda 

Constitucional No. 45, de 30 de Dezembro de 2004, available at http://www.planalto.gov.br/ccivil_03/ 

Constituicao/Emendas/Emc/emc45.htm; and Lei No. 11.417, de 19 de Dezembro de 2006, available at http://www. 

planalto.gov.br/ccivil_03/_Ato2004-2006/2006/Lei/L11417.htm. 

9

 S.T.F., ADPF-130, available at the website of the Federal Supreme Court, http://www.stf.jus.br/portal/ 

inteiroTeor/obterInteiroTeor.asp?numero=130&classe=ADPF. 

10 C.F. art. 102(§1). 

11 S.T.F., ADPF-130 at 208 (quoting Virginia Bill of Rights art. 12). 

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Justice Mendes observed that the discussion gravitates towards arguments for absolute freedom 

or complete censorship and that for the past centuries the press developed itself in an 

unstoppable fight towards absolute freedom.12 He continued by saying: 

[T]he great majority of constitutional texts, since the first declaration of rights, 

expressly proclaim the freedom of the press as a value almost absolute, not subject to 

restrictions from the government or even the Parliament, in the form of law.[13]

In this regard, Justice Mendes cited the previously mentioned Article 12 of the Virginia Bill of 

Rights and other state constitutional texts that originated during the emancipation process of the 

British Colonies in North America, namely, New Hampshire, Article XII; South Carolina, 

Article XLIII; Delaware, Article 1(5); Pennsylvania, Article XII; Maryland, Article XXXVIII; 

Georgia, Article IV(3); and Massachusetts, Article XVI, as examples that decisively influenced 

the First Amendment to the Constitution of the United States.14 

Justice Mendes observed that the first Brazilian Constitutions expressly foresaw the possibility of 

laws restricting the freedom of the press, and noted that Article 220 of the Constitution of 1988 

adopted a position very similar to the classical liberal model of ensuring freedom of the press, 

providing: 

Article 220 – The expression of thoughts, creation, speech, and information, 

through whatever form, process, or vehicle, shall not be subject to any restrictions, 

observing the provisions of this Constitution.[15]

Justice Mendes noted that “in the permanent debate between absolute freedom and restricted 

freedom, the jurisprudence of the Courts produced two ideas about the meaning or the content of 

freedom of the press.”16

In the United States, said Justice Mendes, “two traditions or two models of interpretation of the 

First Amendment were formed.”17 The first, a liberal concept, emphasizes the good operation of 

the “market of ideas” and traces back to the dissenting vote of Oliver Wendell Holmes in the 

famous Abrams case;18 and the second, a civic or republican concept, highlights the importance 

of the public and democratic debate that, besides the foundation launched by James Madison, 

was reflected in the opinion of Louis D. Brandeis in the case of Whitney v. California, 

culminating in the landmark decision in New York Times Co. v. Sullivan.19

 

12 Id. (translated by the author, E.S.). 

13 Id. at 209 (translated by the author, E.S.). 

14 Id. 

15 Id. at 210 (quoting C.F. art. 220 (translated by the author, E.S.)). 

16 Id. (translated by the author, E.S.). 

17 Id. 

18 Id. at 210-11 (citing Abrams v. United States, 250 U.S. 616 (1919)). 

19 Id. at 211 (citing Whitney v. California, 274 U.S. 357(1927); New York Times Co. v. Sullivan, 376 U.S. 254 

(1964)). 

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In Germany, Justice Mendes said, the Constitutional Federal Tribunal 

(Bundesverfassungsgericht), through a continuing line of jurisprudence with its origin in the 

famous Lüth case, built the concept of the double dimension, double character, or double face of 

fundamental rights, emphasizing on the one hand the subjective and individual aspect, and on the 

other hand the objective notion of the institutional character of freedom of expression and the 

press.20 Justice Mendes observed that the Lüth case “is a benchmark in the definition of the 

meaning of freedom of expression in a democracy” and that “the German tribunal recognized the 

double dimension, subjective (individual) and objective (institutional), of the fundamental 

rights.”21

Additional German cases were cited by Justice Mendes. He mentioned that the objective or 

institutional dimension of the fundamental right to freedom of the press was affirmed in the 

famous Spiegel case22 and that in other important cases the German tribunal reaffirmed the 

objective or institutional aspect of freedom of the press.23 

Throughout his vote, Justice Mendes continued to make extensive use of foreign law to help in 

the analysis of whether or not Law No. 5,250 of 1967 disobeyed a fundamental precept and 

should be declared void. For the sake of a comparative analysis, Justice Mendes further 

researched press law in several other countries. In this regard he wrote in his vote, “In Spain, the 

legal milestone in the area is found in Article 20 of the Spanish Constitution, which expressly 

prohibits previous censorship and widely recognizes freedom of expression, observing the 

limitations imposed by the right to honor, intimacy, one’s image, and the protection of childhood 

and youth.”24 Justice Mendes also observed that in Spain the right of reply can be found in Ley 

Orgánica No. 2/1984.25

Continuing with his survey of the press laws of other countries, he noted that in Portugal, 

Articles 37 and 38 of the Constitution of 1976 guaranteed the end of censorship and the 

independence of the organs of social communication. In addition, the Press Law of 1999, as 

modified by Law No. 18/2003, defines “press” and establishes its distinct classifications.26 The 

right of reply is also present in Articles 24, 25, 26 and 27 of Portugal’s Law No. 18/2003.27

Freedom of expression in the United Kingdom, Justice Mendes said, is found in Article 12 of the 

Human Rights Act of 1998,28 and the right of reply is found in the Defamation Act of 1996.29 In 

 

20 Id. at 211 (citing Lüth, BverfGE 7, 198, 1958). 

21 Id. at 218 (translated by the author, E.S.). 

22 Id. at 220 (citing Spiegel, BverfGE 20, 62, 1966). 

23 Id. at 222 (citing additional German cases). 

24 Id. at 236 (translated by the author, E.S.). 

25 Id. at 237. 

26 Id. at 238. 

27 Id. at 239. 

28 Id. at 242. 

29 Id. at 242-43. 

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France, “the Declaration of the Rights of Man and of the Citizen of 1789 establishes in its Article 

11 that the free communication of ideas and opinions is one of the most precious of the rights of 

man. Every citizen may, accordingly, speak, write, and print with freedom.”30 Furthermore, 

Justice Mendes indicated that the French law regarding freedom of the press is from 1881 (Loi 

du 29 juillet 1881 sur la liberté de la presse) and that freedom of expression is restricted in many 

situations: for the protection of family intimacy (art. 39); minors (art. 39 bis); and the image of 

persons who are victims of violence (art. 39 quinquies).31

Justice Mendes also researched the right of reply in Chile,32 Peru,33 Uruguay34 and Germany.35 

After analyzing it, he stated that it “constitutes a fundamental guarantee,”36 and that: 

The right of reply is present in the great majority of democratic countries that safeguard 

freedom of the press—derecho de replica (Spain); droit de réponse e droit de 

rectification (France); diritto di rettifica (Italy); Gegendarstellunsrecht and 

Entgegnungsrecht (Germany)—and it is assured to those persons or companies, public or 

private, that suffer an offense as the result of erroneous or untrue information (news) 

transmitted through the press. It is a guarantee of reply, rectification, correction, 

clarification, defense, or refutation of the erroneous or untrue information, proportional to 

the injury suffered, by the same means of communication.[37]

According to Justice Mendes, the right of reply, assured by Article 5(V) of the Brazilian 

Constitution of 1988, is foreseen by the American Convention on Human Rights in the 

following terms:38

Anyone injured by inaccurate or offensive statements or ideas disseminated to 

the public in general by a legally regulated medium of communication has the right to 

reply or to make a correction using the same communications outlet, under such 

conditions as the law may establish.[39]

Justice Mendes continued his analysis by writing that “the right of reply is constitutionally 

assured, but requires norms of organization and procedure to make its effective exercise 

 

30 Id. at 243 (translated by the author, E.S.). 

31 Id. 

32 Id. at 244-45. 

33 Id. at 245. 

34 Id. at 245-46. 

35 Id. at 246. 

36 Id. at 261. 

37 Id. at 261-62 (translated by the author, E.S.). 

38 Id. 

39 Id. (quoting American Convention on Human Rights art. 14(1), entered into force July 18, 1978, O.A.S. Treaty 

Series No. 36, 1144 U.N.T.S. 123). 

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The Impact of Foreign Law on Domestic Judgments: Brazil 

The Law Library of Congress 13

 

possible,” and that “there is no doubt that the adequate regulation of the right of reply is one of 

the central themes of the Press Law.”40 

In addition, Justice Mendes observed that: 

There are, in the Brazilian law, minimum norms of organization and procedure for the 

exercise of the right of reply. If these norms are declared as not received by the 

Constitution of 1988, certainly a scenario of extreme legal uncertainty will be established, 

which would affect all citizens and means of communication, and that minimum rules for 

the exercise of the right of reply are, undoubtedly, also a guarantee of legal security for 

the means of communication.[41]

After Justice Mendes’s thorough analysis, he concluded by saying that Law No. 5,250 of 1967 

should be declared void in part, and that Chapter IV, Articles 29 to 36, which regulate the right 

of reply, should be maintained.42

B. The Supreme Court’s Decision

After all the legal procedures were followed, all the interested parties (including government 

offices and officers) participated in the case, and all the Justices had voted, the Supreme Court 

declared in a 7-to-4 decision issued on April 30, 2009, that the whole Law No. 5,250 was not 

recognized by the Constitution of 1988. 

40 Id. at 262-63 (translated by the author, E.S.). 

41 Id. at 266-67 (translated by the author, E.S.). 

42 Id. at 268. 
Canada 

Stephen F. Clarke 

Senior Foreign Law Specialist 

SUMMARY Canada has the reputation of being a country in which foreign law has had a major impact 

on domestic judgments. It is certainly true that English cases were followed by the 

Supreme Court of Canada and the courts of the common law provinces until fairly 

recently. The adoption of the Canadian Charter of Rights and Freedoms in 1982 

represented a turning point in the direction of Canadian jurisprudence. Since that time, 

English precedents have been cited significantly less often. Immediately following the 

adoption of the Charter, there was an increase in interest in American caselaw under the 

Bill of Rights. However, a recent study has concluded that American jurisprudence is not 

a “major feature” of the decisions handed down by the Supreme Court of Canada since 

2000. Nevertheless, American cases are cited far more frequently in Canada than 

Canadian cases are in the United States. Cases from other Commonwealth countries are 

cited about half as often and cases from civil law countries are cited fairly infrequently.

I. The Popular Image 

The literature on the comparative impacts of foreign law on domestic judgments is replete with 

highly complimentary portrayals of Canadian courts’ purported openness to cross-cultural 

influences. In their study on Judicial Recourse to Foreign Law: A New Source for Inspiration,

Sir Basil Markesinis and Dr. Jörg Fedtke state that Canada is “of particular interest” because its 

mixed cultural background “prepared Canadians for an open and multi-cultural approach to law,” 

and that Canada’s courts are “more prone to a ‘dialogic’ model” rather than being “enforcers” of 

the internal constitutional order that was allegedly “especially strong ... during the Rehnquist 

era” in the United States.1 The authors also note that there has been “an important shift” in the 

focus of Canadian courts’ attention towards United States jurisprudence since the 1980s, but that 

this has not been at the cost of losing touch with English, Commonwealth, and civilian systems 

“above and beyond the obvious interest in French law.”2 

The analysts’ conclusion is that “Canadian universalism may thus demonstrate the confident 

state of an eclectic mind which does not see in transnational judicial dialogues a threat to 

national individuality or an impoverishment of the local legal culture but, on the contrary, a 

source of constant inspiration and reinforced judicial legitimacy.”3

 Markesinis and Fedtke note 

that they italicized the word “ ‘dialogue’ because in the reception of American law in Canada ... 

“we see no slavish adoption of its solutions nor, indeed, the opposite, that is, a closing of the eyes 

 

1

 SIR BASIL MARKESINIS & JÖRG FEDTKE, JUDICIAL RECOURSE TO FOREIGN LAW: A NEW SOURCE OF INSPIRATION?

83 (UCL Press 2006). 

2 Id. at 84. 

3 Id. 

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The Impact of Foreign Law on Domestic Judgments: Canada 

towards the large (and sometimes menacing) Southern neighbour, but an opportunity for a 

genuine dialogue in search for inspiration.”4

Although Markesinis and Fedtke have produced perhaps the most glowing portrayal of Canada 

standing at the crossroads of international judicial thinking, many of their sentiments have been 

expressed in other forums as well. In 2008, a Canadian court observer stated as follows: 

Canadian courts have displayed a great openness in adopting new principles from 

foreign sources. Canadian society has always championed itself as being tolerant and 

open to foreign ideas, and it would follow that its legal institutions would want to 

embrace this spirit as well. In an increasingly globalized world where local law often 

comes in contact with foreign and international law, courts have two options. One option 

is to close ranks and concentrate only on the national experience. The second option is to 

readily accept the transfer of legal ideas and the opportunities of transnational legal 

discourse. The Supreme Court of Canada appears to have adopted the latter option.[5]

One case that this author cited in support of his perception of Canadian courts’ openness to 

foreign jurisprudence concerned a provision in Canada’s major federal statute governing labor 

relations, which defined picketing to include leafleting. In fact, he stated that after reviewing 

foreign cases that distinguished between picketing and leafleting, the Supreme Court of Canada 

actually followed them in ruling that the extant Canadian restrictions on leafleting were a 

violation of the right of free expression guaranteed by the Canadian Charter of Rights and 

Freedoms.6 While it is true that the Supreme Court did consider the position in the United States 

in this case and characterized it, as well as American literature, as “helpful,” the Supreme Court 

does not appear to have looked to the law in any third countries and it was careful to note that 

freedom of expression is defined quite differently in Canada than it is in the United States.7 

Therefore, to characterize the Supreme Court’s decision as “following” foreign jurisprudence 

appears to overstate the influence of American cases and writings even in that one instance. 

Academics appear to not be the only ones who believe Canada’s courts “have learned from the 

rest of the world.”8 It has been reported that the justices of Canada’s Supreme Court challenged 

Chief Justice Rehnquist in 1999 by stating to him that they cited United States Supreme Court 

decisions, and asked why the United States Supreme Court did not reciprocate.9 The Chief 

Justice reportedly agreed that the United States Supreme Court’s more insular approach was 

becoming “less defensible.”10 Since then, other judges in the United States have recognized 

 

4 Id. at 84-85 (footnote omitted). 

5

 Randy Ai, The Use of Foreign Jurisprudence by the Supreme Court, THE COURT, Dec. 2008, 

http://www.thecourt.ca/2008/12/02/714 (Osgoode Hall Law School blog). 

6 Id. (citing United Food and Commercial Workers, Local 1518 (UFCW) v. Kmart Canada Ltd, [1999] 2 S.C.R. 

1083, available at http://scc.lexum.umontreal.ca/en/1999/1999scr2-1083/1999scr2-1083.html). 

7

 United Food and Commercial Workers, 2 S.C.R. at 1118-21. 

8

 Ai, supra note 5. 

9

 Vicki Jackson, Yes Please, I’d Love to Talk With You, LEGAL AFFAIRS, July/Aug. 2004, 

http://www.legalaffairs.org/issues/July-August-2004/feature_jackson_julaug04.msp. 

10 Id. 

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The Impact of Foreign Law on Domestic Judgments: Canada 

Canada’s contributions in the field of comparative jurisprudence. For example, in a 2009 speech 

at Ohio State University, Justice Ginsburg reportedly praised the Supreme Court of Canada for 

its willingness to consider foreign decisions in rendering its opinions in constitutional cases.11 

The subject of the extent to which the United States Supreme Court looks to foreign judgments 

in drafting its opinions is beyond the scope of this paper. However, the question of whether the 

Supreme Court of Canada is really as open to foreign influences as has been portrayed is one that 

was exhaustively studied in an article published in the prestigious Osgoode Hall Law Journal in 

2009. That study concludes that the portrayals of Canada’s Supreme Court as being at the 

forefront of the practice of comparative jurisprudence may be somewhat exaggerated and it 

therefore deserves substantial consideration. However, before undertaking this task, a brief 

outline of the development of the Canadian legal system and the historical trends in Canadian 

jurisprudence is provided, in order to provide a context for the study’s findings. 

II. Early Development of the Canadian Legal System 

Nine of Canada’s ten provinces are common law jurisdictions. The one exception is the civil law 

jurisdiction of Quebec. The question sometimes arises as to what authorizes the courts in the 

nine provinces to invoke the common law in rendering their decisions. Few reported Canadian 

cases in which the common law has been interpreted or applied have cited the legal basis for 

doing so. For the most part, awareness of the fact that the nine provinces outside Quebec are 

common law jurisdictions is simply assumed by lawyers presenting arguments and judges 

deciding cases. In other words, lawyers and judges seldom explain why they are resorting to the 

common law. However, legal authority for the bases of the common law legal system are to be 

found in the English common law itself, and the English statutes that were received or adopted at 

various dates. Determining exactly when the common law was introduced and which statutes 

were received in which provinces at what times is difficult, and has been the subject of extensive 

research and some debate.12 In the cases of Ontario, Manitoba, Saskatchewan, Alberta, British 

Columbia, and the territories, these questions are no longer of great significance because, 

regardless of exactly when reception first occurred, legislation was subsequently enacted that 

established dates upon which it is deemed to have occurred. The enactment of these laws 

clarifies matters to a significant extent. 

Today, statutes that were in force in England when English law was received by the common law 

provinces and territories are still in force in those jurisdictions if they have not been repealed or 

superseded by later legislation. These statutes still occasionally apply in individual cases, but not 

nearly as often as the common law. One reason why common law is of greater significance is 

that it was not frozen at the date of reception, whereas most early English statutes have been 

superseded by subsequent legislation. As the common law developed in England and Wales, 

Canadian courts continued to follow the pronouncements of the highest English courts. The 

position in England and Wales, Canada, and other Commonwealth jurisdictions has always been 

 

11 Adam Liptak, Ginsburg Shares Views on Influence of Foreign Law on Her Court, and Vice Versa, N.Y. TIMES, 

Apr. 11, 2009, available at http://www.nytimes.com/2009/04/12/us/12ginsburg.html. 

12 Peter Hogg, Constitutional Law of Canada 2-1 to 2-11 (5th ed. 2006); Kenneth Roberts-Wray, Commonwealth 

and Colonial Law 828-37 (1966). 

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The Impact of Foreign Law on Domestic Judgments: Canada 

that there is one body of common law that is generally the same throughout the Commonwealth, 

but that body of law allows for regional differences when recognition of those differences is 

necessary or dictated by circumstances.13 This is in contrast to the position in the United States 

where it has been accepted that the common law can differ from state to state regardless of the 

circumstances.14 

One reason for this difference is that in the United States, the Supreme Court generally does not 

have jurisdiction to reconcile different interpretations of the common law from different states.15 

In Canada, however, adherence to uniform English common law rules was virtually dictated for 

many years by the Judicial Committee of the Privy Council. This court, which has always met in 

London, was established for a variety of purposes, one of the most important being to hear final 

appeals in cases arising from all participating colonies. The Privy Council was not limited to 

hearing appeals in federal cases arising in such confederations as Canada or Australia. The Privy 

Council could review decisions as to the state of the common law within provinces or states, as 

well as constitutional matters. When former British colonies attained independence, the 

constitutions approved for them by the Parliament of the United Kingdom generally retained the 

Privy Council as their final court of appeal. Thus, for many years the Privy Council was 

effectively the high court for Commonwealth countries outside of the United Kingdom. The 

Privy Council has traditionally heard cases in panels composed of British law lords joined by a 

judge of a high court in a participating jurisdiction, and it has adhered closely to the decisions of 

what was the Judicial Committee House of Lords until it was restructured and renamed the 

Supreme Court of the United Kingdom in October of 2009. 

By adhering to English precedents, the Privy Council long served to unify the common law 

throughout the Commonwealth. However, all of the Dominions and most of the former colonies 

have now abolished final appeals to the Privy Council. Canada abolished Privy Council appeals 

in 194916 and the last Canadian appeal was disposed of in 1959. Today, the Supreme Court of 

Canada is the country’s final court of appeal. However, while they are not binding, British 

precedents, particularly decisions of the House of Lords, continue to be highly respected. In fact, 

in discussions about the state of the common law, English precedents are usually cited without 

attention being drawn to their origin in a foreign court. Discussions of American cases and most 

non-English Commonwealth cases, by contrast, are almost always prefaced with a special note of 

their origin. 

Finding the legal basis of the legal system in Quebec is not as difficult as it is in the case of the 

common law provinces. Quebec does not have unwritten common or customary law underlying 

its statutes. Instead, the basis of the legal system in Quebec is the Civil Code of Quebec.17 The 

 

13 Id. at 2-5. 

14 ERWIN CHEMERINSKY, FEDERAL JURISDICTION 337-38 (5th ed. 2007). 

15 Id. at 655-62. 

16 1949 S.C., ch. 37, § 3. 

17 1991 L.Q., ch. 64. 

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The Impact of Foreign Law on Domestic Judgments: Canada 

current Code was adopted by the National Assembly on December 18, 1991, and went into force 

on January 1, 1994.18

The history leading up to the adoption of the current Civil Code dates back to the sixteenth 

century. Although the territory that now comprises Quebec was explored and claimed by 

Jacques Cartier for France as early as 1534, colonization proceeded very slowly. The first 

settlements were commercial enterprises operated by companies in France, but by 1660, New 

France still had less than 2000 inhabitants. Three years later, Louis XIV annexed the colony 

from the company that had been given a commercial monopoly to exploit the fur trade in the area 

and recreated it as a royal domain. From that time until the conquest in 1759, the population of 

New France grew to be slightly over 75,000. 

The earliest law introduced in New France was based upon feudal principles. New France was 

divided into seigneuries. Colonists had to pay taxes and rental fees to the seigneurs.19 This legal 

system was eventually replaced by the Coutume of Paris by the Company of 100 Associates. 

The Coutume was confirmed by the Royal Council that later governed New France. In France 

itself, the Code Napoleon was adopted in 1804. However, by then, Quebec was completely 

separated from France and the Code Napoleon was not immediately adopted for use in Quebec 

by the English government. In fact, the Coutume of Paris remained the basis of civil law in 

Quebec until it was finally replaced in 1866 by the first Civil Code of Lower Canada. Even then, 

while the Civil Code brought the principles and provisions of the Code Napoleon to Quebec, 

many of these were modified through the inclusion of aspects of English law. 

In interpreting Quebec’s Civil Code, the courts of that province have never followed French 

jurisprudence to the extent that the courts in the common law provinces followed English 

jurisprudence. The Codes of Quebec and France were always different, there were no final 

appeals to Paris, and French judgments were not widely available. Thus, Quebec’s courts 

developed their own jurisprudence from an early date to a far greater extent than the common 

law provinces did. The current Civil Code is more of a domestic creation than a version of its 

French counterpart. 

III. Constitutional Developments 

Canada does not have a single constitutional document. In 1867, the United Kingdom united the 

four provinces of Ontario, Quebec, Nova Scotia, and New Brunswick as the Dominion of 

Canada through the enactment of the British North America Act.20 This statute divided 

legislative powers between Parliament and the provincial legislatures. The original British North 

America Act has since been renamed the “Constitution Act, 1867,” but it remains in force and its 

division of powers, though modified, has remained largely intact.21 On its face, this division 

would appear to give Parliament very broad authority to enact legislation covering virtually any 

 

18 For an overview of the Code in French, see MICHEL FILION, GUIDE DU CODE CIVIL DU QUEBEC (1998). 

19 ADRIAN POPVICI & MICHELINE PARIZEAU-POPOVICI, VOUS ET LA LOI 34 (1977). 

20 30 & 31 Vic. c. 3 (U.K.). 

21 Constitution Act, 1867, R.S.C. No. 5, §§ 91-92 (App. 1985). 

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The Impact of Foreign Law on Domestic Judgments: Canada 

matter it wishes to address due to the fact that it gives Parliament jurisdiction over 

interprovincial trade and commerce and residual powers over matters not assigned to the 

provinces. However, the courts have interpreted the provinces’ enumerated powers, particularly 

those over what is termed “property and civil rights,” broadly and have, consequently, ensured 

that Canada is, in practice, a more decentralized federation22 than the United States. Many fields 

that are governed by federal legislation in the United States are governed by provincial 

legislation in Canada. A few examples are labor law, securities regulation, and intraprovincial 

transportation. However, there is one major exception to this rule. The Constitution Act, 1867, 

gives Parliament exclusive jurisdiction to enact criminal laws for Canada.23 In exercising this 

power, Parliament has enacted a Criminal Code that applies throughout the country. The 

provinces do not have their own separate criminal codes for intraprovincial or minor crimes, but 

they can enforce laws otherwise within their jurisdiction through what are termed “quasicriminal laws.” Highway traffic laws are an example of quasi-criminal laws. Anti-terrorism 

legislation, on the other hand, is criminal law in the strict sense that falls almost entirely within 

the exclusive powers of Parliament. At the same time, the provinces do have prime 

responsibility for enforcing the criminal laws written by Parliament because charges brought 

under the Criminal Code are tried in provincial courts. 

The original Constitution of 1867 did not give Canada the power to amend its Constitution or 

give Canadians constitutional guarantees similar to those found in the United States in the Bill of 

Rights. In 1982, these two matters were addressed through the enactment of the Constitution 

Act, 1982.24 This document replaced the anachronistic procedure of formally asking the 

government of the United Kingdom to enact an amendment to change the Constitution with 

complex formulas for the Parliament of Canada to amend the Constitution with the consent of all 

or some of the provinces, depending on the nature of the proposed changes, and it 

simultaneously created the Canadian Charter of Rights and Freedoms (the Charter).25 The 

adoption of the Charter has dramatically altered constitutional law in Canada over the past 

twenty-four years. Whereas the study of this field was once focused almost entirely on the 

respective legislative powers of Parliament and the provincial legislatures, the subject of civil 

rights or what limits the Charter places on the powers of both Parliament and the provincial 

legislatures moved to the forefront. 

The Charter differs from the U.S. Bill of Rights in a number of respects. For example, the 

Charter is far more detailed. For this reason, as well as on account of a judicial trend that 

embodies more European influences than are encountered in American jurisprudence, the 

Charter has been interpreted to give Canadians guarantees that have not been found to exist in 

the United States. A clear example in this regard is protection from the death penalty. Canadian 

courts have interpreted the Charter to not only prohibit the imposition of the death penalty, but to 

also prohibit the extradition of persons to face the death penalty except in “extraordinary 

circumstances.”26 However, while the Charter is more detailed than the Bill of Rights, it is also 

 

22 Id. § 92(13). 

23 Id. § 91(27). 

24 R.S.C. No. 44 (App. 1985). 

25 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c. 11 (U.K.). 

26 United States v. Burns, [2001] 1 S.C.R. 283. 

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The Impact of Foreign Law on Domestic Judgments: Canada 

qualified in two significant respects. First, Charter rights are subject to “such reasonable limits 

prescribed by law as can be demonstrably justified in a free and democratic society.”27 This 

limitation gives the courts authority to uphold laws that they consider “reasonable” in a 

democratic society even if they would otherwise contravene the Charter. Secondly, the Charter 

contains a “notwithstanding” clause that generally gives Parliament and the provincial 

legislatures authority to declare that legislation they have enacted is to go into force 

“notwithstanding” the fact that it contravenes the Charter.28 While some legislators were afraid 

that the inclusion of this clause would give Canadian governments a convenient way to simply 

ignore Charter guarantees, Canadian governments have actually been so concerned that invoking 

the notwithstanding clause would create a public backlash that they have avoided using it almost 

entirely. In fact, the notwithstanding clause has not been invoked by Parliament on a single 

occasion and it has only been resorted to on the provincial level in a couple of instances. 

From the above it can be seen that Canada has had a legal history quite different from that of the 

United States. Until sixty years ago, its highest court was an essentially English court and the 

chief focus of its courts in constitutional cases involved the respective powers of Parliament and 

the provincial legislatures and much of its other work was in interpreting the common law in 

cases that would generally fall outside of the jurisdiction of the Supreme Court of the United 

States. Furthermore, it is not surprising that constitutional cases from the United States did not 

have much of an early impact in Canada because instead of involving questions of federal versus 

state powers, the main constitutional issues in the U.S. have involved the Bill of Rights for at 

least the past 100 years. Canada, on the other hand, did not adopt its equivalent—the Canadian 

Charter of Rights and Freedoms—until 1982. The question then becomes one of whether this 

and other developments have increased the overlap of issues faced by Canadian and nonCommonwealth courts in recent years. 

IV. The McCormick Study 

The Osgoode Hall Law Journal article previously referred to is entitled “American Citations and 

the McLachlin Court: An Empirical Study.”29 It was written by Peter McCormick, a professor of 

political science at the University of Lethbridge in Alberta, and its thesis is perhaps best 

summarized by his finding that “American authority is not a major feature of the case law of the 

McLachlin Court, and is somewhat less prominent than was the case for the preceding Chief 

Justiceships.”30 Professor McCormick notes that, by contrast, citation rates for American cases 

in Australia have been rising steadily for over forty years and are about six times higher than 

they are in Canada. 

While Professor McCormick’s focus is on the citation of American cases in Canada, he begins 

by reporting some statistics on the sources of all citations by the Supreme Court of Canada. His 

 

27 Part I of the Constitution Act, being Schedule B to the Act, 1982, c. 11, § 1 (U.K.). 

28 Id. § 33. 

29 Peter McCormick, American Citations and the McLachlin Court: An Empirical Study, 47 OSGOODE HALL L.J. 83 

(2009), available at http://ohlj.ca/english/documents/0347_1_McCormick_PSS_090607.pdf. 

30 Id. at 94. 

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The Impact of Foreign Law on Domestic Judgments: Canada 

data shows that almost 60% of the citations in a period after the abolition of appeals to the Privy 

Council in 1949 were to English cases and that less than 1% were to American cases. Citations 

to all other jurisdictions, both within and outside the Commonwealth, were approximately 1%.31 

Under the current Chief Justice, citations to English cases have fallen all the way to around 6% 

and citations to U.S. cases stand at around 3.5%. Citations to cases from all other jurisdictions 

are about 1.5%. The highest rate of citations to U.S. cases was 7.2% under former Chief Justice 

Dickson. During that same period, citations to cases from all other jurisdictions also reached 

their high point of 2%.32 This is largely attributed to the adoption of the Canadian Charter of 

Rights and Freedoms in 1982. In the first few years, the absence of relevant case law from 

Canada naturally encouraged the courts to look at some foreign precedents respecting such rights 

as freedom of speech and freedom of association. However, foreign precedents came to be cited 

less as Canadian jurisprudence under the Charter grew at a far more rapid rate than was widely 

foreseen in 1982. Professor McCormick describes this development as the process of 

“constitutional routinization [setting] in.”33

Professor McCormick has broken American citations down and reported that about half of the 

citations during the current period of interest were to Supreme Court decisions. Perhaps 

somewhat surprisingly, nearly 30% were to U.S. state courts. This number reflects the fact that 

matters that fall outside of the jurisdiction of the United States Supreme Court can be considered 

by the Supreme Court of Canada. One example previously mentioned in this regard is common 

law that does not involve a federal question. 

One interesting statistic is that the median year for decision of United States Supreme Court 

cases that were cited by the Supreme Court of Canada between 2000 and 2008 was 1973. The 

average state case cited was about twenty years old. This suggests that the Supreme Court of 

Canada has been more interested in reviewing established American cases than in tracking recent 

rulings. 

As has been mentioned, Professor McCormick’s thesis is that foreign authorities are not a major 

feature of the current case law of the United States. This thesis is supported by such a 

comprehensive analysis of the data that it is easy to overlook one portion of his paper, in which 

he does acknowledge that the Supreme Court of Canada’s use of foreign law may still be fairly 

impressive in a comparative context. An analysis of the reserved decisions issued by the 

Supreme Court of Canada since 2000 shows that “[o]ne in every five ... uses American citations, 

and two-thirds of those (or one in seven) involve the use of one or more citations to the [United 

States Supreme Court].”34 Professor McCormick goes on to state: 

The use of federal court citations is somewhat more focused, occurring in only 

fifty-one cases (or one in eleven), and state court citations are found in only thirty-three 

cases (or one in seventeen). [Nevertheless], “one case in five” is a solid increase over the 

“one case in ten” identified by [Ian] Bushnell for the pre-Charter period, and it contrasts 

 

31 Id. at 92. 

32 Id. 

33 Id. at 93. 

34 Id. 

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The Impact of Foreign Law on Domestic Judgments: Canada 

dramatically with the [United States Supreme Court’s] citation of foreign authority in 

about one case in every two hundred.[35]

 

The pointing out of this dramatic difference serves to balance Professor McCormick’s analysis 

most effectively. 

In his article, Professor McCormick looks at a number of assumptions about the citation of 

foreign judgments in Canadian judgments. One of these is that American cases are most likely 

to be cited by judges with legal training in the United States and least likely to be cited by judges 

with legal training in England. Today there are no judges on the Supreme Court of Canada who 

received law degrees in the United States. However, under Chief Justice Lamer, current Chief 

Justice McLachlin’s predecessor, only one of the six justices who cited American cases most 

frequently had received an American law degree. Furthermore, since 2000, the two justices who 

have cited American cases most frequently both received law degrees from Cambridge.36 Thus, 

there does not appear to exist a strong correlation between a judge’s foreign legal training, or 

lack thereof, and his or her openness to foreign law of any one or any number of countries. 

Another assumption that Professor McCormick has addressed at some length is of a more 

political character. Some writings suggest that foreign law is most likely to be used by judges 

who might be described as “activists” and that the foreign judges they cite are most likely to fall 

into this same category. The statistics show that of the U.S. Supreme Court cases cited by the 

Supreme Court of Canada since 2000, about two-thirds were issued by the Burger, Rehnquist, 

and Warren courts, which ranked in that order in the number of citations. Fourth on the list was 

the Fuller court, which lasted from 1888-1910. This led Professor McCormick to consider 

whether, rather than courts of a particular era, Canadian judges were most likely to cite 

individual judges more on the basis of their reputation. He approached this by noting which U.S. 

Supreme Court Justices had been most often cited by the Supreme Court of Canada and found 

that Justices Rehnquist, White, Brennan, Stewart, and Stevens were all tied at fourteen citations 

each. Behind this group in descending order with a high of thirteen and a low of six were 

Justices Burger, Blackmun, O’Connor, Scalia, Gray, Warren, Kennedy, and Black. Professor 

McCormick compared this list with a 1993 survey of judicial reputations conducted by Mersky 

and Blaustein37 and found that only three of these justices—Brennan, Warren, and Black—were 

ranked in the top ten by sixty-five law school deans in the United States. By contrast, former 

Chief Justice Burger, who only ranked ninety-first in the United States survey, was just one 

citation short of being tied for the most frequently cited American justice by the Supreme Court 

of Canada. 

The statistics given above do not show a clear pattern with respect to either ideology or 

reputation. 

 

35 Id. at 93-94 (quoting Ian Bushnell, The Use of American Cases, 35 U. NEW BRUNSWICK L.J. 157, 164-65 (1986)). 

For the U.S. statistics, Professor McCormick cites David Zaring, The Use of Foreign Decisions by Federal Courts: 

An Empirical Analysis, 3 EMPIRICAL LEGAL STUD. 297 (2006). 

36 McCormick, supra note 29, at 97-98. 

37 Id. at 103 (quoting William G. Ross, The Ratings Game: Factors that Influence Judicial Reputation, 79 MARQ. L.

REV. 401, 445-52 (1996)). 

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The Impact of Foreign Law on Domestic Judgments: Canada 

The Law Library of Congress 23

V. Conclusion 

Canadian courts enjoy the reputation of being comparatively open to foreign law in rendering 

their decisions. However, aside from the judgments of the highest courts in England and Wales, 

which were routinely followed until the 1970s and are still cited more than twice as often as 

judgments from any other country, foreign law does not appear to have ever played a major role 

in the development of Canadian jurisprudence. The adoption of the Charter of Rights and 

Freedoms in 1982 did increase interest in American cases under the Bill of Rights for several 

years, but Canadian jurisprudence has grown rapidly since that time. The Canadian Charter and 

the American Bill of Rights have many similarities, but major differences between the two 

ensure that the jurisprudence of the two countries will continue to develop quite independently. 

Nevertheless, when all cases are considered, statistics show that the Supreme Court of Canada 

has cited American case law almost forty times as often as the Supreme Court of the United 

States has cited Canadian case law. Statistics alone may not tell the whole story of the influence 

of foreign law on Canadian judgments, but they do offer substantiation that Canadian judges 

have consistently shown an interest in American law even if English law continues to be more 

influential. 
China 

Laney Zhang 

Foreign Law Specialist 

SUMMARY The legal system of China is primarily based upon the civil law model, and as a result the 

primary source of law is statutory rather than case law. While the courts rarely cite to case 

law or foreign law directly in domestic judgments, examples of the impact of foreign law 

in Chinese judges’ adjudication of domestic cases do exist. This report discusses two 

Chinese defamation cases, in which the “public person” standard played an important role 

in the judgments. This standard, as referred to by Chinese lawyers, is a concept borrowed 

from the body of law surrounding the First Amendment of the United States Constitution 

concerning the protection of freedom of the press. 

I. Introduction 

The legal system of the People’s Republic of China (China or PRC) is proclaimed by the 

Constitution as a “socialist legal system.”1

 The legal system primarily follows the civil law 

tradition, and the primary source of law is statutory rather than case law. 

As early as 1986, the Supreme People’s Court of China (SPC) circulated a reply providing 

direction to the lower people’s courts, which was to be followed when citing sources of law in 

court decisions.2 The reply arguably applied to civil and commercial cases only. Effective 

November 4, 2009, the SPC formally enacted The Provisions on Citation to Regulatory Legal 

Documents Including Laws and Regulations in Court Decisions (hereafter, SPC Provisions), in 

which the sources of law that are allowed to be cited in court decisions are provided.3

 

According to the SPC Provisions, the following sources of law may be cited in court opinions: 

(1) Laws and Legal Interpretations; 

(2) Administrative Regulations; 

 

1 See Article 5 of the Constitution of China, which provides: “The state upholds the uniformity and dignity of the 

socialist legal system.” XIAN FA art. 5 (1982, amended 2004), FA GUI HUI BIAN 4, 8 (2004). For the purpose of this 

report, application of foreign law in foreign-related cases is not discussed. 

2

 Zuigao Renmin Fayuan Guanyu Renmin Fayuan Zhizuo Falu Wenshu Ruhe Yinyong Falu Guifanxing Wenjian de 

Pifu [The SPC Reply on How People’s Courts Should Cite Regulatory Legal Documents in Making Court 

Documents], (Oct. 28, 1986). The text of the 1986 Reply in the original Chinese language is available online, at

http://www.law-lib.com/Law/law_view.asp?id=3936 (last visited Mar. 17, 2010). 

3

 Fa Shi [2009] No. 14 (July 13, 2009). The text in the Chinese original language is available on the SPC website, at 

http://www.court.gov.cn/qwfb/sfjs/201002/t20100210_1065.htm (last visited Mar. 17, 2010). 

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The Impact of Foreign Law on Domestic Judgments: China 

(3) Local Regulations, Autonomous Regulations, and Separate Regulations; and, 

(4) Judicial Interpretations.4

 

In addition to the sources listed above, the court may also (in administrative lawsuits only) cite 

interpretations of administrative regulations and administrative rules made by the State Council, 

and departments and agencies authorized by the State Council.5 Other regulatory documents, 

according to the SPC, may serve as the basis of argument, but may not be directly cited.6 

Thus, it appears that neither case law nor foreign law is allowed to be cited in domestic 

judgments according to the SPC Provisions, although in practice, when encountering new or 

difficult legal questions, lower court judges often consult with higher courts for instruction. 

Scholars have also found that Chinese judges are increasingly looking to other courts to see how 

they have handled similar issues.7

 Examples of the impact of foreign law have also been seen 

(although rarely and implicitly) in the adjudication of domestic cases by Chinese judges. 

II. ‘Public Person’ Debates in Chinese Defamation Cases 

A. Fan Zhiyi Case 

In his article Innovation Through Intimidation: An Empirical Account of Defamation Litigation 

in China, Professor Benjamin Liebman of Columbia Law School introduced a Chinese 

defamation case where the concept of “public person” was actually discussed in the court 

decision. The case was adjudicated by a district court in Shanghai in 2002. The article reported: 

Chinese soccer star Fan Zhiyi sued the Shanghai-based Wenhui Xinmin United 

Publishing group after its Oriental Sports Daily reported on rumors stating that Fan had 

gambled on games. The paper contended that its article, which was one of a series 

reporting on the alleged scandal, had been intended to refute rumors that were widely 

circulating at the time and to clear Fan of any wrongdoing. In rejecting Fan’s claim, the 

court noted that Fan “naturally was a public person” and that the defendant had “the 

responsibility to carry out its right to public opinion supervision” and report on the 

rumors. The court added that the paper should be protected because it was acting in the 

public interest and satisfying the public’s “right to know” regarding a public person. As a 

result, the plaintiff’s reputation “was not just an ordinary matter of one person’s affairs, 

but rather was a matter of public interest” and thus “certainly” could be a subject of news 

reporting.[8]

 

 

4 Id. art. 2. For definitions of each of the regulatory documents, see Legislation Law of the People’s Republic of 

China (adopted by the National People’s Congress on Mar. 15, 2000), in THE LAWS OF THE PEOPLE’S REPUBLIC OF 

CHINA 5-27 (2000). 

5 Id. art. 5. 

6 Id. art. 6. 

7 See, e.g., Benjamin L. Liebman & Timothy Wu, Chinese Network Justice, 8 CHI. J. INT’L L. 257 (2007). 

8

 Benjamin L. Liebman, Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China, 

47 HARV. INT’L L.J. 33, 104 (2006). The text of the court’s decision in Fan is available online in the original 

Chinese language, at http://www.nwcliniclaw.cn/news /news/35/2005714110248.htm (last visited Mar. 16, 2010). 

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The Impact of Foreign Law on Domestic Judgments: China 

After the decision was published, scholars within and outside of China enthusiastically 

commended it, particularly the fact that the court specifically included the concept of “public 

person” in the decision. The current Chinese defamation law framework, as pointed out by 

Professor Liebman, does not provide a basis for distinguishing between “public persons” and 

others.9 In their comments on the decision, Chinese scholars have generally referred to the 

concept of “public person” as a legal concept evolved under the First Amendment law of the 

United States.10 Scholars have advocated that China’s highest court, the Supreme People’s 

Court, include this decision in its guidelines provided to lower courts in China, thereby making it 

a judicial precedent binding on similar cases in the future. “If so, this case will become a 

milestone in the judicial history of Chinese media,” according to Professor Xiao Han of the 

China University of Political Law.11 

B. Yu Qiuyu Case 

The Fan case was just the beginning of the debates on the concept of “public person” in Chinese 

courts. In another defamation case brought to the court in Beijing by the famous writer Yu 

Qiuyu, the defendant’s attorney asked the court to accept the “public person” concept as it 

appeared in the Fan case. In his argument, the attorney specifically cited the defamation law of 

the United States, in particular the case of New York Times Co. v. Sullivan and the line of cases 

which followed, in which the “actual malice” standard was established.12 

The Beijing court refused to cite to the Fan case, however, stating that China is a civil law 

country and thus citations to case precedent are “not suitable.” The court did, nevertheless, find 

in favor of the defendant.13 In his article, Professor Liebman referred to comments made by 

observers, who argued that despite the court’s statements to the contrary, the “public person” 

concept and standard played an important role in the outcome of the case.14 

Professor Liebman opines that in these two defamation lawsuits and similar cases, Chinese 

courts have directly or indirectly suggested that famous persons should withstand a higher degree 

of scrutiny than ordinary persons, despite the absence of any distinction between ordinary 

persons and “public persons” in the defamation law of China. These cases, referred to by 

Professor Liebman as one of the Chinese court’s “judicial innovations,” “demonstrate the court’s 

willingness to contemplate expanded protection for the media even absent explicit guidance to 

 

9

 Liebman, supra note 8, at 105-06. 

10 See, e.g., Xiao Han, Gongzhong Renwu Denglu Panjueshu Ji Peishentuan Zhidu de Mengya [Public Person 

Boarded Court Decision, and the Jury System Germinates], 3 QINGHUA FAXUE 345 (2003) (in Chinese). In this 

article, Professor Xiao introduced a series of U.S. defamation cases in discussing the evolution of the concept of 

“public person” in U.S. defamation law. 

11 Id. at 346. 

12 Defense attorney’s statement to the court in the case of Yu Qiuyu (citing New York Times Co. v. Sullivan, 376 

U.S. 254 (1964)), available at http://www.huayilawyers.com/cn/ysdl.htm (in Chinese) (last visited Mar. 17, 2010). 

13 Liebman, supra note 8, at 105. 

14 Id. 

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The Impact of Foreign Law on Domestic Judgments: China 

The Law Library of Congress 27

 

such effect from either the National People’s Congress or the SPC.”15 Some Chinese judges, he 

claims, have explicitly decided cases by reference to defamation law in other countries.16 

III. Conclusion 

As a general rule, Chinese judges rely on statutory law in writing their decisions. In domestic 

judgments, it appears that they are not allowed to cite to foreign law or even to domestic case 

law. Nevertheless, as shown in the defamation cases discussed in this report, foreign law, in 

particular United States defamation law, has played an important role in a few domestic 

judgments of Chinese courts. 

15 Id. at 106. 

16 Id. 
England and Wales 

Clare Feikert-Ahalt 

Senior Foreign Law Specialist 

SUMMARY The use of comparative law in England is neither unfamiliar nor insignificant. Foreign 

cases are commonly used in the domestic judgments of courts in England and Wales. The 

use of these foreign cases is regulated in the lower courts, as certain criteria must be met 

before they can be utilized. The House of Lords commonly referred to foreign law, 

writings and cases in its judgments. 

“The discipline of comparative law does not aim at a poll of the 

solutions adopted in different countries. It has the different and 

inestimable value of sharpening our focus on the weight of competing 

considerations. And it reminds us that the law is part of the world of 

competing ideas markedly influenced by cultural differences.” 

–Lord Steyn, in McFarlane et al. v. Tayside 

Health Board, [2000] 2 AC 59.

I. Introduction 

This report will look at the use of comparative law by the judges in the House of Lords, which 

until late 2009 was the highest court in the land in the United Kingdom. It has since been 

reconstituted as the Supreme Court, but because the Supreme Court has produced few judgments 

to date, the report focuses on judgments of the House of Lords, with a brief overview of the 

regulation of the use of comparative law in the lower courts. 

II. Foreign Judgments in the House of Lords 

The use of comparative law in England is neither unfamiliar nor insignificant. The legal system 

of the country itself has been described as straddling two worlds: “[i]t has one foot in the ius 

commune novum with the legal systems of Continental Europe and the other in the ‘unity of 

common law’ with the legal systems in the Commonwealth and the USA,” as well as having a 

mixed jurisdiction within the United Kingdom with Scotland.1

Foreign judgments and foreign laws have been used by the Law Lords in the House of Lords as a 

comparative aid to the interpretation of English law with increasing regularity, both in a 

supplementary manner as well as substantively. It has been noted that the Commonwealth’s past 

has meant that the House of Lords is more accustomed and open to the use of comparative law 

than other jurisdictions.2

 

 

1

 Esin Orucu, Looking at Convergence Through the Eyes of a Comparative Lawyer, E.J.C.L., vol. 92, July 2, 2005, 

http://www.ejcl.org/92/art92-1.html. 

2

 Walter van Gerven, The Open Method of Convergence, JURIDICA INTERNATIONAL, vol. XIV, 2008, 

http://www.juridicainternational.eu/the-open-method-of-convergence. 

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The Impact of Foreign Law on Domestic Judgments: England and Wales

The incorporation of the European Convention on Human Rights into the national law of the 

United Kingdom by the Human Rights Act 1998 placed the UK in a different legal climate. The 

directly enforceable rights provided for in the Human Rights Act apply not only to the UK, but 

also to a number of other countries, as well as having certain parallels with the Constitution of 

the United States.3 Certain scholars have noted that the explosion of human rights legislation 

and treaties has led to a “transjudicial dialogue on human rights [that] has blurred the distinction 

between comparative constitutional law and international law.”4

 

It should be noted that the English courts are required by law to take into account decisions of 

the European Court of Justice5

 and organs of the European Convention on Human Rights.6 Even 

prior to the incorporation of these legal obligations, however, the House of Lords had been 

utilizing comparative methods from other jurisdictions. In White et al., the Law Lords took a 

comparative law approach, with Lord Nicholas noting in the first paragraph of his opinion that 

“courts in other jurisdictions had reached opposite conclusions.”7

 The judgment in this case 

referred to cases from New Zealand, Australia, the United States, and Germany. During the trial 

the Law Lords were referred to over forty cases of English and foreign law. Lord Steyn 

expressly acknowledged that due to the complexity of the case he also referred to academic 

writings on foreign law to aid him in his judgment, stating: “such material, properly used, can 

sometimes help to give one a better insight into the substantive arguments.”8

 Additionally, 

during his opinion Lord Goff expressed reservations over using comparative practices between 

Germany’s civil system and England’s common law traditions, but noted that the use of not only 

cases but comparative writings aided him, stating: 

We can, I believe, see this most clearly if we compare the English and German reactions 

.... Strongly though I support the study of comparative law, I hesitate to embark in an 

opinion such as this upon a comparison, however brief, with a civil law system; because 

experience has taught me how very difficult, and indeed potentially misleading, such an 

exercise can be. Exceptionally however, in the present case, thanks to material published 

in our language by distinguished comparatists, German as well as English, we have direct 

access to publications which should sufficiently dispel our ignorance of German law and 

so by comparison illuminate our understanding of our own.[9]

 

3 See, e.g., R. v. Camberwell Green Youth Court [2005] UKHL 4 [14], where parallels were drawn between the U.S. 

Constitution and the European Convention on Human Rights. Lord Hoffman noted: 

It is for the people of the United States, and not for your Lordships, to debate the virtues of the Sixth Amendment in 

today’s world. It overlaps, to some extent, with article 6(3)(d) of the Convention as interpreted by the European 

Court. But, as interpreted by the Supreme Court, the Sixth Amendment appears to go much further towards 

requiring, as a check on accuracy, that a witness must give his evidence under the very gaze of the accused. For my 

part, I would certainly not disparage the thinking behind that requirement. But, whatever its merits, this line of 

thought never gave rise to a corresponding requirement in English law. Id. 

4

 Karen Knop, Here and There: International Law in the Domestic Courts, 32 N.Y.U. J. INT’L L. & POL. 501 (2001). 

5

 European Communities Act 1972, c. 68 § 3. 

6

 Human Rights Act 1998, c. 42, § 2(1). 

7

 White et al. v. Jones et al, [1995] 2 AC 207. 

8 Id. 

9 Id. 

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The Impact of Foreign Law on Domestic Judgments: England and Wales

The House of Lords has, where relevant, used decisions from foreign courts in these cases to 

compare how the rights have been interpreted. This applies for not only the European 

Convention on Human Rights, but also for a number of other international treaties. For example, 

in A v. Secretary of State, foreign cases were used throughout the opinions of the Law Lords, 

which was considering the use of evidence that may have been obtained by torture. It noted how 

the Torture Convention had been implemented into the law of France, Canada, the Netherlands, 

Germany, and the United States.10 During this case, numerous foreign decisions were referred 

to—three from the Supreme Court of the United States, twelve from the Supreme Courts of six 

other countries, and others from international courts and tribunals.11 Some commentators have 

noted that the use of so many foreign cases was a “conscious attempt to put the practice of the 

UK within a global context and to upgrade the common law to modern international 

standards.”12 In fact, the approach of Lord Bingham was highly commended by an article in the 

Law Society Gazette, which provided: 

Lord Bingham has performed brilliantly in the job for which he was specifically selected 

in defiance of the principle of “buggin’s turn”, which would have given it to another. He 

has stitched the Human Rights Act into the fabric of our domestic law and, in doing so, 

aligned our jurisprudence with that of an emerging global approach. The breadth of the 

approach of the House of Lords under his leadership throws into stark relief the decline 

of its US equivalent ... this was a conscious attempt to put the practice of the UK within 

a global context and to upgrade the common law to modern international standards.[13]

In another case, heard by the House of Lords in 2002, Lord Bingham noted at the beginning of 

his opinion his apparent favor towards the use of comparative law in achieving a fair and just 

outcome that served the ends of justice: 

This survey shows, as would be expected, that though the problem underlying the cases 

such as the present is universal the response to it is not.... But ... most jurisdictions would, 

it seems, afford a remedy to the plaintiff. Development of the law in this country cannot 

of course depend on a head-count of decisions and codes adopted in other countries 

around the world, often against a background of different rules and traditions. The law 

must be developed coherently, in accordance with principle, so as to serve, evenhandedly, the ends of justice. If, however, a decision is given in this country which 

offends one’s basic sense of justice, and if consideration of international sources suggests 

that a different and more acceptable decision would be given in most other jurisdictions, 

whatever their legal tradition, this must prompt anxious review of the decision in 

question. In a shrinking world ... there must be some virtue in uniformity of outcome 

whatever the diversity of approach in reaching that outcome.[14]

 

10 A et al. v. Secretary of State, [2005] UKHL 71 [35]. 

11 Id. (generally). 

12 Roger Smith, Rights and Wrongs: A Hard Act to Follow, L. SOC’Y GAZETTE 105.40(1) (2008). 

13 Id. 

14 Fairchild v. Glenhaven Funeral Services Ltd. and others; Fox v. Spousal (Midlands) Ltd.; Matthews v. Associated 

Portland Cement Manufacturers (1978) Ltd. and others, [2002] UKHL 22 [34]. 

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The Impact of Foreign Law on Domestic Judgments: England and Wales

The opinions of the Law Lords in this case included substantive references to a number of 

foreign cases and materials from a significant number of different jurisdictions, with different 

legal systems. Cases were referred to and discussed from the common law countries of 

Australia, New Zealand, Canada, and the United States; from Scotland, a mixed jurisdiction; and 

from civil law jurisdictions, including France, Germany, the Netherlands, Greece, Spain, and 

Norway; and the opinions also included references to Roman law.15 Indeed, it has been noted 

that the use of German legal materials in this case was: “a ‘difficult’ book even for German 

lawyers to use,”16 and that it was not counsel that requested the use of foreign law in this 

instance, but the Law Lords themselves, who requested to be “addressed on the solutions adopted 

by civilian law systems, thus ‘forcing’ Counsel to extend their research and argument beyond the 

traditional consideration of Commonwealth and American authority.”17

The value that comparative law can bring English law through the use of foreign cases has been 

observed many times in the House of Lords, with the Law Lords on different occasions noting 

that England can learn much from legal developments in other jurisdictions.18 

III. Restrictions on the Use of Foreign Judgments in the Lower Courts 

The benefits of the use of foreign judgments in the lowers courts in England and Wales have 

been noted in a Practice Direction,19 which regulates the use of foreign cases in these courts. 

The Practice Direction acknowledges that “cases decided in other jurisdictions can, if properly 

used, be a valuable source of law in this jurisdiction.”20 However, the same paragraph that 

advocates the use of foreign cases also comes with a warning that, “at the same time, however, 

such authority should not be cited without proper consideration of whether it does indeed add to 

the existing body of law.”21 

These courts are permitted to use foreign cases for comparative purposes, but have restrictions 

on the cases that can be used in court. A Practice Direction notes that: 

In recent years, there has been a substantial growth in the number of readily available 

reports of judgments in this and other jurisdictions, such reports being available either in 

published reports or in transcript form. Widespread knowledge of the work and decisions 

of the courts is to be welcomed. At the same time, however, the current weight of 

available material causes problems both for advocates and for courts in properly limiting 

 

15 Id. See also Orucu, supra note 1. 

16 Sir Basil Markesinis & Jörg Fedtke, The Judge as Comparatist, 80 TUL. L. REV. 11 (Nov. 2005) (referring to 

Fairchild, [2002] UKHL 22 [25]). 

17 Id. 

18 White et al. v. Jones et al., [1995] 2 AC 207. 

19 Practice Direction on the Citation of Authorities, http://www.hmcourts-service.gov.uk/cms/814.htm (last visited 

Mar. 15, 2010). This practice direction applies to all courts in England and Wales, with the exception of the 

criminal courts, but extends to the Court of Appeal’s Criminal Division. See id. ¶ 5. 

20 Id. ¶ 9.1. 

21 Id. 

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The Impact of Foreign Law on Domestic Judgments: England and Wales

The Law Library of Congress 32

 

the nature and amount of material that is used in the preparation and argument of 

subsequent cases.[22]

 

To ensure that foreign authorities are only cited in the English courts when their use would add 

to the law, the Practice Direction provides specific criteria that must be met. These are that the 

advocate citing the foreign authority must: 

 state the proposition of law that the authority shows; 

 indicate what the authority adds that is not found in the cases of England and Wales, 

or justify what adding a foreign authority to the domestic authorities would bring; 

and 

 certify that there is no authority in England and Wales that prohibits the acceptance 

of the proposition that the foreign authority seeks to establish.[23]

 

This Practice Direction also does not apply to cases that were decided in the European Court of 

Justice or the organs of the European Convention on Human Rights. As noted above, cases from 

these latter bodies have a special status in English law as a result of the European Communities 

Act 1972 and the Human Rights Act 1998.24

IV. Concluding Remarks 

As can be seen from the case examples from the House of Lords and the Practice Direction 

issued to the courts of England and Wales, the use of foreign cases and comparative law is 

widely accepted in England. While the use is regulated, in that there must be specific reasons for 

resorting to foreign law, its value is not underestimated. 

In an article in the International and Comparative Law Quarterly, T. Koopmans expressed his 

opinion that the twenty-first century may become the era of comparative methods, opining that: 

As we share so many difficult problems of society, and as we live closer and 

closer together on the planet, we seem bound to look at one another’s approaches and 

views. By doing so we may find interesting things—but we may also find ways to cope 

with the tremendous legal challenges that seem to be in store for us.[25]

 

22 Id. ¶ 1. 

23 Id. ¶ 9.2. 

24 Id. ¶ 9.3 (referring to the European Communities Act 1972, c. 68, § 3; and the Human Rights Act 1998, c. 42, 

§ 2(1)). 

25 T. Koopmans, Comparative Law and The Courts, 45 INT’L & COMP. L.Q. 545, 556 (July 1996). 
France 

Nicole Atwill 

Senior Foreign Law Specialist 

SUMMARY French courts are among those that do not, as a rule, cite other court decisions or academic 

authority, with the exception of European Court of Human Rights caselaw. There is, 

however, a growing trend by these courts to inform themselves about foreign law in 

diverse ways. References to foreign law principally can be found in the preparatory 

material of the case or in studies prepared by institutions specializing in comparative law. 

I. Introduction 

The French courts are among those that do not, as a rule, cite other court decisions or academic 

authority. Such a citation as a reason for the decision reached by the court could be grounds for 

a legal challenge for annulment.1

 In addition, the judgments of the Cour de Cassation, France’s 

Supreme Court for civil and criminal matters, and to a lesser extent those of the administrative 

courts, are also known for their brevity and specific style. Guy Canivet, the former First 

President of the Cour de Cassation, believes that these are the reasons why French courts do not 

overtly use foreign law. In one of his lectures, he explained these reasons in the following way:2

In France, the Cour de Cassation and the other jurisdictions are structurally inhibited, by 

the traditional style in which a decision must be written and the prohibition to mention 

precedents, to expressly refer to foreign laws in the body of the decision. 

This does not mean, however, that foreign law has no significance for the French courts, in 

particular its two highest courts. In fact, there is a growing trend by these courts to inform 

themselves about such law in diverse ways.3 This report first examines the use of foreign law by 

the Conseil d’Etat, France’s Supreme Court for administrative matters. The Conseil d’Etat was 

the first to break with tradition in recently citing a judgment of the English High Court of Justice 

in one of its decision. The report then addresses the use of foreign law by the Cour de Cassation

and finally looks at the citation of European Court of Human Rights caselaw by French courts. 

 

1

 Ch. 2: A Quick Glance at Seven Jurisdictions, in SIR BASIL MARKESINIS & JÖRG FEDTKE, JUDICIAL RECOURSE TO 

FOREIGN LAW: A NEW SOURCE OF INSPIRATION? 64 (UCL Press 2006). 

2 Id. at 65 (quoting Guy Canivet [source unknown]) (translation by the author of this report, N.A.). Canivet also 

stated in another article that 

... the French courts, in principle, cannot cite doctrinal authorities or jurisprudence in their 

judgments, whether it be national, supranational, or foreign. Additionally, the French decisions of 

the highest courts are particularly brief because by tradition and in principle they proceed by 

strictly deductive reasoning which prevents the elaboration of the true motives of the judgment. 

Guy Canivet, Ch: 6: The Practice of Comparative Law by the Supreme Courts, in SIR BASIL MARKESINIS & JÖRG 

FEDTKE, JUDICIAL RECOURSE TO FOREIGN LAW 317 (UCL Press 2006). 

3 Id. at 65, 66. See also SIR BASIL MARKESINIS & JÖRG FEDTKE, ENGAGING WITH FOREIGN LAW 220-23 (Hart 

Publishing 2009). 

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The Impact of Foreign Law on Domestic Judgments: France

II. Use of Foreign Law by the Conseil d’Etat 

France has a dual court system, with civil and criminal courts as well as administrative courts. 

Administrative courts form a three-tier hierarchy headed by the Conseil d’Etat, below which are 

the regional administrative courts and the administrative tribunals. The Conseil reviews the 

decisions of the lower administrative courts. 

Information on foreign laws are generally found in the conclusions of the Commissaire du 

government (Government Commissioner) or in the file prepared by the reporting judge. Under 

administrative procedure rules, once an action is filed before an administrative court, a reporting 

judge is appointed to the case and is charged with putting together a file that will be presented 

later to the court. The completed file is then handed over to the Government Commissioner who, 

contrary to its name, studies and researches cases as a neutral party. The Commissioner prepares 

an opinion (referred to as conclusions) setting forth the facts and analyzing the legal issues that 

should be raised. The Commissioner’s opinions are generally very well researched and written, 

as well as creative.4

 In important cases, they are published either in legal journals or in the 

Recueil des Arrêts du Conseil d’Etat, the official publication of the Conseil d’Etat’s decisions.5 

According to Roger Errera, a former member of the Conseil d’Etat, the Government 

Commissioners’ opinions show that there has been an interest in foreign laws principally in the 

following fields: civil liability, extradition, and civil liberties.6 Errera’s analysis is summarized 

in subparts A-C, below. 

A. Civil Liability 

In one of the earliest cases, decided in 1895, which dealt with state liability arising from the 

injuries sustained by a state arsenal employee where there was no fault on either side, Errera 

noted that the Commissioner quoted Belgian and Luxembourg law.7 In a 1994 case where the 

court had to decide whether the principle of confiance légitime (legal theory related to legitimate 

expectations) should be the basis for state liability in cases of violation of such principle, the 

Commissioner referred to the law of Germany, Luxembourg, and the European Court of Justice.8

 

In 2001, when the Conseil had to decide the extent of state liability for negligent supervision of 

banks, the Commissioner quoted the laws and practices of the United States, Great Britain, and 

Germany.9

 

Two major medical liability cases gave the opportunity to the Commissioners assigned to them 

to further use foreign laws in their opinions. In the first case, a mother was told by the hospital 

 

4

 JOHN BELL ET AL., PRINCIPLES OF FRENCH LAW 61 (Oxford Univ. Press 2008). 

5 Id. 

6

 Roger Errera, Ch. 10: The Use of Comparative Law Before the French Administrative Courts, in GUY CANIVET ET 

AL., COMPARATIVE LAW BEFORE THE COURTS 156 (British Inst. of Int’l & Comp. Law 2004). 

7 Id. 

8 Id. at 156, 157. 

9 Id. at 157. 

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The Impact of Foreign Law on Domestic Judgments: France

that her child would be normal following an amniocentesis. The child was born with Down 

syndrome. The mother had notified the hospital that she would rather have an abortion than an 

abnormal child. The Conseil found that the state hospital was at fault for failing to notify the 

mother of the significant margin of error of an amniocentesis. As a result, she had not asked for 

another test. In this case the Commissioner had quoted American and British caselaw on 

wrongful life.10 In the second case, the Paris Administrative Court and, on appeal, the Conseil,

found that the Paris Hospitals Administration was not at fault for giving a transfusion to a 

Jehovah’s Witness who had explicitly refused it, considering his critical state at his admission. 

Both Commissioners involved in the case had quoted American, English, and Canadian 

caselaw.11

B. Extradition 

In the case of Mme. Aylor, Errera noted, the Commissioner looked at the laws and practices of 

Germany, Italy, Austria, Denmark, Switzerland, and Great Britain, where extradition was 

requested by a state that still applied the death penalty to the offense committed.12 In another 

extradition case, the law and practice of the state of California regarding the death penalty was 

cited.13

C. Civil Liberties 

Numerous examples of the use of foreign law can be found in the field of civil liberties, Errera 

said. In a 1999 case, for example, the Commissioner cited the law of numerous European 

countries as the Conseil had to decide whether a statute prohibiting the publication of polls two 

weeks before an election violated Article 10 of the European Convention on Human Rights 

(concerning freedom of expression).14 In 1990, the constitutional case law of Germany, Spain, 

the United States, Austria, Italy, Norway, Portugal, and Canada was examined to determine 

whether the French law on abortion was compatible with the right to life set forth in Article 6 of 

the International Covenant on Civil and Political Rights, and Article 2 of the European 

Convention on Human Rights.15 

Finally, as mentioned earlier, the Conseil broke with the tradition of not citing cases by expressly 

citing, in its own decision, a decision of the English High Court of Justice concerning labeling 

under EU law. In the Case of Société Techna S.A. rendered on October 29, 2003, the Conseil

addressed the issue of whether the decree transposing EU directive 2002/2/EC (relating to the 

Percentage Ingredient Declaration of Compound Feed) into French law should be suspended 

pending a determination of the Directive’s validity by the European Court of Justice. The 

 

10 Id. at 157, 158. 

11 Id. at 158. 

12 Id. at 159 & n.23. 

13 Id. 

14 Id. 

15 Id. at 160. 

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The Impact of Foreign Law on Domestic Judgments: France

Conseil stated that it was suspending the decree for the same reasons cited by the English High 

Court in suspending the Directive in England.16

In addition to the Government Commissioners’ opinions, studies on foreign laws and practices 

may be found in the public annual report prepared by the Conseil. These studies are prepared by 

French and foreign contributors. The 2009 report, for example, contains a study entitled 

“Foreign experiences in matters of contracts,”17 while the 2008 report addressed “The right to 

healthy housing, putting health at the centre of English housing policies.”18 

III. Use of Foreign Law by the Cour de Cassation 

The Cour de Cassation is referred to as the guardian of the law. It only reviews questions of 

law, not questions of fact. The Court’s essential purpose is to ensure that the interpretation of the 

law is uniform throughout the country.19 The Court’s decisions are usually short, unsigned, and 

without concurrences or dissents. The Court reviews approximately 17,000 to 22,000 cases a 

year. The Court has six chambers: five civil chambers (three strictly civil; a commercial, 

economic, and financial chamber; and a social chamber) and a criminal chamber. It is composed 

of a First President, six chamber presidents, eighty-nine judges, and sixty-six assistant judges.20

As in the case of the Conseil d’Etat, references to foreign laws may be found in the opinions of 

the Avocats Generals (General Advocates), who have a role similar to the role of the 

Government Commissioners in administrative cases, or the file prepared by the reporting judges. 

Until recently, these documents were rarely published and focused entirely on national law.21 It 

is under the presidency of its former First President, Guy Canivet, that the Cour de Cassation

started to develop a greater interest in foreign law.22 Canivet was First President of the Cour de 

Cassation from 1999 to 2007, at which time he was appointed to the Constitutional Council. 

In addition to the opinions of the General Advocates or the conclusions of the reporting judges 

mentioned above, the Cour de Cassation sometimes resorts to outside neutral institutions or 

universities to prepare comprehensive studies on the state of foreign law on issues before it. This 

way of proceeding is seen as increasing “the reliability and up-to-date nature of the research” and 

 

16 Conseil d’Etat [CE], Oct. 29, 2003, Societe Techna S.A. et autres, No. 260768, available at Lexbase A9824c9Q 

(fee database). 

17 CONSEIL D’ETAT, 2 RAPPORT PUBLIC 2009 (La Documentation Française, 2009), http://www.lado 

cumentationfrancaise.fr/rapports-publics/094000298/index.shtml. 

18 CONSEIL D’ETAT, RAPPORT PUBLIC 2008 (La Documentation Française, 2008), http://lesrapports. 

ladocumentationfrancaise.fr/BRP/084000313/0000.pdf. 

19 Ordinance 2006-673 Reforming the Code of Judicial Organization art. 411.2, June 8, 2006, Journal Officiel de la 

République Française [J.O.] [Official Gazette of France], June 9, 2006, p. 8710. 

20 Cour de Cassation, Institution, http://www.courdecassation.fr/ (last visited Mar. 12, 2010). 

21 MARKESINIS & FEDTKE, supra note 3, at 221. 

22 Id. 

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The Impact of Foreign Law on Domestic Judgments: France

as “insulating the court from criticism of bias or obvious incompetence” where the judges are not 

in a position to read the foreign texts.23

The Court, for example, requested that the Société de législation Comparée (French Comparative 

Law Institute) prepare two research reports, one on the case of wrongful birth and the other on 

whether a person who has caused a car accident that led to a miscarriage could be charged with 

manslaughter.24 These studies were circulated in advance to all the parties.25 

In a 2007 case, the Cour de Cassation ruled that same sex marriages are invalid under French 

law and that a marriage is a union between a man and a woman under the Civil Code. The Court 

had asked the Institute of Comparative Law of Lyon to provide a study on how other countries 

dealt with the issue. The study had considered the laws of several American States, Great 

Britain, Denmark, Sweden, Germany, the Netherlands, Belgium, and Spain as well as a decision 

of the South African Supreme Court.26 

In the opinion of Canivet, the analysis of the jurisprudence of the Cour de Cassation shows that 

recourse to foreign law is found, for example, each time that: 

... the national law has the need to be completed or modernised; when the judge rules on 

the great societal issues; when the question is common to several countries; when the 

solution has an economic dimension that exceeds the limits of the legal system in which 

it applies; and finally when it is a question of deciding purely technical matters. 

Finally, the Cour de Cassation also benefits from information communicated by judges who 

have been sent on duty abroad (juges de liason). This was the case when the court had to deal 

with the issue of the professional confidentiality of religious ministers versus the needs of a 

criminal investigation. In this case, the General Advocate found information on other countries’ 

solutions through the juges de liason network.27 The Court also entered into a judicial 

cooperation agreement with Great Britain in 1994, which was extended to Ireland in 2007. 

Under this agreement, exchanges of judges are organized to further their knowledge of the laws 

of the other participating countries.28

 

23 Id. at 223. 

24 Guy Canivet, Ch. 12: The Use of Comparative Law Before the French Private Law, in GUY CANIVET ET AL., 

supra note 6, at 191. 

25 Id. 

26 MARKESINIS & FEDTKE, supra note 3, at 222-23. 

27 Canivet, The Practice of Comparative Law by the Supreme Courts, supra note 2, at 328. 

28 Cour de Cassation, Activité Internationale, http://www.courdecassation.fr/activite_internationale_5/ 

britanno_irlandais_632/ (last visited Mar. 12, 2010). 

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The Impact of Foreign Law on Domestic Judgments: France

The Law Library of Congress 38

 

IV. Citation of European Court of Human Rights Caselaw 

As France has recognized the superiority of a treaty over domestic law,29 the courts are bound to 

apply the European Convention for the Protection of Human Rights and Fundamental 

Freedoms.30 The courts have achieved this aim in part by referring to the caselaw of the 

European Court of Human Rights that has extensively interpreted the Convention’s rights and 

freedoms. There are many examples of the Conseil d’Etat31 or the Cour de Cassation32 overtly 

referring to the caselaw of the European Court of Human Rights. As stated by Canivet, “these 

references are quite impressive if we keep in mind the French courts’ traditional refusal to cite 

judicial precedent in their decision.”33

V. Concluding Remarks

France’s two highest courts have recently shown a greater interest in informing themselves about 

foreign laws. As a rule, they have not overtly referred to foreign judgments, with the exception 

of European Court of Human Rights caselaw. Reference to foreign laws can be found in the 

preparatory material of the case or in studies prepared by institutions specializing in comparative 

law. The future will shows whether this recent trend will continue and grow. 

29 1958 CONST. art. 55. 

30 European Convention for the Protection of Human Rights and Fundamental Freedoms, entered into force Sept. 3, 

1953, available at the website of the European Court of Human Rights, http://www.echr.coe.int/ 

ECHR/EN/Header/Basic+Texts/The+Convention+and+additional+protocols/The+European+Convention+on+Huma

n+Rights/. 

31 Bruno Genevois, La Cour Européenne des droits de l’homme vue du Palais Royal, in PAUL TAVERNIER, LA 

FRANCE ET LA COUR EUROPEENNE DES DROITS DE L’HOMME 1998-2008 at 165-83 (2009). 

32 Canivet, supra note 24, at 189. 

33 Id. at 189 n.28. 
Germany 

Edith Palmer 

Senior Foreign Law Specialist 

SUMMARY Germany’s Federal Constitutional Court occasionally uses foreign law comparisons when 

interpreting German constitutional law. This use of the comparative method has not been 

questioned in general. Dissenting opinions, however, have at times disagreed with the 

relevance of the comparisons. In recent years, references to foreign laws have become 

more methodical and comprehensive.

I. Introduction 

In the past sixty years, German judges have occasionally looked at the legal doctrines, laws, and 

judicial decisions of other countries to help them resolve a legal or constitutional issue.1 In 

particular, the Federal Court of Justice (FCJ) and the Federal Constitutional Court (FCC) have 

included comparative remarks in some decisions. The former is the court of last review for cases 

on private law and criminal law,2 and the latter has exclusive jurisdiction over constitutional 

issues.3 

This short article will focus on the comparatist endeavors of the FCC. Since its creation in 

1951,4

 this Court has become a powerful force in interpreting the Basic Law, the German 

Constitution that was enacted in West Germany in 1949.5 The decisions of the FCC have also 

attracted interest in other countries,6 and German constitutional thinking had an impact on the 

European Court of Human Rights (ECtHR) and on the European Court of Justice as, for instance, 

in the development of the principle of proportionality as a guiding yardstick in the application of 

constitutional principles.7

The FCC also is of interest because it has some communality with the U.S. Supreme Court. In 

fact, the FCC was modeled to some extent after the U.S. Supreme Court.8

 Like the U.S. 

 

1

 BASIL MARKESINIS & JÖRG FEDTKE, ENGAGING WITH FOREIGN LAW 165-67 (Oxford, 2009). 

2

 WOLFGANG HEYDE, JUSTICE AND THE LAW IN THE FEDERAL REPUBLIC OF GERMANY 38 (Heidelberg, 1994). For a 

survey of the comparative decisions of the Federal Court of Justice, see Hannes Unberath, Comparative Law in the 

German Courts, in COMPARATIVE LAW BEFORE THE COURTS 307 (Guy Canivet et al. eds., 2004). 

3

 HEYDE, supra note 2, at 40. 

4

 Gesetz über das Bundesverfassungsgericht [BVerfGG], Mar. 12, 1951, BUNDESGESETZBLATT [BGBl., official law 

gazette for the Federal Republic of Germany] I at 243, as last repromulgated Aug. 11, 1993, BGBl. I at 1473, as 

amended. 

5

 Grundgesetz für die Bundesrepublik Deutschland [GG], May 23, 1949, BGBl 1. 

6

 GEORG VANBERG, THE POLITICS OF CONSTITUTIONAL REVIEW IN GERMANY 61 (Cambridge, 2005). 

7

 T. Jeremy Gunn, Deconstructing Proportionality in Limitations Analysis, 19 EMORY INT’L L. REV. 465 (2005). 

8 MARCEL KAU, UNITED STATES SUPREME COURT UND BUNDESVERFASSUNGSGERICHT 52 (Heidelberg, 2007). 

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The Impact of Foreign Law on Domestic Judgments: Germany 

Supreme Court, the FCC writes lengthy well-reasoned opinions that draw on a variety of 

resources, including history and interest-balancing;9 and, like the justices of the U.S. Supreme 

Court, their counterparts in the FCC may voice their dissent in a separate opinion.10 Moreover, 

in its decisions, the FCC has drawn comparisons to the U.S. Supreme Court and U.S. law more 

frequently than to the courts and laws of any other countries.11

II. Function, Organization, and Procedures of the Federal Constitutional Court 

(FCC)

The FCC’s jurisdiction extends to various types of constitutional issues. These include disputes 

between the organs of the federal government and between the federation and the states, judicial 

review of the constitutionality of federal and state law, and complaints by individuals that their 

constitutional rights have been violated by an act of government.12 The Court is composed of 

two senates of eight justices each and they decide by a simple majority. In case of a tie, the 

challenged measure is deemed constitutional and the defenders of its constitutionality write the 

opinion.13 

The justices of the Court also convene in several chambers of three justices. In these groupings 

they decide whether to accept or reject constitutional complaints of individuals. This procedure 

decreases the caseload of the Court, yet not as effectively as the denial of certiorari does for the 

U.S. Supreme Court, because the German justices still must provide a reasoned response to each 

individual complaint.14

III. The Decisions 

A. Overview 

Statistics on the number of cases in which the FCC used foreign law as an interpretative tool are 

not available. In 1974, Mössner counted twenty-four decisions that had employed foreign law 

comparisons. In 2009, Anna Cárdenas Paulssen counted fifty-nine decisions between 1951 and 

July 2007 in which the FCC had quoted the courts of other countries. 

Cárdenas Paulssen’s count, however, does not include the decisions that draw comparisons to 

foreign statutory law or doctrinal writing, nor does it include unpublished decisions. On the 

 

9

 DONALD KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 48 (Durham, 

1989). Among the major differences to the U.S. Supreme Court is the absence of stare decisis in Germany and a 

lack of interest in the subjective will of the framers of the Constitution as an interpretative tool. Id. at 49. 

10 KAU, supra note 8, at 482. 

11 In the fifty-nine decisions that quoted foreign courts and that were issued between September 1951 and February 

2007, U. S. courts were cited twenty-six times. See AURA CÁRDENAS PAULSEN, ÜBER DIE RECHTSVERGLEICHUNG 

IN DER RECHTSPRECHUNG DES BUNDESVERFASSUNGSGERICHTS 181-86 (Hamburg, 2009). 

12 GG. art. 93. 

13 BVerfGG § 15. See also ERNST BENDA & ECKART KLEIN, VERFASSUNGSPROZESSRECHT 51 (Heidelberg, 2001). 

14 KAU, supra note 8, at 443. 

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The Impact of Foreign Law on Domestic Judgments: Germany 

other hand, Cárdenas Paulssen includes numerous decisions in which the FCC examined foreign 

law in order to ascertain whether a principle had become part of customary international law or a 

general rule of international law.15 These are part of German domestic law, outranking domestic 

statutory law but being themselves outranked by the Basic Law.16 

It appears that the FCC was most active in its foreign law comparisons in the first two decades of 

its existence.17 Yet, in these and other early decisions, references to foreign law were sporadic 

and unsupported by citations, often generically referring to developments in other countries or 

“international developments.”18 As Sir Basil Markesinis, a veteran observer of the FCC, rightly 

states, this cursory and sketchy referral to foreign law is in marked contrast to the detailed and 

well-documented exposition of German law in the same decisions.19 

This treatment of foreign law in the decisions may indicate that foreign law comparisons are not 

central to the decision-making process of the Court, but are merely illustrative and anecdotal, 

rounding out a picture or making an additional point. On the other hand, this sketchy treatment 

in the opinions may have been preceded by lengthy debates in the deliberations of the Court. 

Markesinis suspected that this had happened in the Spiegel case, discussed below (Part II(B), The 

Early Cases).20 

During the 1980s and 1990s the FCC’s comparative activity slowed down, resulting only in a 

handful of cases.21 Since 2004, however, there has been an increase in comparatist decisions,22

and in these more recent decisions references to foreign law are more comprehensive and 

specific. Some recent decisions may also be of interest because they show how the FCC deals 

with human rights that are guaranteed by the European Convention on Human Rights (ECHR)23

(see Part II(C), below, Recent Decisions). 

B. The Early Decisions 

The use of foreign law comparisons in the early decisions of the FCC has been ascribed to the 

need of a new court to look at role models in the Western world when interpreting a new 

 

15 CÁRDENAS PAULSEN, supra note 11, at 31-32. 

16 See also Christian Hillgruber, in BRUNO SCHMIDT-BLEIBTREU ET AL., GG KOMMENTAR ZUM GRUNDGESETZ at 

776-77 (Köln, 2008). 

17 Jörg Mössner, Rechtsvergleichung und Verfassungsrechtsprechung, ARCHIV DES ÖFFENTLICHEN RECHTS 2004, 

193-94. 

18 Id. at 167. 

19 Basil Markesinis & Jörg Fedtke, The Judge as Comparatist, 80 TULANE L. REV. 11, 38 (2005). 

20 MARKESINIS & FEDTKE, supra note 1, at 170. 

21 Markesinis & Fedtke, supra note 19, at 42. 

22 CÁRDENAS PAULSEN, supra note 11, at 34. 

23 European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR], signed Nov. 4, 

1950, 213 U.N.T.S. 222. 

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The Impact of Foreign Law on Domestic Judgments: Germany 

Constitution.24 The famous decisions of that time include the Lüth case of 1958,25 citing Justice 

Cardozo, and the Spiegel case of 1966, referring to Swiss law and the “NATO allies.”26 

In Lüth, the FCC applied article 5 of the Basic Law, the guarantee of freedom of expression, to 

repeal an injunction that a German court had issued against Lüth, a German politician who had 

called for a boycott of a movie made by a producer who formerly made infamous Nazi 

propaganda movies. In a decision that became famous for extending the protection of the basic 

rights of the Basic Law to dealings governed by private law, the Court quoted Cardozo’s famous 

statement on freedom of expression as “the matrix, the indispensable condition of nearly every 

other form of freedom.”27 In addition, the Court referred to article 11 of the French Declaration 

of Human and Political Rights of 1789.28 

In Spiegel, the Court rejected a constitutional complaint of the editor of the Spiegel news 

magazine that had been brought after prosecutorial authorities searched the premises of the 

magazine for evidence of treason, of which the magazine was suspected after publishing 

sensitive materials. The Court rejected the complaint after balancing freedom of the press with 

security interests. The Court’s opinion asserted that other democracies would rule likewise, but 

cited only Swiss law and a Swiss commentator who spoke at a conference in support of this 

statement. In addition, the Court reasoned that a contrary ruling would make Germany look 

untrustworthy in front of other NATO members, all of which protect military secrets more 

thoroughly than Germany.29 

The dissenters in this four-to-four split decision reasoned that a comparison to the laws of other 

countries is irrelevant if only an individual provision is compared without evaluating the foreign 

legal system as a whole as to its suitability for a comparison.30

C. Recent Decisions 

An FCC decision of 200731 is of interest because the recourse to foreign law in the Court’s 

opinion and its criticism in the dissent raise, though in less strident tones, the same questions that 

Justice Scalia addressed in Lawrence v. Texas.32 In the July 2007 decision, the FCC ruled on the 

constitutionality of financial disclosure requirements for members of Parliament and held that the 

 

24 BASIL MARKESINIS & JÖRG FEDTKE, JUDICIAL RECOURSE TO FOREIGN LAW 76, 79 (Austin, 2006). 

25 Bundesverfassungsgericht [BVerfG], Nov. 22, 1951, Entscheidungen des Bundesverfassungsgerichts [BverfGE] 

7, 198, partially translated in KOMMERS, supra note 9, at 368. 

26 BVerfG, Jan. 27, 1966, BVerfGE 20, 162. 

27 BVerfG 7, 198, 208 (quoting Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 327 (1937)). 

28 BverfGE 7, 198, 208 (referring to the Déclaration des droits de l’homme et du citoyen, Aug. 26, 1789, available 

at http://archiv.jura.uni-saarland.de/BIJUS/constitution58/decl1789.htm). 

29 BverfGE, 20, 162, 221. For a translation of excerpts, see MARKESINIS & FEDTKE, supra note 1, at 169. 

30 BverfGE 20, 162, 208. See also MARKESINIS & FEDTKE, supra note 1, at 170, for translated excerpts. 

31 BVerfG, July 4, 2007, BverfGE 118, 277. 

32 As expressed in Lawrence v. Texas, 539 U.S. 558, 598 (2003) (Scalia, J., dissenting). 

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The Impact of Foreign Law on Domestic Judgments: Germany 

then newly enacted requirements were constitutional. The case was decided in the Second 

Senate, by a four-to-four split among the justices, which, in accordance with the Court’s 

procedural laws upheld the constitutionality of the challenged measure.33 

The Court held that, in the German case, the public’s interest in transparency outweighed the 

privacy interests of Members of Parliament. The Court also found that this balance was in 

keeping with international developments, because representative democracies had enacted 

increasingly stricter rules to protect against financial influence on parliamentary decisions. The 

Court then distinguished between parliamentary disclosure rules, the general publicity of tax 

returns, prohibitions of outside active income, and a mixture of these restrictions in the surveyed 

countries.34 

For disclosure to the public, the Court referred to the United States, Poland, and some 

unspecified Eastern European countries. For disclosure to the President of the Parliament, the 

Court referred to Italy. For publicity of tax returns, the Court referred to Sweden, Norway, and 

some Swiss cantons. For restrictions on outside active income, the Court referred to the 

Netherlands and Spain. Thereupon, the Court concluded that, in the light of these foreign laws, 

the German disclosure rules were not objectionable.35

The four dissenting justices found that the German disclosure requirements violated the 

constitutionally mandated independence of the representatives.36 They also found various flaws 

in the comparative law remarks contained in the Court’s opinion. They found that the countries 

that required disclosure were a minority, and that without a closer look at these foreign rules they 

could not be considered a suitable yardstick for Germany.37

The dissent questioned the relevance of comparisons to countries that require income disclosure 

of its population in general because such countries differed from Germany, where the privacy of 

personal data is a constitutional principle. In addition, the dissent argued that to restrict 

Members of Parliament from engaging in professional income-earning activities outside of their 

parliamentary functions would violate the German constitutional guarantee of the freedom to 

choose one’s profession.38 The dissent recommended that the legislature find other means for 

protecting against financial influence-peddling that would not infringe on constitutional 

guarantees, and concluded by stating that: 

Otherwise the danger would exist that, under recourse to other legal systems, the 

protection of the private sphere and the right to informational self-determination (Basic 

Law art. 2(1) in conjunction with art. 1(1)) would at first be treated as a relative value for 

 

33 BVerfGG § 15. 

34 BVErfGE 118, 356. 

35 Id. at 357. 

36 Id. at 377. 

37 Id. at 398. 

38 Id. at 399. 

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The Impact of Foreign Law on Domestic Judgments: Germany 

Members of Parliament, later on for other societal groups, and ultimately for all 

citizens.[39]

 

An FCC decision of 2008 ruled on the constitutionality of a criminal prohibition of incest 

between siblings.40 As compared to the skimpy comparisons of the earlier years, this decision 

contains a comprehensive and global survey of the laws of twenty countries, describing whether 

or not they penalize such incest or otherwise discourage it. It also analyzes the decision of 

foreign courts that had ruled on the constitutionality of such incest. The decision acknowledged 

that the foreign law survey was made by the Max Planck Institute for Foreign and International 

Criminal Law.41

Some references to recent FCC decisions may help to explain how FCC decisions relate to 

human rights guarantees of the ECHR. In a decision of 2006 on the right of aliens to make use 

of German sex change legislation,42 the FCC dealt with issues that are protected by the ECHR. 

The FCC held that a provision of the German Sex Change Act was irreconcilable with the 

German Basic Law and had to be changed by the legislature. The decision included an extensive 

survey of how other European countries, the ECtHR, and the Court of Justice of the European 

Union had applied the ECHR to this issue. In this case, the FCC did not compare the foreign 

laws and decisions for the purpose of interpreting the German constitutional guarantees. Instead, 

these foreign decisions and enactments were scrutinized to ascertain the content of the human 

rights guarantees of the ECHR. 

In Germany, the ECHR is effective at the level of ordinary statutory law. Yet, the FCC cannot 

be petitioned to rule on the compatibility of the ECHR with German legislative or administrative 

acts; to pursue such a claim, the plaintiff must exhaust the national remedies and then file a claim 

with the ECtHR.43 The FCC may disagree with a decision of the ECtHR if the latter does not 

conform to core tenets of the Basic Law.44 Generally, however, the FCC uses the ECtHR 

decisions as a guide for interpreting the German Basic law, given that the human rights 

guaranteed in both instruments are similar. This was last demonstrated in a decision of the FCC 

of 2008, in which the Court had to rule on an issue balancing privacy versus freedom of the 

press,45 a topic on which the ECtHR and the FCC disagree.46

 

39 Id. (translated by the author, E.P.). 

40 BVerfG, Feb. 2, 2008, docket no. 2 BvR 392/07, available at JURIS (by subscription). 

41 Id. at ¶ 15. 

42 BVerfG, July 18, 2006, BverfGE 116, 243. 

43 Schmidt-Bleibtreu et al., supra note 16, at 105. 

44 BVerfG, Oct. 14, 2004, BVerfGE 111, 307. 

45 BVerfG , Feb. 26, 2008, docket no. 1 BvR 1626/07, available at JURIS (by subscription). 

46 Anmerkung, Gewerblicher Rechtsschutz und Urheberrecht 2008, 547. 

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The Impact of Foreign Law on Domestic Judgments: Germany 

IV. Scholarly Doctrines 

The FCC’s limited recourse to foreign law comparisons has spawned a limited amount of 

scholarly interest. Whereas scholars have readily endorsed the judicial use of the comparative 

method in the realm of private law,47 the opinions on the use of this method for constitutional 

interpretations have varied. A cautious approach was adopted by Jörg Mössner in 1974.48 He 

would limit the use of the comparative method to the interpretation of existing rules, and he 

suggests that comparison with foreign countries works best if they have similar constitutional 

systems.49 

In 2005, Bernd Wieser suggested that the comparative method is justified in constitutional cases 

because constitutions contain so many broad and abstract concepts that benefit from concrete 

examples in their interpretation.50 Yet, he also recommended that comparison should be limited 

to foreign countries with compatible constitutional values, and he rejects the comparative method 

as a tool for creating transnational uniformity in constitutional law.51 Although Wieser is an 

Austrian scholar his work is relevant for German scholarship due to his detailed involvement 

with German theories.52

The other end of the spectrum in the range of German opinions on the use of foreign law in 

constitutional decisions is reflected in the work of Susanne Baer.53 In 2004 she summarized her 

thoughts on the desirability of and methodology for foreign law comparisons in constitutional 

law as follows: 

In comparative constitutional law, method is as crucial as it is underdeveloped. 

The article proposes to apply methodologies developed in gender studies, critical race 

theory, post-colonial theory, and intercultural settings to comparative law. Namely, it is a 

call to develop intersubjective [sic] competence and abilities in order to properly deal 

with the “other.” Encounters with the “other” are frequent in comparative law and, 

looked at in detail, come with almost every term discussed in comparative 

constitutionalism. Questions like “what is a court,” “how important are economic and 

social rights?,” or “which right is at stake in cases of abortion?,” then deserve answers 

based on a reflexive understanding of one’s legal system. Such an understanding is 

needed in a world in which we see more uses and growing acceptance of comparative 

legal reasoning in higher courts, in a world in which transnational legal practice 

constantly confronts us with a variety of legal systems and cultures, and in a world in 

 

47 MARKESINIS & FEDTKE, supra note 1, at 168. 

48 Mössner, supra note 17, at 195. 

49 Id. at 241-42. 

50 BERND WIESER, VERGLEICHENDES VRFASSUNGSRECHT 35 (Wien, 2005). 

51 Id. at 35-37. 

52 Id. at 4-5. In BverfGE 118, 277, the dissent quoted WIESER, supra note 50, at 398. 

53 Susanne Baer, Verfassungsvergleichung und reflexive Methode: Interkulturelle und intersubjektive Kompetenz,

ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT UND VÖLKERRECHT 2004, 758. 

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The Impact of Foreign Law on Domestic Judgments: Germany 

The Law Library of Congress 46

 

which legal education calls for “key qualifications” to become, after all, a good lawyer 

able to deal with differences, inequalities, and similarities on the globe.[54]

 

The FCC itself stated its position on the use of comparisons to foreign law by other courts in 

1953,55 in relation to decisions of the German courts that had developed family law in 

accordance with the then new constitutional guarantee of equal rights of men and women.56 The 

FCC stated that the courts proceeded correctly when they applied the existing laws, to the extent 

that they were compatible with the new constitutional requirement, and when, in cases that 

required legal interpretation and the filling of gaps, they employed tried and tested judicial 

techniques, among them, comparisons to foreign law.57 

V. Conclusion

The FCC has at times resorted to foreign law comparisons in its interpretation of German 

constitutional principles. In the first two decades of the Court’s existence, these references to 

foreign law were cursory and sketchy, and they mostly looked to other Western democracies. In 

recent years, the Court has adopted a more methodical and global approach when drawing 

comparisons to foreign law. Throughout the Court’s existence, however, dissenting opinions 

have disagreed with the relevance of the chosen foreign law comparisons. 

The FCC surveys foreign law not only as an aid in the interpretation of the Basic Law, the 

German Constitution of 1949, but also to ascertain the content of international law principles and 

human rights guarantees expressed in international treaties. This activity reflects the increasing 

importance of international human rights standards. 

54 Id. (translated by the author, E.P.). 

55 BverfGE 3, 225, 244. 

56 GG, art. 3(2). 

57 For a translation of this passage, see MARKESINIS & FEDTKE, supra note 24, at 76. 
India 

Krishan S. Nehra 

Contract Foreign Law Specialist 

SUMMARY Indian legislation is under the strong influence of British and American law, and judges 

often rely on foreign court rulings in interpreting domestic statutes and international 

instruments. This is especially true in cases related to the protection of human rights, 

privacy, and the environment. 

Because it inherited a common law judicial system, India frequently relies upon foreign 

judgments in the interpretation of its laws. In fact, reliance on foreign precedents is necessary in 

certain categories of appellate litigation and adjudication.1 Indeed, the current Chief Justice of 

India stated in a lecture that Indian “domestic courts are called upon to engage with foreign 

precedents in fields such as ‘Conflict of Laws.’ ”2 

Indian laws are modeled on British statutes and enactments. The fundamental rights of citizens 

of India under the Constitution of India are based entirely on the U.S. Bill of Rights. As a result, 

it is imperative that the higher judiciary in India follow the precedents of foreign courts in 

clarifying the parameters of statutes applied. Courts are also required to review the text and 

interpretations of international instruments, e.g., treaties, conventions, and declarations. The 

Chief Justice of India has stated, “In recent years, the decisions of Constitutional Courts in 

common law jurisdictions such as South Africa, Canada, New Zealand and India have become 

the primary catalyst behind the growing importance of comparative constitutional law.”3 In 

India, as in the jurisdictions mentioned, reliance on foreign precedents has become commonplace 

in public law litigation. 

It is recognized that Indian courts look to international as well as comparative law sources in 

determining creative strategies for developing norms for the protection of life and liberty 

guaranteed by Article 21 of the Constitution of India. Reliance on foreign precedents is 

considered a vital instrumentality for the Indian Supreme Court’s decisions, which have 

extended constitutional protection to several socio-economic entitlements and causes, such as 

environmental protection, gender justice, and good governance, among others. Access to foreign 

legal materials has become much easier because of the development of information and 

communications technology. Thus, the Indian courts can more easily obtain and review foreign 

judgments and precedents for use in domestic law interpretations. 

 

1

 Chief Justice K.G. Balakrishnan, The Role of Foreign Precedents in a Country’s Legal System, Lecture at 

Northwestern University (Oct. 28, 2008) (transcript available on the Supreme Court of India’s website, at 

http://www.supremecourtofindia.nic.in/speeches/speeches_2008/28%5B1%5D.10.08_Northwestern_University_lect

ure.pdf). 

2 Id. at 1. 

3 Id. at 3. 

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The Impact of Foreign Law on Domestic Judgments: India 

The Law Library of Congress 48

 

Since the promulgation of its Constitution in 1950, courts in India have frequently relied on 

decisions from other common law jurisdictions, the most prominent among them being the 

United Kingdom, the United States, Canada, and Australia. The opinions from the courts of 

these countries have been readily cited and relied on in landmark constitutional cases dealing 

with the right to privacy, including one such case in which the Supreme Court of India dealt with 

unauthorized police surveillance and held it was a violation of the “right of privacy” on the facts 

of the case presented.4

 In upholding this right, the Court relied on numerous decisions of the 

U.S. Supreme Court.5 In another instance concerning freedom of the press,6 the Court relied on 

the U.S. Supreme Court’s decision in Kovacs v. Cooper.7 While subsequently upholding the 

death sentence, the Supreme Court of India relied on the U.S. cases of Furman v. Georgia, 

Arnold v. Georgia, and Proffitt v. Florida.

8

 

In a recent decision of the Delhi High Court, delivered on July 2, 2009, section 377 of the Indian 

Penal Code (No. 45 of 1876), which describes the offense of homosexuality, was declared a 

violation of those rights guaranteed under the Constitution.9 In declaring the provision 

unconstitutional, the High Court relied on a number of U.S. decisions, including Griswold v. 

State of Connecticut, where the U.S. Supreme Court invalidated a state law prohibiting the use of 

drugs or devices of contraception in protecting the right of privacy; Olmstead v. United States, 

where the Indian Supreme Court especially considered the dissent of Justice Brandeis on the 

right to privacy; and the landmark abortion decision, Roe v. Wade.10 

4

 Kharak Singh v. State of Uttar Pradesh, (1963) A.I.R. S.C. 1295. 

5 Id. (citing Munn v. Illinois, 94 U.S. 113 (1876); Wolf v. Colorado, 338 U.S. 25 (1949); Bolling v. Sharpe, 347 U.S. 

497 (1954)). 

6

 Bennett & Coleman v. Union of India, A.I.R. S.C. 106 (1973). 

7 Id. (citing Kovacs v. Cooper, 336 U.S. 77 (1949)). 

8

 Bachan Singh v. Union of India, (1980) A.I.R. S.C. 898 (citing Furman v. Georgia, 408 U.S. 238 (1972); Arnold v. 

Georgia, 224 S.E.2d 386 (Ga. 1976); Proffitt v. Florida, 428 U.S. 242 (1976)). 

9

 Naz Foundation v. NCT of Delhi, WP(C) No. 7455/2001. 

10 Id. (citing Griswold v. Connecticut, 381 U.S. 479 (1965); Olmstead v. United States, 277 U.S. 438 (1928); Roe v. 

Wade, 410 U.S. 113 (1973)). 
Israel 

Ruth Levush 

Senior Foreign Law Specialist 

SUMMARY Israeli courts, particularly the Supreme Court, extensively cite foreign law for purposes of 

analyzing Israeli law. This practice evolved during the British Mandate era, continued 

after the State became independent, and has resulted in both common law as well as 

continental law influencing Israeli law. The citation of foreign law by the Court does not 

make the cited foreign law binding on Israeli courts, and is used for inspirational purposes 

only. 

I. Introduction 

The citation of foreign law by Israeli courts is relatively common. The scope and purpose of 

such citation, however, has changed over the years. Until repealed in 1980, a statutory 1922 

British Mandate requirement to apply English common law and equity when Israeli law was 

silent was part of the existing law. Following its repeal, the reference to English law, much like 

references to the laws of other countries, became merely optional. Even before its repeal, the 

requirement that English law be imported into the Israeli system had not been implemented by 

Israeli judges, who viewed the conditions arising from the state’s independence in 1948 as 

justifying deviation from English law based on the exception recognized in the original 1922 law 

for different circumstances of the country and its inhabitants. 

While Israeli judges are under no obligation to apply or consider the law of England or any other 

country in analyzing Israeli law, a review of Israeli court decisions indicates that comparative 

law is frequently cited by the courts. References to the laws of the United States, the United 

Kingdom, Canada and Australia are said to be commonplace, as are references to the laws of 

Continental Europe (primarily German, French and Italian laws).1

 

II. Historical Background 

The State of Israel occupies part of the territory of Palestine. Prior to 1948, this territory 

included areas currently belonging to Israel, Jordan, the West Bank, and Gaza. Palestine was 

carved out of the Ottoman Empire after World War I and entrusted to Great Britain as a 

mandated territory by the League of Nations. In accordance with the British Mandate’s art. 46 of 

the Palestine Order in Council 1922, domestic courts were instructed to exercise the Ottoman 

Law in force in Palestine on November 1, 1914, as well as orders in council, ordinances, and 

regulations imposed by the British authorities. Where no law existed on a particular matter 

(lacuna), courts were instructed to exercise their jurisdiction: 

 

1

 Aharon Barak, Comparison in Public Law, in JUDICIAL RECOURSE TO FOREIGN LAW 287, 292 (Sir Basil 

Markesinis & Professor Jörg Fedtke eds., UCL Press 2006). 

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The Impact of Foreign Law on Domestic Judgments: Israel 

...in conformity with the substance of the common law and the doctrines of equity in 

force in England. ... Provided always that the said common law and doctrines of equity 

shall be in force in Palestine so far only as the circumstances of Palestine and its 

inhabitants and the limits of His Majesty’s jurisdiction permit and subject to such 

qualifications as local circumstances render necessary.[2]

 

Following the establishment of the State of Israel, art. 11 of the Law and Administration 

Ordinance 19483

 continued the application of the then existing law, subject to necessary 

modifications that might have resulted from the establishment of the State and its authorities. 

In 1980, the link to English common law and doctrines of equity contained in Article 46, cited 

above, was repealed by Foundation of Law, 5740-1980,4

 section 1 of which stated, “[W]here the 

court, faced with a legal question requiring a decision, finds no answer to it in statute law or case 

law or by analogy, it shall decide it in the light of the principles of freedom, justice, equity and 

peace of Israel’s heritage.”5 

III. Impact of Israel’s Heritage as Compared with Foreign Law 

According to judicial interpretation, the above cited provision of the Foundation of Law, 5740-

19806 recognizes specific principles of Israel’s heritage, including freedom, justice, equity and 

peace, rather than general Jewish law, as a source for judicial decisions when there is no relevant 

law either in a statute, in case law, or by analogy.7

 

A 1980 decision of the Israeli Supreme Court demonstrates the Court’s approach. Supreme 

Court President Aharon Barak rejected Jewish law as a basis for the interpretation of the right of 

a finder under the Israeli legislation of the Restoration of Lost Property Law, 5733-1973.8

 He 

held that Jewish law is not a source of law in the State of Israel, but that it can be used for 

judicial inspiration for comparison purposes. Comparative law, in the court’s view, is useful 

“when the legal institutions that are being compared are compatible, in that they are based on 

mutual basic assumptions and are designed to obtain mutual goals.”9

 Justice Barak determined 

that the position of Jewish law in that case was irrelevant for the interpretation of Israeli 

legislation because of its focus on rewarding the finder for guarding a lost item if the original 

owner is not found, rather than on preservation of the original ownership.10 

 

2

 3 THE LAWS OF PALESTINE 2580 (rev. ed. 1933), STATUTORY RULES AND ORDERS 362 (London, 1923). 

3

 1 Laws of the State of Israel (LSI) 7 (5708-1948). 

4

 Foundation of Law, 5740-1980, 34 LSI 181 (5740-1979/80). 

5 Id. 

6

 Foundation of Law, 5740-1980, 34 LSI 181 (5740-1979/80). 

7 AHARON BARAK, 1 INTERPRETATION IN LAW 528-32 (Nevo Publishing, 1992). 

8

 Restoration of Lost Property Law, 5733-1973, 27 LSI 187 (1972/73). 

9

 Civil Appeal 546/78 Bank Kupat Am Ltd. v. Eliezer Handles, 34(3) Piske Din (P.D.) 57 (1980). 

10 Id. 

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The Impact of Foreign Law on Domestic Judgments: Israel 

In addition to obtaining inspiration by resorting to Jewish law principles, Israeli courts make 

frequent references to foreign law. This practice, in fact, seems to be more common than 

referring to Jewish law sources. In a 1984 decision, the Supreme Court expressly recognized 

that it may review court decisions from the United States or other foreign countries “that apply 

legal provisions similar to ours, for determination of our own views... for understanding similar 

legal provisions....”11 The reference is made for the purpose of comparison and has no binding 

effect. 

IV. The Impact of Foreign Law on Domestic Judgments 

Justice Barak actively promoted the use of comparative law in judicial lawmaking. In addition to 

writing numerous leading decisions on human rights and other significant constitutional 

principles, Barak has been a prolific writer and academic. In his 2006 book, The Judge in a 

Democracy, he expressed his support for the use of comparative law in adjudication. He stated 

that as a judge he was greatly assisted by case law from the courts of the United States, Australia, 

Canada, the United Kingdom and Germany. In his view, “comparing oneself to others allows for 

greater self-knowledge. ... A useful comparison can exist only if the legal systems have a 

common ideological basis.”12 

Barak listed the following three types of assistance that can be derived from the use of 

comparative law: 

(1) Interpretive Theory—“Comparative law helps the judge better understand the role of 

interpretation and of judicial making. Before judges decide their own position on the issue, 

they would do well to consider how other legal systems treat the question.”13 

(2) Finding Democracy’s Fundamental Values—“Democracies share common fundamental 

values. Democracy must infringe certain fundamental values in order to maintain others. It 

is important for judges to know how foreign law treats this question and what techniques it 

uses.”14 

(3) Comparative Law Solutions to Specific Situations—Barak stated that he was not 

advocating for the adoption of foreign arrangements but for an “open approach, one which 

recognizes that for all our singularity, we are not alone. That recognition will enrich our 

own legal systems if we take the trouble to understand how others respond in situations 

similar to those we encounter.”15

Comparative law is used in Israel to interpret statutes as well as constitutional issues. Although 

Israel does not have a written constitution contained in one document, it has eleven basic laws, 

 

11 Special Hearing 29-30/84 Kosoi v. Bank Foichtunger, 38(4) Piske Din (Decisions of the Supreme Court) 505 

(5745-1984). 

12 Reproduced in Barak, supra note 1, at 292. 

13 Id. at 289. 

14 Id. 

15 Id. 

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The Impact of Foreign Law on Domestic Judgments: Israel 

two of which have express provisions granting them higher normative value than regular laws. 

The Supreme Court, based on its interpretation of the Declaration of Independence, has 

developed additional constitutional principles.16 The following will address the use of 

comparative law in constitutional interpretation. 

V. Comparative Law and Constitutional Interpretation 

The citation of foreign constitutions in Israeli constitutional interpretation appears frequently in 

decisions of the Supreme Court. Court President Shamgar, however, in a 1995 leading decision, 

expressed a cautionary note: 

[B]ut it should be understood that the consideration of other constitutions and their 

implementation is merely comparative. Every constitution reflects in the protections of 

rights that are granted therein the social order of priorities that is unique to it and the 

outlooks that have been adopted in its society. It need not be added that there is also a 

whole range of political considerations that accompanies the formulation of a 

constitution. Thus, for example, in Canada it was decided not to include a prohibition 

against the violation of property in the Charter of Rights.17 

The citation of foreign law by the Supreme Court in interpreting the following two major issues 

under Israeli constitutional law exemplifies its approach to comparative law analogies. 

A. Environmental Law 

A 2004 decision of the Supreme Court in a petition regarding environmental rights further 

explains the role of comparative law in interpreting Israeli law. While noting that some countries 

recognize the existence of a constitutional right to an environment that is not harmful to health or 

well-being, the court recognized that other countries do not award such high normative status to 

environmental rights. Rather, the Court observed that many countries maintain comprehensive 

legislation regarding various aspects of environmental protection.18 

The Court went on to state: 

In comparative law there is much discussion of the environment. Many laws 

addressing the environment have been enacted in many countries ... sometimes the 

environment has been given a constitutional status. In a large number of constitutions, a 

constitutional right to have a suitable environment has been recognized.[19] 

This comparative law—whether in the international sphere or in the national 

sphere—is of great importance. Nonetheless, each country has its own problems. Even 

 

16 For additional information, see Ruth Levush, Israeli Law Guide, LLRX.COM (Nov. 24, 2007), 

http://www.llrx.com/features/israel3.htm. 

17 CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village, 49(4) Piske Din (P.D.) 221, p. 329 (1995). 

18 HC 4128/02 Adam Teva VeDin v. Israel’s Prime Minister, available at The State of Israel, The Judicial Authority 

website (in Hebrew), http://elyon1.court.gov.il/files/02/280/041/A16/02041280.a16.pdf (last visited Mar. 8, 2010). 

19 Id. p. 514. 

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The Impact of Foreign Law on Domestic Judgments: Israel 

if the basic considerations are similar, the balance between them reflects the uniqueness 

of every society and what characterizes its legal arrangements. Indeed, this is the power 

and these are the limits of comparative law. Its power lies in extending the 

interpretational horizon and field of vision. Its power lies in guiding the interpreter with 

regard to the normative potential inherent in the legal system. Its limits lie in the 

uniqueness of every legal system, its institutions, the ideology that characterizes it and 

the manner in which it deals with the individual and society. Indeed, comparative law is 

like an experienced friend. It is desirable to hear his good advice, but this should not 

replace one’s own decision.[20] 

After reviewing Israeli law on the issue, Barak determined that the provisions challenged in the 

petition did not violate any constitutional rights under Israeli law, including the constitutional 

right to human dignity and liberty.21 The Court held, however, that there had not been a 

sufficient passage of time to allow for the preparation of guidelines for reviewing environmental 

impact under the contested provisions, and that the deadline for preparation of the guidelines 

must be extended in specific cases where such extension is clearly needed.22 

B. Immigration, Unification of Families, and Public Security 

A leading decision on the constitutionality of temporary legislation exemplifies the significant 

usage of comparative law by Israeli courts in constitutional interpretation. The legislation at 

issue restricted residents of the West Bank and Gaza between the ages of fourteen and thirty-five 

(for men) or twenty-five (for women) from relocating into Israeli territory based on marriage to 

Israeli citizens.23 

The decision in this very sensitive case was a few hundred pages long, and was rendered by an 

extended bench of eleven justices. In addition to citing Israeli legislation, 183 Israeli court 

decisions, and two Jewish law sources, the justices cited foreign court decisions from the 

following countries: 

 United States–30 

 Australia–1 

 Canadian–9 

 England–6 

 

20 Id. pp. 515-16. 

21 Basic Law: Human Dignity and Freedom, Sefer HaHukim (Official Gazette, hereafter S.H.) No. 1391, p. 150 

(5752- 1992). See also the Knesset (Israel’s Parliament) website, http://www.knesset.gov.il/laws 

/special/eng/basic3_eng.htm (last visited Mar. 8, 2010). 

22 HC 4128/02 Adam Teva VeDin v. Israel’s Prime Minister. 

23 HCJ 7052/03, Adalah v. Minister of Interior, available at The State of Israel: The Judicial Authority website (in 

English), http://elyon1.court.gov.il/files_eng/03/520/070/a47/03070520.a47.pdf (last visited Mar. 11, 2010). 

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The Impact of Foreign Law on Domestic Judgments: Israel 

 European Court of Human Rights–6 

 Ireland–1 

 South Africa–3 

The challenged legislation had been enacted during the height of a wave of terror attacks within 

Israel’s borders, some perpetrated by Palestinian residents of these territories in the second 

intifada (uprising) commencing in September 2000. In response to the intensity of these attacks 

the Knesset (Israeli Parliament) enacted legislation in the form of the Citizenship and Entry into 

Israel Law (Temporary Provision), 5763-2003.24 The law was initially valid for one year, and 

was extended several times. The Court observed: 

Because some of the terror attacks were perpetrated with the assistance of 

persons who were originally Palestinians living in the occupied territories and had 

received permission to live in Israel within the framework of family reunifications, the 

government decided in 2002 to stop giving permits to Palestinians from the occupied 

territories to live in Israel.[25] 

The constitutionality of the legislation was questioned in thirty-three petitions submitted by both 

individuals and human rights organizations. The united petitions requested the Supreme Court, 

sitting as a High Court of Justice, to consider whether the blanket prohibition of family 

reunification (with Palestinians of certain ages) violated constitutional rights, and if so, whether 

the violation of those rights complied with the conditions of the limitations clause in the Basic 

Law: Human Dignity and Liberty,26 and was therefore constitutional. Prior to the blanket 

prohibition in the law, applications of Palestinians to live in Israel were considered on an 

individual basis, with a view to whether the applicant presented a risk to the security and safety 

of the Israeli public. An extended bench of eleven justices, by a majority of six to five, denied 

the petitions. 

A minority opinion by Justice Barak included a review of legal arrangements in foreign 

countries, in the European Union, and under international law to support a conclusion that the 

right to family life is anchored in the right to dignity, which is guaranteed under Israel’s Basic 

Law: Human Dignity and Liberty. The six justices of the majority rejected this conclusion. 

While agreeing that comparative law has great significance in both national and international 

spheres, Justice Cheshin cautioned that in the instant matter comparative law must be used in a 

sensitive and careful way. In his opinion, Israel, similar to other countries around the world, does 

not recognize an individual constitutional right to have foreign members of a person’s family 

immigrate into the country. He stated: 

The attitude of each state to immigration arrangements—including immigration 

arrangements by virtue of the right to marry and to family life—originates not only in the 

 

24 Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003, S.H. No. 1901, p. 544. 

25 HCJ 7052/03, Adalah v. Minister of Interior, summary notes. 

26 Basic Law: Human Dignity and Liberty, S.H. No. 1391 (5752-1992). 

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The Impact of Foreign Law on Domestic Judgments: Israel 

legal system and its characteristics in each different place but also, mainly, in the reality 

with which the state is required to contend. It is therefore not surprising that the 

countries of the world have adopted and continue to adopt, each for itself, arrangements 

that are suited to its needs from time to time, and moreover they tend to change from time 

to time the immigration arrangements prevailing in them according to the reality—a 

changing reality—with which the state is required to contend. See the remarks that we 

cited above ... with regard to the position prevailing in the United States and changes in 

immigration arrangements in that country[.][27]

 

In rejecting Justice Barak’s analogy to the laws of other countries, Justice Cheshin noted that 

none of the referenced countries ever contended with a reality similar to that with which Israel 

was contending. The Justice stated that there existed “a time of armed conflict — a time of 

quasi-war,”28 between Israel and the Palestinian Authority and the Hamas organization that 

controlled it. Justice Cheshin concluded that the analogy to the laws of other countries was 

wrong, due to the existence of the state of armed conflict and the general hostile attitude of the 

population in the territory of the Palestinian Authority. He asked, “Is there any other country 

that is being asked to allow in its territory the establishment of a family unit in which one of its 

members is an enemy national?”29 

It is interesting to note that in this case both the majority and minority opinions of the court cited 

international law to support their opposing positions. While the minority cited international 

human rights law to support the view that human rights include the right to family reunification, 

the majority cited the international law of armed conflict to support the position that enemy 

nationals do not have a right to relocate into the territory of a state during armed conflict, even 

for the purpose of marriage, based on considerations of public and state security.30 In the 

absence of domestic legislation, international law does not form part of Israeli domestic law and 

references to it in this case, similarly to those references to foreign law, were made merely for 

the purpose of analogy and not for implementation per se. 

VI. Concluding Remarks 

Comparative law is heavily used by Israeli judges. Decisions of the Israeli Supreme Court are 

especially indicative of such use. An American scholar has opined “that it (the Court) is the 

most important comparative constitutional law institute of the world.”31 

Having inherited the British stare decisis system of respecting domestic court decisions, 

combined with the historical legal influences of Ottoman, Continental European, and English 

law, Israel seems to be naturally receptive to the use of comparative law in domestic decisions. 

 

27 HCJ 7052/03, Adalah v. Minister of Interior. 

28 Id. para. 73. 

29 Id. 

30 Id. para. 71. 

31 Alexander Somek, Deadweight of Formulae: What Might Have Been the Second Germanization of American 

Equal Protection Review, 1 U. PA. J. CONST. L. 284 (Fall 1998). 

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The Impact of Foreign Law on Domestic Judgments: Israel 

The Law Library of Congress 56

 

This background, together with the diverse origins of judges and jurists in the early days of the 

State’s independence, may explain the Court’s openness towards comparative law.32 

The current ability of the Court to retrieve and analyze foreign law from numerous foreign 

countries is said to partly “stem from the Court’s practice of employing clerks from all over the 

world, who do the research work on their country of origin.”33 The Supreme Court of Israel 

actively recruits foreign clerks. The Court’s website explains: 

Unlike many common law systems that have a long, rich, and plentiful 

jurisprudence from which to draw upon, the State of Israel, a relatively young country, 

has a comparatively small body of jurisprudence. Thus, the Israeli Supreme Court often 

looks to American and Commonwealth precedent, as well as European countries, for 

inspiration in rendering its decisions. As a result, Justices of the Israeli Supreme Court 

solicit individuals trained in the American and Commonwealth legal tradition, as well as 

European traditions, to work as Foreign Clerks.[34]

 

The Israeli law doctrines discussed above have enabled the Court to encourage the consideration 

of foreign law. 

32 For further information on the Israeli legal system and the impact of foreign law on the system in general, see

Ruth Levush, The Reception of Legal Systems- Implantation and Destiny, in LA RECEPTION DES SYSTEMS 

JURIDIQUES: IMPLANTATION ET DESTIN 411 (Michel Doucet & Jacques Vanderlinden eds., Buxelles 1994). 

33 Somek, supra note 31. 

34 Foreign Clerkships with the Supreme Court of Israel, THE STATE OF ISRAEL: THE JUDICIAL AUTHORITY,

http://elyon1.court.gov.il/eng/Clerking_opportunities/frameset.html (in English) (last visited Mar. 16, 2010). 
Mexico 

Gustavo Guerra 

Senior Foreign Law Specialist 

Mexico is formed by thirty-one states and a Federal District, best known as Mexico City. Every 

state and the Federal District have their own judicial procedure laws. This report covers federal 

law only. 

Article 12 of Mexico’s Federal Civil Code provides that foreign law may be applied in Mexico 

as long as Mexican law specifically provides for its application.1

 However, cases adjudicated by 

Mexican courts by applying foreign law could not be located. It should be noted that a Mexican 

jurist recently reported the following: 

Although Mexican judges are legally empowered to apply foreign law in 

Mexican proceedings, and no formal or informal survey has been conducted since 1988 

to determine the number of substantive cases that have been resolved on the basis of 

foreign law, empirical data suggests that the number of these cases is close to zero. In an 

informal and preliminary survey conducted with judges and court secretaries in the six 

Mexican states bordering the United States (in addition to Mexico City), no cases of any 

Mexican court resolving a given case based on American law or any other foreign law 

were reported.[2]

 

 

 

1

 Código Civil Federal [Federal Civil Code], as amended, Diario Oficial de la Federación, May 26, July 14, & Aug. 

3 and 31, 1928, available at Mexico’s House of Representatives website, http://www.diputados.gob.mx/ 

LeyesBiblio/pdf/2.pdf. 

2

 Jorge A. Vargas, Mexican Law in California and Texas Courts and the (Lack of) Application of Foreign Law in 

Mexican Courts, II (No. 1) Mexican L. Rev. 45, 69 (New Series, July-Dec. 2009), available at the Legal Research 

Institute website of Mexico’s National Autonomous University (UNAM), http://info8.juridicas.unam.mx/ 

pdf/mlawrns/cont/3/arc/arc2.pdf. 

The Law Library of Congress 57
New Zealand 

Kelly Buchanan 

Foreign Law Specialist 

SUMMARY New Zealand courts have a strong tradition of citing foreign judgments in their decisions. 

Historically, this was due to the application of the common law and statutes of England. 

In recent decades however, various factors have led to a broader range of jurisdictions 

being cited. While laws now have a uniquely New Zealand character, judges remain 

willing to look outward to consider developments in other countries. This approach is 

evident in cases involving the application of the New Zealand Bill of Rights Act 1990, and 

will likely have an ongoing impact. 

I. Introduction 

New Zealand’s colonial heritage has greatly influenced the development of the country’s legal 

system and constitutional arrangements. Further, the common law system that New Zealand 

inherited from England places a strong emphasis on the doctrine of precedent and the need to cite 

authorities to ensure the legitimacy of court decisions.1

 Historically, New Zealand courts have 

looked to the courts of England for sources of precedents in order to apply established principles 

and rules. Over time, as local statutes were developed, international law and different 

international relationships increased in prominence, and as the issues coming before the courts 

became more complex, the courts have expanded the range of countries from which foreign 

cases are examined, particularly looking to Australia, Canada, and the United States, as well as 

to international tribunals. 

This report discusses the impact of foreign case law as evidenced in the citation practices of New 

Zealand’s higher courts, including in the context of interpreting and applying the New Zealand 

Bill of Rights Act 1990. The possible reasons for New Zealand judges being demonstrably 

willing to consider and cite foreign cases are examined, along with the views of some judges and 

academics regarding this approach.2

 

II. Constitutional Arrangements 

After the establishment of colonial rule in New Zealand, as a result of the signing of the Treaty 

of Waitangi between the British Crown and Maori tribes in 1840, the laws of England became 

directly applicable in New Zealand.3

 Imperial legislation established the New Zealand 

Parliament and other branches of government. Although New Zealand achieved legal and 

 

1

 Russell Smyth, Judicial Citations; An Empirical Study of Citation Practice in the New Zealand Court of Appeal, 

31(4) VUW L. REV. 847, 848 (2000), available at http://www.nzlii.org/nz/journals/VUWLawRw/2000/ 41.html. 

2

 The application of foreign statute law is beyond the scope of this paper. 

3

 MORAG MCDOWELL & DUNCAN WEBB, THE NEW ZEALAND LEGAL SYSTEM 100 (2d ed. 1998). The English Laws 

Acts 1854, 1858, and 1908 provided that all laws in existence in England on January 14, 1840, were to be applied to 

New Zealand. 

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The Impact of Foreign Law on Domestic Judgments: New Zealand 

constitutional independence in the mid-twentieth century,4 a number of the current constitutional 

arrangements and procedures are based on various rules and principles that were developed in 

England.5

 

There are three branches of government in New Zealand: Parliament, the executive branch, and 

the judiciary. The Queen is the head of state. The cornerstone of the legal system is that 

parliament “has supreme lawmaking powers that cannot be challenged.”6 Judicial independence 

is also emphasized, and judges do not have political allegiances and are not influenced by party 

politics.7

 

New Zealand retained the Judicial Committee of the Privy Council in England as its final appeal 

court until 2004, when the Supreme Court of New Zealand was established.8

 The court 

hierarchy now consists of the district courts, the High Court, the Court of Appeal, and finally the 

Supreme Court. 

New Zealand does not have a single written constitution. The country’s constitutional 

arrangements are derived from a variety of written and unwritten sources, including particular 

statutes from Britain and New Zealand, conventions and customs of government, fundamental 

legal principles, court decisions, and the Treaty of Waitangi.9

 The New Zealand Bill of Rights 

Act 1990 confirms the protection of fundamental rights in statutory form. While it is not 

entrenched or “supreme law” in the sense of overriding other statutes, the Bill of Rights Act is 

seen as forming part of the constitutional arrangements.10 

A concise and authoritative statement of New Zealand’s constitutional arrangements can be 

found in the introduction to the Cabinet Manual.11 In this document, in addition to the sources 

identified above, New Zealand’s international obligations and international processes more 

generally are identified as both an influence on constitutional change and as a limit on the 

exercise of decision making authority.12 Such an outward-looking perspective is clearly evident 

in the impact of foreign law on the judgments of New Zealand’s courts. 

 

4 Id. at 106-09. 

5 Id. at 110-11. 

6 Id. at 4, 112. 

7 Id. at 4, 114. 

8

 The Supreme Court was established by the Supreme Court Act 2003, available at http://www.legislation. 

govt.nz/act/public/2003/0053/latest/DLM214028.html. The legislation entered into force on January 1, 2004. 

9

 MCDOWELL & WEBB, supra note 3, at 110, 127-45. See also Rt. Hon. Sir Kenneth Keith, On the Constitution of 

New Zealand: An Introduction to the Foundations of the Current Form of Government, CABINET MANUAL 2008,

available at http://www.cabinetmanual.cabinetoffice.govt.nz/introduction. 

10 Keith, supra note 9. See also Rt. Hon. Sir Kenneth Keith, Concerning Change: the Adoption and Implementation 

of the New Zealand Bill of Rights Act 1990, 31(4) VUW L. REV. 721 (2000), available at 

http://www.nzlii.org/nz/journals/VUWLawRw/2000/37.html. Keith notes that there was no public support for the 

legislation to be entrenched, primarily because this would give power to a “non-elected, non-accountable, and nonrepresentative judiciary.” 

11 Keith, supra note 9. 

12 Id. 

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The Impact of Foreign Law on Domestic Judgments: New Zealand 

III. Empirical Analysis of Foreign Law Citations 

Three empirical studies of the citation practices of New Zealand’s courts have been undertaken 

in the past decade.13 The results of these studies show that the influence of British law has 

receded, and that this recession has been accompanied by a significant rise in citations to the 

previous decisions of domestic courts. In addition, an increasing number of court decisions now 

refer to the judgments of courts in other jurisdictions, particularly Canada, Australia, and the 

United States. This trend is particularly evident in cases related to the New Zealand Bill of 

Rights Act 1990. 

A. Smyth Study of the Citation Practices of the Court of Appeal (2000)14 

The Smyth study provided a snapshot of citation practices by analyzing 300 of the most recent 

Court of Appeal decisions reported in the New Zealand Law Reports as of December 1999. The 

study recorded citations of foreign and domestic judgments, decisions of international courts, and 

references to secondary material. Russell Smyth, the author of the study, has conducted similar 

analyses of Australian courts.15 

The Smyth study found that the highest number of references made by the New Zealand Court of 

Appeal were to its own previous decisions, and this accounted for 33% of case citations. In fact, 

if Privy Council decisions were included (the Privy Council was the highest court at the time of 

the study), over 50% of citations made were to the Court’s own decisions or the decisions of 

other courts in the same judicial hierarchy.16 

Decisions of English courts (other than the Privy Council) made up 23% of citations, or a total of 

2,839 citations in the 300 judgments.17 A total of 1,878 citations (18% of all case citations) were 

to courts in countries other than New Zealand and England.18 Of those citations, nearly 95% 

were to courts in Australia (45%), Canada (31%), and the United States (16%).19 

 

13 Smyth, supra note 1; Rt. Hon. Justice Sir Ivor Richardson, Trends in Judgment Writing in the New Zealand Court 

of Appeal, in LEGAL METHODS IN NEW ZEALAND 261(Rick Bigwood, ed. (2001)); James Allan et al., The Citation of 

Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?, 11(3) OTAGO L. REV. 

433 (2007). 

14 Smyth, supra note 1. 

15 Id.; Ingrid Neilson & Russell Smyth, One Hundred Years of Citation of Authority on the Supreme Court of New 

South Wales, 7 UNSW L.J. 189 (2008), available at http://www.austlii.edu.au /au/journals/UNSWLawJl/2008/7.pdf. 

16 Smyth, supra note 13, at 861, 875-76. 

17 Id. 

18 Id. The study’s author noted that this was much higher than comparable figures for Australia, and also discusses 

comparisons with the citation practices of Canadian and United States courts. Id. at 863-68. 

19 Id. at 866, 878. 

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The Smyth study also recorded citations to four international courts, with the most cited being the 

European Court of Human Rights with forty-seven citations (2.5% of all case citations).20 

B. Richardson Study of Citation Trends in the Court of Appeal (2001)21

The Richardson study examined all of the decisions of the Court of Appeal made during the 

years 1960, 1980, 1990, 1997, and 2000. This study included those cases that had not been 

reported in the New Zealand Law Reports.22 

The Richardson study showed that there has been a significant increase in the number of 

decisions rendered by the Court of Appeal. Between 1960 and 2000 there was a 500% increase 

in the caseload of the court.23 The study suggested that a range of factors contributed to this 

change, including the growth of New Zealand’s population, higher crime rates, and, most 

plausibly, increased economic activity and greater litigiousness among New Zealanders.24 

Another finding was that the proportion of citations to English decisions had reduced 

considerably. In 1960, citations of English cases accounted for 69% of cases cited. By 1990 that 

figure had fallen to 35%, and in 2000 it was just 17%, which represented a 75% decrease since 

1960.25 This decline was accompanied by a significant rise in citations to the decisions of New 

Zealand courts—from 26% of citations in 1960, to 51% in 1990, and 74% in 2000. 

Also noted in the Richardson study was the trend in the citation of Australian decisions. While 

there was an increase in the proportion of decisions cited between 1960 and 1990 (from 4% to 

12%), there was a drop down to 5% in 2000.26 It was suggested that this may have partially been 

due to the difficulty in dealing with the decisions of the High Court of Australia, which 

frequently contain multiple judgments.27 

The Richardson study also indicated an increase in the number of citations made to Canadian 

and United States cases over the years, as well as the emergence of citations to the European 

Court of Justice and the European Court of Human Rights.28 

 

20 Id. Other courts in this category were the Human Rights Commission (twenty-seven citations or 1.44%), 

Commission of the European Community (three citations or 0.16%), and the International Court of Justice (three 

citations or 0.16%). 

21 Richardson, supra note 13. 

22 Id. at 261. In explaining this approach and comparing it to the Smyth study, Justice Richardson noted that the 

proportion of cases actually reported in the New Zealand Law Reports has fluctuated over the years. 

23 Id. at 262. 

24 Id. 

25 Id. at 264. 

26 Id. at 265. 

27 Id. 

28 Id. 

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The Impact of Foreign Law on Domestic Judgments: New Zealand 

C. Allan Study of the Citation of Foreign Judgments in New Zealand Bill of Rights Act 

1990 Cases (2007)29

The Allan study examined reported cases relating to the New Zealand Bill of Rights Act 1990 

from the date of enactment of the legislation to April 2006.30 The study showed that the 

decisions of Canadian courts were cited far more often than those from any other jurisdiction, 

having been cited in eighty-four New Zealand cases.31 The next highest number of citations was 

to United States judgments (cited in forty-six cases).32 Third, but with much fewer citations, was 

the United Kingdom.33 The authors did note that the United Kingdom Human Rights Act 1998 

only came into force in England in 2000.34 

Similar to the Smyth study, the Allan study showed that the European Court of Human Rights 

was the most cited international tribunal (cited in forty-four cases).35 About one-third as many 

citations were to the United Nations Human Rights Committee.36 The authors suggested that the 

European Court’s decisions were far more sophisticated than those of the Human Rights 

Committee, which “often simply recite facts and submissions.”37 

The results of the Allan study indicated that New Zealand judges are “most likely to cite the 

decisions of overseas courts when considering criminal procedure rights, and by a noticeable 

margin.”38 This may be because criminal procedure rights are the most litigated rights. Outside 

of the context of criminal procedure, “freedom of expression gets the international treatment 

more than any other rights and freedoms,” again by a considerable margin.39 There were also 

cases involving particular rights where foreign law was not cited at all, including electoral rights, 

freedom of movement, and the rights of minorities. These were also the least litigated rights. In 

addition, some rights not explicitly set out in the New Zealand Bill of Rights Act 1990 arose in 

litigation and led to foreign law citations by judges, particularly the right to privacy and the right 

(or remedy) to have evidence excluded.40 

 

29 Allan et al., supra note 13. 

30 The outcomes of this study were referred to in a New York Times article. Adam Liptak, U.S. Court is Now 

Guiding Fewer Nations, N.Y. TIMES, Sept. 17, 2008, available at http://www.nytimes.com/2008 

/09/18/us/18legal.html?_r=4&hp=&adxnnl=1&oref=slogin&pagewanted=all&adxnnlx=1221833346-

HD0Iphcv9NPt5FE8Ahl/Jw. 

31 Allan et al., supra note 13, at 437, 455. 

32 Id. 

33 Id. Judgments relating to the Human Rights Act 1998 were only cited in two New Zealand cases, but there were 

citations to European Convention cases in the United Kingdom in eleven New Zealand cases. 

34 Id. at 438, 455. There were also a small number of citations to German, Indian, and Irish cases. 

35 Id. 

36 Id. 

37 Id. at 438-39. 

38 Id. at 436. 

39 Id. This was followed by freedom from discrimination. 

40 Id. 

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The Impact of Foreign Law on Domestic Judgments: New Zealand 

The Allan study also examined whether or not the overseas rights cases cited supported the 

eventual conclusions of New Zealand judges. The figures showed that twenty-eight of the 

seventy-five cases that referred to overseas authorities included a citation that did not support the 

New Zealand court’s final decision.41 The authors also observed, however, that in Court of 

Appeal and Supreme Court decisions, the right at issue is extended “more than four times more 

often than it is given an interpretation narrower than it had before the court’s decision.”42 

IV. Reasons for the Influence of Foreign Law 

Hierarchical citations play a clear and important role in the common law system that New 

Zealand inherited from England.43 Historical factors, including the fact that the Privy Council 

was the highest court in New Zealand’s judicial hierarchy, meant that throughout the nineteenth 

and most of the twentieth century New Zealand courts relied heavily on English jurisprudence.44 

In more recent decades there have been a number of sociocultural, economic, legal, and political 

changes that have resulted in a shift in the influences on New Zealand’s courts to include a 

broader range of jurisdictions. 

A. Receding Influence of England 

England’s influence, not only on the law but more generally on New Zealand society, receded as 

England began looking increasingly to Europe on economic and trade issues, and immigration 

from England to New Zealand decreased.45 One commentator notes that any attempt to keep the 

common law of the Commonwealth uniform “has been abandoned.”46 A change of mindset or 

focus in New Zealand can also be seen, including a stronger sense of nationhood, independence, 

and increased economic and diplomatic ties with other countries.47 

Perhaps more significant, particularly in explaining the substantial rise in citations to New 

Zealand cases, is the vast increase in the number of domestic statutes.48 The interpretation and 

application of legislation, rather than the common law inherited from England, now dominate the 

work of the courts, meaning that precedents are now “more likely to be used to show prior 

interpretation of statutes and subordinate legislation.”49 

 

41 Id. at 440, 457. 

42 Id. at 441, 458-67. 

43 Smyth, supra note 1, at 861-62. 

44 See Hon. Justice Robert Fisher, New Zealand Legal Method: Influences and Consequences, in LEGAL METHOD IN 

NEW ZEALAND 25, 27, 40 (Rick Bigwood ed., 2001). 

45 Id. at 41. 

46 Id. 

47 Richardson, supra note 13, at 264. 

48 Fisher, supra note 44, at 43; see also Richardson, supra note 13, at 266. 

49 Id. 

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B. Increased Complexity of Cases 

As demonstrated in the Richardson study discussed above, there has been a huge growth in 

litigation in New Zealand.50 The novelty, complexity, and level of controversy of the issues 

coming before the courts have also increased, including a larger number of public law cases.51 

This may be an outcome of the significant deregulation and privatization processes undertaken 

by the government (particularly during the 1980s), a tendency for Parliament to be less 

prescriptive in statutes, and the creation of broad statutory discretions.52 Judges are now 

frequently asked to “decide issues by drawing broad inferences as to legislative intent, reasoning 

from first principles, and evaluating policy considerations.”53 

With regard to rights litigation, the authors of the Allan study observed that “New Zealand courts 

are likely to cite overseas authority for a very practical reason: even seventeen years after 

passage of the New Zealand Bill of Rights Act, there remains a dearth of New Zealand authority 

in regard to many of the rights and freedoms.”54 Given the common law system’s focus on the 

use of precedents to ensure the legitimacy of decisions, this factor means that judges will often 

seek to rely on the decisions of foreign courts in interpreting different rights, rather than starting 

from scratch.55 

C. Shared Affinities with Other Countries 

In addition to the growth of citations to New Zealand cases, the declining proportion of citations 

to English cases has been accompanied by a “remarkable growth in resort to other 

jurisdictions.”56 The greatest number of citations have been to courts in countries with which 

New Zealand can be seen as having a shared affinity. This may be due to their common law 

legal systems, language,57 similar social and historical experiences (in particular Australia, and 

to a lesser extent Canada), and geographic proximity and strong economic relations (Australia).58 

 

50 See also id. at 38-39. 

51 Id. at 39-40. 

52 Id. Fisher suggests that reasons for these changes include the difficulty for politicians to “sell detailed solutions to 

a population fragmented by divergent cultures and income,” as well as the introduction of a Mixed Member 

Proportional electoral system in 1996, which has seen governments needing to accommodate the diverse demands of 

their coalition partners. 

53 Id. at 40. 

54 Allan et al., supra note 13, at 445. 

55 Id. 

56 Fisher, supra note 44, at 44. 

57 See Allan et al., supra note 13, at 438, stating that “Although many countries have bills of rights, New Zealand 

judges are likely to be far more receptive to overseas authority from jurisdictions with which they are comfortable, 

among other things because of shared affinities. For example, decisions from English speaking courts are likely to 

be cited more than decisions from non-English speaking courts, and decisions from common law legal systems are 

more likely to be cited than those from civilian systems, and so on.” 

58 See Smyth, supra note 1, at 866. See also Richardson, supra note 13, at 265, and Fisher, supra note 44, at 41. 

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The Impact of Foreign Law on Domestic Judgments: New Zealand 

Further, the international reputation of different courts and judges,59 and the number, scope, and 

depth of their body of precedents (particularly in the United States),60 may impact on the 

willingness of New Zealand judges to cite cases from particular jurisdictions. 

It is particularly noteworthy that the New Zealand Bill of Rights Act 1990 was explicitly 

modeled on the Canadian Charter of Rights and Freedoms.61 This fact goes a long way in 

explaining the “ransack” of Canadian reports for their Charter jurisprudence.62 The historical 

experiences of the United States and Europe with bills of rights or other human rights laws can 

also be seen as an explanation for New Zealand courts “drawing deeply” from these countries in 

interpreting and applying individual rights and freedoms.63 

D. Impact of International Law 

The need to look beyond English and New Zealand decisions has been “reinforced by the 

growing influence of international treaties, covenants, and declarations to which New Zealand 

adheres.”64 It was noted in 2001 that “as many as one-third of the 600 public Acts on the New 

Zealand statute book give effect in one way or another to international standards or 

obligations.”65 In addition, the Court of Appeal has accepted the proposition that “the Court 

should strive to interpret legislation consistently with the treaty obligations of New Zealand.”66 

In the context of the New Zealand Bill of Rights Act 1990, although there is no statement or 

requirement regarding the use of foreign law to assist with its interpretation, the statute explicitly 

refers to the International Covenant on Civil and Political Rights (ICCPR).67 This fact has 

“frequently been referred to in order to justify interpretations of the New Zealand Bill of Rights 

Act which are consistent with the ICCPR and with jurisprudence of the Human Rights 

 

59 Smyth, supra note 1, at 868. See also Allan et al., supra note 13, at 445, stating that the “use of overseas 

precedents can be especially helpful if the relevant overseas jurisdiction is thought to have a good reputation for 

human rights.” 

60 Allan et al., supra note 13, at 437, states that the number of citations to United States judgments in New Zealand 

Bill of Rights cases “is hardly surprising given the extensive United States history with judicial review.” 

61 Fisher, supra note 44, at 42. See generally Keith, supra note 9, for a discussion of the background to and 

development of the New Zealand Bill of Rights Act 1990. 

62 Smyth, supra note 1, at 867 (quoting Lord Cooke of Thorndon, The Dream of an International Common Law, in

COURTS OF JURISDICTION: THE MASON COURT IN AUSTRALIA 138, 142-43 (Cheryl Saunders ed., 1996)). See also

Allan et al., supra note 13, at 444-45. 

63 Id. Lord Cooke stated: “In the five years since the enactment of the New Zealand Bill of Rights Act 1990 we 

have tended to ransack the Canadian reports for their Charter jurisprudence, while drawing deeply also from the 

European and United States as well.” 

64 Fisher, supra note 44, at 42. 

65 Rt. Hon. Sir Kenneth Keith, Sources of Law, Especially in Statutory Interpretation, with Suggestions about 

Distinctiveness, in LEGAL METHOD IN NEW ZEALAND, supra note 44. 

66 Puli’uvea v. Removal Review Authority, (1996) 2 H.R.N.Z. 510, 516-17. 

67 The long title of the New Zealand Bill of Rights Act 1990 states that it is an Act “To affirm New Zealand’s 

commitment to the International Covenant on Civil and Political Rights.” 

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The Impact of Foreign Law on Domestic Judgments: New Zealand 

Committee and other relevant international jurisprudence.”68 Significantly, the Court of Appeal 

has observed that “[w]hether a decision of the Human Rights Committee is absolutely binding in 

interpreting the New Zealand Bill of Rights Act may be debatable, but at least it must be of 

considerable persuasive authority.”69 

The clearest example of the desire of New Zealand judges to “keep pace” with international 

developments is Baigent’s Case.70 In this case the Court of Appeal found in favor of awarding 

compensation for breaches of the New Zealand Bill of Rights Act 1990, despite this remedy not 

being provided for in the legislation. After reviewing a range of overseas cases, the then 

President of the Court stated: “In other jurisdictions compensation is a standard remedy for 

human rights violations. There is no reason for New Zealand jurisprudence to lag behind.”71 

The current Chief Justice has also emphasized the impact of international law and the wish to 

ensure the legitimacy of the rights-related decisions of New Zealand’s courts at an international 

level. She has stated that: 

The accession to the Optional Protocols means that our legal system is now 

scrutinized for compliance with the international covenants and that the decisions of our 

courts are taken on an international world stage. These influences cannot be underestimated. We are only at the beginning of the process. It is in the area of human rights 

that the standards of the international community have the greatest impact.[72]

 

E. Increased Sharing of Information 

Access to decisions (from New Zealand and overseas courts) has increased significantly, 

particularly as a result of more case reporting and publication of cases on the internet. This is an 

important development in terms of judges and lawyers being able to reference a range of cases in 

their reasoning.73 In addition, academics and commentators have become increasingly 

influential in New Zealand, and often discuss judgments in the context of other disciplines and 

international developments.74 

 

68 Andrew S. Butler & Petra Butler, The Judicial Use of International Human Rights Law in New Zealand, 29(1) 

VUW L. REV. 173, 177 (1999), available at http://www.nzlii.org/nz/journals/VUWLawRw/1999/15.html. See also 

Melissa A. Waters, Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights 

Treaties, 107 COLUM. L. REV. 628 (2007), for a discussion of New Zealand’s approach to using the ICCPR in 

interpreting both statutes and in developing the common law. See also Keith, supra note 65, at 89-93. 

69 R. v. Goodwin (No. 2), [1990-1992] 3 N.Z.B.O.R.R. 314, 321 (C.A.). 

70 Simpson v. Attorney General (Baigent’s Case), [1994] 3 N.Z.L.R. 667 (C.A.). 

71 Id. at 676. 

72 Rt. Hon. Dame Sian Elias, Chief Justice of New Zealand, 4th Annual Ethel Benjamin Commemorative Address at 

Dunedin, Diversity and the Law (May 18, 2000), transcript available at http://www.lawfoundation. 

org.nz/publications. 

73 See Allan et al., supra note 13, at 443. See also Fisher, supra note 44, at 43. 

74 See Fisher, supra note 44, at 42-43. 

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Changes in legal education and the expectations of the judicial role may also be factors in judges 

becoming “internationalists.”75 A number of influential judges, as well as lawyers and 

academics, have obtained their postgraduate education overseas, particularly in the United 

States.76 They also frequently participate in international conferences, publish articles in 

international journals, and form relationships with legal professionals from many different 

countries.77 Judges can be seen as seeking to promote and expand the influence of their 

decisions internationally, as well as looking at developments in other jurisdictions that they are 

increasingly familiar with.78 In general, there is “an increased receptiveness to new ideas on the 

part of lawyers as well as judges.”79 

V. Criticism and Future Prospects of Foreign Law Citations 

The authors of the Allan study were concerned that there are “no rules (hard and fast ones or 

otherwise) about when overseas precedents should be cited, which overseas precedents should be 

cited, or what weight they should be accorded.”80 The authors considered that the findings of the 

study showed that “rights-based internationalism” is not overly constraining on judges and is 

largely ad hoc.81 The authors concluded that the data supports their view that “overseas 

authority is not used in a principled or systematic way by New Zealand courts in interpreting the 

New Zealand Bill of Rights Act. 82 ” 

 

The authors of the Allan study opined that the ability of judges to pick and choose which foreign 

judgments to cite may potentially present a problem in that the “process of interpretation 

inevitably remakes the constitution in the likeness favored by the judges.”83 Judges are “tempted 

to draw on the most expansive interpretations of judges from other jurisdictions, while seldom 

being tempted to rely on the more restrictive interpretations on offer.”84 Further, the authors felt 

that the reliance on Canadian precedents in rights cases may be a concern to some people given 

that Canadian judges are seen as “the most judicially activist in the common law world—the 

75 Allan et al., supra note 13, at 443. 

76 Richardson, supra note 13, at 265, noting that four of the seven Court of Appeal judges on the bench in 2001, as 

well as the Chief Justice, had studied at United States law schools. 

77 Allan et al., supra note 13, at 443-44. The contact between judges from different jurisdictions has been 

emphasized by Hon. Justice Susan Glazebrook of the Court of Appeal, who stated that “I think it vital to take the 

time to look outwards periodically to the world beyond these shores as it broadens the perspective and lessens the 

tendency towards insularity.” Hon. Justice Susan Glazebrook, Court of Appeal, 8th Annual Ethel Benjamin 

Commemorative Address at Dunedin, Looking Outward, (Apr. 5, 2004), transcript available at http://www.courts 

ofnz.govt.nz/speechpapers. 

78 Allan et al., supra note 13, at 443-44. 

79 Richardson, supra note 13, at 265. 

80 Allan et al., supra note 13, at 441. 

81 Id. 

82 Id. at 445. 

83 Id. at 434 (quoting Hogg and Bushell, The Charter Dialogue Between Courts and Legislatures, 35 OSGOODE 

HALL L. J. 75, 77 (1997)). 

84 Id. at 442. 

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The Impact of Foreign Law on Domestic Judgments: New Zealand 

The Law Library of Congress 68

 

most willing to second-guess the decisions of the elected legislatures.”85 The study 

recommended that New Zealand judges be more skeptical of overseas authorities than they 

currently appear to be.86 

The level of discretion that New Zealand judges have in citing foreign and international 

precedents has also been identified by a former New Zealand Supreme Court and Court of 

Appeal judge, Rt. Hon. Sir Kenneth Keith, who stated that “New Zealand Courts have not 

elaborated tight criteria and statements of purpose for the use of ... international material.”87 

However, current and former judges tend to view the approach in a more positive light, with the 

“eclecticism” of New Zealand’s legal method seen as having saved it “from the relative 

insularity of major jurisdictions like the United States and the United Kingdom.”88 Keith also 

observes that, although the New Zealand “character” of the law has been enhanced by the large 

number of local statutes, “that does not have to lead to a cloying inwardness.”89 

In any case, the tradition of New Zealand courts borrowing heavily from other jurisdictions, 

which has resulted from a range of both historical and modern influences, is unlikely to be scaled 

back.90 Various comments from judges, both in decisions and extra-judicially, indicate that the 

willingness to cite foreign law is becoming ingrained in New Zealand’s legal system and, 

together with international law, will have a continuing impact. For example, the current Chief 

Justice has stated: 

I am not sure that the international trend and the domestic adoption of statements 

of human rights can now be reversed. Increasingly, the response of domestic legal 

institutions and laws is shaped by international covenants and institutions. This is an 

aspect of the shrinking of the world which has already had profound implications for all 

aspects of New Zealand life.[91]

 

85 Id. at 437. 

86 Id. at 446. 

87 Keith, supra note 65, at 98-99. 

88 Fisher, supra note 44, at 44, 72. 

89 Keith, supra note 65, at 98. 

90 See id. at 98-99. See also Fisher, supra note 44, at 44. 

91 Elias, supra note 72. 
Nicaragua 

Norma C. Gutiérrez 

Senior Foreign Law Specialist 

SUMMARY Although foreign law may be used as the last resort when there is a gap in domestic 

legislation and other statutory sources of law are also unavailable, it appears that foreign 

law has not been used to adjudicate cases in Nicaragua. It is common, however, for the 

courts to cite analyses of foreign law made by prestigious scholars to support or enhance 

the court’s opinion issued in a particular case. 

I. Legal System and the Law 

Nicaragua is a nation that belongs to the civil law tradition and as such, legislation is the 

principal source of law. 

Under Article 18 of the Organic Law of the Judicial Branch1 and Article 443 of the Code of 

Civil Procedure,2 judges and tribunals may not excuse themselves from adjudicating a case 

brought by the parties. Both provisions list the formal sources of law that are applicable when, 

in the opinion of the judge or the tribunal, there is no legislation applicable to the particular case, 

or if they have doubts concerning the scope and/or application of the legislation. The lists are 

not identical and a harmonized reading of them is required. 

 

According to a treatise by Nicaraguan legal scholar and Supreme Court Justice Iván Escobar 

Fornos,3

 when there is a gap in the legislation a judge or tribunal will decide a case applying a 

harmonized interpretation of Article 18 of the Organic Law of the Judicial Branch and Article 

443 of the Code of Civil Procedure, taking into account the chronological order of their entry 

into force, in the following order of preference: 

1. Judges and tribunals must apply jurisprudence (rules derived from decisions of the Supreme 

Court). 

2. If this is not possible, they must apply general principles of law or natural reason. 

3. Where neither applicable legislation, jurisprudence, nor general principles of law or natural 

reason are available, judges and tribunals must follow the law applicable to analogous 

cases. 

1

 Ley No. 260, 7 July 1998, Ley Orgánica del Poder Judicial, art. 18, LA GACETA [L.G.], 23 July 1998, available at

the database of the Nicaraguan National Assembly, http://legislacion.asamblea.gob.ni/normaweb. 

nsf/($All)/12E78B7532199BD0062570B3005D9A1D?OpenDocument. 

2

 CÓDIGO DE PROCEDIMIENTO CIVIL DE LA REPÚBLICA DE NICARAGUA art. 443 (Editorial Jurídica, Managua, 2000). 

3

 I IVÁN ESCOBAR FORNOS, ESTUDIOS JURÍDICOS 331 (Editorial Hispamer, Managua, 2007). 

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The Impact of Foreign Law on Domestic Judgments: Nicaragua 

4. If this is not available, they must apply customs when their application is allowed by the 

Civil Code.4

 

5. If none of the above sources is available, they must follow the opinion of authoritative legal 

scholars. 

6. Lastly, they must apply foreign law applicable to analogous cases.5

 

II. Court Decisions 

Although courts are permitted to apply foreign law as a last resort, no court decisions based on 

foreign law were found. 

In a case heard by the Supreme Court of Nicaragua in 1961,6 the Court considered but rejected 

the petitioner’s argument that the lower court erred by failing to apply the legal doctrine offered 

by Ambroise Colin and Henry Capitant, two renowned French scholars, and a relevant opinion 

issued by the French Cour de Cassation.

7

 The Court determined that application of the French 

legal doctrine and court opinion were unnecessary because the case being heard could be decided 

by applying provisions of the Civil Code of Nicaragua.8 The Court stated that Colin and 

Capitant’s commentaries referred to French legislation from which the applicable Nicaraguan 

legislation in this case was not derived. The Court added that the option of applying foreign law 

offered by Article 443 of the Code of Civil Procedure should be applied as a last resort.9 

Although the Nicaraguan Supreme Court’s decision was based on provisions of the Civil Code of 

Nicaragua, the Court provided several lengthy quotations to a treatise by a renowned Spanish 

scholar commenting on various articles of the Civil Code of Spain that related to the points of 

law dealt with in the case, in support of its interpretation of the applicable Nicaraguan 

legislation.10 

 

4

 CÓDIGO CIVIL DE LA REPÚBLICA DE NICARAGUA, vols. I & II, arts. 1496, 2480, 2502, 2860, 2899, 2903, 2920, 

2958, 3139 & 3446 (Impresiones La Universal, Managua, 2000-2001). Under articles 2-5 of the Commercial Code, 

mercantile customs have a broader application when there is a gap in the law. CÓDIGO DE COMERCIO arts. 2-5 

(Grupo Editorial Acento, Managua, 2007). Customs are not applied in criminal matters. Under article 34, 

section 11 of the Constitution, any defendant has the right not to be tried or sentenced for an act or omission that, at 

the time of committing it, had not been previously specified expressly and unequivocally as punishable and 

sanctioned with a penalty not provided by law. Constitución Política de la República de Nicaragua art. 34, § 11 

(Grupo Editoria Acento, Managua, 2007). See also ESCOBAR FORNOS, supra note 3, at 334-35 (discussing the 

application of customs under both the Civil and Commercial Codes). 

5

 ESCOBAR FORNOS, supra note 3, at 331. 

6

 Sentencia de las 12:00 p.m., 28 February 1961, Boletín Judicial [Supreme Court] pp. 20315-19. 

7 Id. at 20318. The Cour de Cassation is the highest court of ordinary jurisdiction in France. 

8 Id. 

9 Id. at 20319. 

10 Id. at 20318-19. 

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In Nicaragua it is common to cite commentaries by well-known, prestigious legal scholars in 

court decisions,11 and those scholars are usually foreigners. It is equally common to see 

references to foreign law in the commentary of such scholars. 

III. Concluding Remarks 

The Nicaraguan Code of Civil Procedure allows the court to apply foreign law as the last resort 

among a list of formal sources of law when there is no applicable legislation in a particular case. 

This limited authority to use foreign law was reaffirmed by a Supreme Court decision. The 

Court’s decisions often cite the legal opinions of foreign law scholars, who may include 

references to foreign law in their commentaries. 

11 ESCOBAR FORNOS, supra note 3, at 340. 
South Africa 

Hanibal Goitom 

Foreign Law Specialist 

SUMMARY The South African Constitution allows South African courts to consider foreign law in 

adjudicating human rights issues. Courts have unfettered freedom to consider the laws of 

any jurisdiction, to the extent and as often as they deem fit. Foreign law is often used by 

the courts, particularly the Constitutional Court, in deliberations on issues germane to the 

Bill of Rights provisions in the Constitution. 

I. Introduction 

The use of foreign law by South African courts is specifically sanctioned by the South African 

Constitution. This concept was first introduced in the South African Interim Constitution1

 in 

1993, and was retained in the 1996 Constitution,2

 which is currently in force. 

Although South African courts are said to have utilized foreign law often, information 

concerning the specific numbers regarding the frequency of use, extent of use, and the influence 

that foreign law has had on South African courts has been difficult to locate. This report briefly 

describes the mandate on the use of foreign law (comparative interpretation) contained in the 

South African Constitution, the reasons foreign law is used by South African courts, and 

difficulties associated with the use of foreign law. 

II. Comparative Interpretation 

South African law authorizes its courts to consider foreign law in interpreting the Bill of Rights 

section of the South African Constitution. The 1996 Constitution states: 

When interpreting the Bill of Rights, a court, tribunal or forum must: 

 promote the values that underlie an open and democratic society based on 

human dignity, equality and freedom; 

 must consider international law; and, 

 may consider foreign law.[3]

 

 

1

 S. AFR. (Interim) CONST. 1993, § 35(1). 

2

 S. AFR. CONST. 1996, § 39(1). 

3

 S. AFR. CONST. 1996, § 39(1). The language of the mandate for the use of foreign law was slightly different in the 

1993 Interim Constitution. The 1993 Constitution provided that in interpreting the chapter on Fundamental Rights, 

a court “... may have regard to comparable foreign case law.” S. AFR. (Interim) CONST. 1993, § 35(1). This, 

however, did not prevent courts from referring to sources outside of court cases. DU PLESSIS & CORDER,

UNDERSTANDING SOUTH AFRICA’S TRANSITIONAL BILL OF RIGHTS 121 (Juta & Co., Ltd. 1994). 

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The consideration of foreign law is permissive. The court is required however, to consider 

international law. In addition, the consideration of international or foreign law by a South 

African court does not make such law binding in South Africa.4

 In State v. Makwanyane,

5

 the 

South African Constitutional Court stated “we can derive assistance from public international 

law and foreign case law, but we are in no way bound to follow it.” 

The influence of foreign law may extend beyond the interpretation of the Bills of Rights 

provisions of the Constitution.6 The provision that authorizes the consideration of foreign law in 

interpreting the Bill of Rights also provides that “when interpreting any legislation, and when 

developing the common law or customary law,” one “must promote the spirit, purpose and 

objects of the Bill of Rights.”7

 A strict following of this provision virtually guarantees that 

jurisprudence will be developed that will be used to address legal issues that are not directly 

germane to the Bill of Rights. 

A number of reasons have been cited to justify the authorization to consider foreign law by South 

African Courts. One reason given was that South Africa was not considered to have had 

sufficient local precedents “to resolve jurisprudential issues precipitated by the justiciability of 

provisions of the Bill of Rights.”8

 Additionally, South Africa’s recent past as an apartheid state 

made it especially difficult to locate domestic jurisprudence to support the interpretation of the 

new Constitution.9

 The authorization was also justified by the fact that the Bill of Rights was 

heavily influenced by the constitutions of other countries, including those of Canada, Germany, 

and Namibia.10 For example, the concept of a two-stage process of adjudicating violations of 

rights was Canadian, while that of the prominence of human dignity as a fundamental right was 

German.11 It has also been argued that comparative interpretation in general was an inevitable 

phenomenon due to the “internationalization of human rights issues.”12 It has even been 

suggested that one reason for the authorization was political in nature, and was an attempt on the 

part of South Africa to seek international credibility after years of isolation by showing its 

commitment to international standards of human rights.13 

 

4

 An international instrument ratified by South Africa, or one that has acquired the status of international customary 

law would of course be binding whether or not considered by a South African Court for purposes of comparative 

interpretation. 

5

 1995 (6) BCLR 694. 

6

 GEORGE DEVENISH, A COMMENTARY ON THE SOUTH AFRICAN BILL OF RIGHTS 620 (Butterworths, 1999). 

7

 S. AFR. CONST. 1996, § 39(2). 

8

 GEORGE DEVENISH, CONSTITUTIONAL LAW IN THE LAW OF SOUTH AFRICA 1, 202 (LexisNexis Butterworths, 2d 

ed. 2004). 

9

 Andrea Lollini, Legal Argumentation Based on Foreign Law: An Example from Case Law of the South African 

Constitutional Court, 3 UTRECHT L. REV. 60, 65 (2007). 

10 J.R. de Ville, Constitutional and Statutory Interpretation 241 (Interdoc Consultants Pty Ltd. 2000). 

11 Sydney Kentridge, Comparative Law in Constitutional Adjudication, The South African Experience in JUDICIAL 

RECOURSE TO FOREIGN LAW: A NEW SOURCE OF INSPIRATION? (Basil Markesinis & Jörg Fedtke eds., UCL Press 

2006). 

12 DEVENISH, supra note 6, at 620. 

13 Lollini, supra note 9. 

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The South African Constitution leaves the decision as to the manner in which a comparative 

interpretation is to be conducted to the courts. No criterion is provided instructing the court on 

how to select relevant foreign laws for consideration or establishing to what extent foreign laws 

may be used in deliberations and decisions. With such an open-ended authority, the use of 

foreign law could be tricky. Possible issues that could arise from the unfettered use of foreign 

law by South African Courts have been summarized as: 

[a] fixation on legal rules and concepts and a neglect of legal culture and context; 

considering foreign legal rules and judgments in isolation and failing to situate them 

within a larger legal system and tradition; using foreign law as authority for a certain 

standpoint rather than as a basis for comparison and a source of constitutional arguments; 

failing to appreciate that presuppositions and prejudices deeply embedded within our own 

legal culture may distort our understanding of foreign legal materials; uncritically 

accepting the distinction between public and private law; and restricting the sample of 

jurisdictions to be surveyed to those which favor a particular standpoint.[14] 

Since its establishment in 1994, the South African Constitutional Court is said to have 

extensively engaged in comparative interpretation.15 The Court made attempts to address the 

risks associated with the unfettered permission to engage in comparative interpretation. For 

instance, in Shabalala v. The Attorney-General of Tvl16 the court stated: 

[The mandate to consider foreign law] should be exercised with circumspection, 

since the resort to case law of foreign jurisdictions by persons not fully acquainted with 

the practice in these jurisdictions or with the concepts and techniques of foreign system 

entails a real risk that a foreign legal position would be misinterpreted. It is necessary to 

take into account the accumulated experience of what does and does not work 

satisfactorily in the administration of justice in South Africa. 

The challenges faced by the court in engaging in comparative interpretation are seen in the case 

of Makwanyne,

17 one of the first cases adjudicated by the Constitutional Court following its 

establishment. At issue was the constitutionality of capital punishment – whether it was cruel 

and degrading treatment. The court in deliberating on this matter consulted a wide range of 

foreign laws, including the laws of Canada, Germany, Hungary, India, Tanzania, the United 

Kingdom, the United States and Zimbabwe.18 The Court attempted to define the limited role that 

foreign laws could play and the caution with which comparative interpretation should be 

approached. It stated that although comparative “Bill of Rights” jurisprudence, in the absence of 

“indigenous jurisprudence,” is important and that foreign authorities are valuable to the extent 

that they show the arguments for and against the death penalty and how other jurisdictions have 

 

14 Henk Botha, Foreign Constitutional Law and the Courts: Reflections from South Africa (presented at the 

International Association of Law Schools Conference on Constitutional Law, Washington, DC, Sept. 11-14, 2009), 

available at http://www.ialsnet.org/meetings/constit/papers/BothaHenk%28SouthAfrica%29.pdf. 

15 Lollini, supra note 9, at 65. 

16 1995 (12) BCLR 1593. 

17 1995 (6) BCLR 694. 

18 State v. Makwanyne, 1995 (6) BCLR at vi-xiii. 

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resolved the issue, foreign jurisprudence “will not necessarily offer a safe guide to the 

interpretation of [the Bill of Rights chapter of the South African Constitution].”19 The 

jurisdictions that were considered provided a wide range of at times conflicting solutions on the 

matter. For instance, constitutions of the United States and India expressly permitted the death 

penalty, while the constitutions of Germany and Namibia prohibited it.20 With the exception of 

Hungary, all jurisdictions that outlawed the death penalty did so through their legislatures.21 

Within the United States, which provided the largest number of cases,22 the Court found a 

contradiction in the way in which the death penalty issue was handled. The Court stated that 

United States jurisprudence has not yet solved the dilemma created by the constitutional 

prohibition against cruel and unusual punishment and the acceptance of capital punishment by 

the majority of the United States Supreme Court as constitutional.23 After completing its review 

the court found the death penalty to be incompatible with “the recognition of the dignity of and 

worth of the individual which underlay the [1993 Interim] Constitution.”24 In the absence of 

clear guidance on what is and is not appropriate in conducting comparative interpretation, judges 

may be influenced by a certain foreign law viewpoint beyond what was intended by the drafters 

of the South African Constitution. 

III. Conclusion 

Two methods of citing of foreign law are said to have emerged from the way in which the South 

African Constitutional Court has conducted comparative interpretation. These are: 

 When judges cite foreign law to support a certain interpretation of law (which has been 

called the “they also think this way abroad” approach); and 

 When foreign law informs a particular interpretation for a constitutional provision (which has 

been called the “considering they think this way abroad” approach).25 

While the use of the first approach, which serves to reinforce a particular interpretation, appears 

reasonable, the use of the latter approach is considered inappropriate.26 

The shortcomings of comparative interpretation aside, however, there appears to be a general 

consensus in South Africa regarding the need to use foreign law in interpreting the South African 

 

19 Id. 

20 Kentridge, supra note 11, at 329-30. 

21 Id. 

22 State v. Makwanyne, 1995 (6) BCLR at xii-xiii. 

23 Id. at 694. 

24 Kentridge, supra note 11, at 331. 

25 Lollini, supra note 9, at 66. 

26 Id. One example provided was a fairly recent Constitutional Court case, Laugh It Off Promotion v. South African 

Breweries International, 2005 (8) BCLR 743. The Court in this case was criticized for failing to make “clear 

comparison” and for simply importing foreign rulings into the South African pool of interpretation without analysis 

regarding the relevance of the foreign cases it considered. Id. See also BOTHA, supra note 14, at 5. 

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Constitution.27 As it has elegantly been put, for courts that do not have the benefit of dipping 

into 200-year-old jurisprudence, abandoning comparative interpretation is not an option and that 

when “carefully used, [comparative interpretation] is at least informative, is often enriching, and 

at best can be inspiring.”28 

27 Id. See also State v. Makwanyne, 1995 (6) BCLR at 686. 

28 Kentridge, supra note 11, at 333.