The normativity of judicial borrowings: A blind spot in judicial decision-making studies/ A normatividade dos emprestimos judiciais: um ponto cego nos estudos das decisoes juridicas.
| Autor | Neto, Joao Andrade |
-
Introduction
The transfer of elements among legal systems has gained ample space in the field of comparative law, and particularly in comparative constitutional law, which should come as no surprise. The sharing of constitutional experiences is an essential element of the arrangement that emerged after World War II, which authors call "post-war," (1) "global," (2) or "new" constitutionalism. (3) The first studies exclusively dedicated to the foreign influence of domestic law came out in the 1970s. (4) Constitutional borrowing, as the phenomenon is more often known, has been the subject of countless works since then. (5) Scholarship has reached a more or less consensual understanding that a country's constitution, from the process of drafting to its subsequent interpretation and application, is not built in isolation (6) Explanations for the phenomenon abound. Nevertheless, researchers have generally paid scant attention to the normative issues that judicial recourse to foreign legal material raises.
The present study shall cast light on these questions. But this essay is not concerned with constitutional borrowings in general. Rather, it examines a specific type: the judicial appropriation of foreign legal arguments that will be used in constitutional adjudication. Judicial borrowings put forward implicit "demands of justification [that] must be met," (7) whether the court that engaged in borrowing recognises it or not. To tackle the question of justification, a normative issue by definition, is the main purpose here.
The concept of normativity is as controversial as important to legal theory. (8) Without delving deep into the controversy, I posit that normative arguments (or conclusions connected to ought) cannot logically follow from empirical arguments (or statements connected to is). (9) I hope that most readers can agree with this premise. This separation between empirical and normative reasons is central to the argument developed below, for it correlates to the distinction between explanation and justification. A researcher who inquires whether a constitutional court can legitimately decide cases with recourse to foreign legal materials asks for legal justification. She asks whether it is legally permitted, prohibited, or commanded for judges to have recourse to comparative constitutional law. This question can only be answered from the perspective of a participant in the debate about what the law correctly understood commands, prohibits, or permits. (10) From this perspective, explanations for borrowing do not suffice.
Few works have actually focused on the normative aspects of constitutional borrowings, (11) such as the argumentative role they play in constitutional interpretation, (12) or the question of whether courts have legitimate reasons for incorporating foreign material in their decision-making. (13) The uncommonness of this type of inquiry is also noticeable in a field typically dedicated to normative studies: constitutional theory. (14) As a comparatist observed, 'normative constitutional theorists' have not dedicated much effort in examining "how the migration of constitutional ideas figures into their narratives." (15)
This essay aims at fulfilling this gap and is structured as follows. Part two introduces the expression 'judicial borrowing,' which will be used to term judicial reference to all types of legal material taken from foreign legal systems. Part three suggests some refinements to the methodology that legal comparatists have usually followed. These refinements respect the choice of a context--justification, explanation, or deliberation--, type of reasons--explanatory or justificatory--, and perspective--participant or observer. Part four separates judicial borrowings into voluntary or necessary, and argumentative or non-argumentative. Part five advances three normative attitudes constitutional courts may adopt towards foreign legal material: resistance, convergence, and engagement. Three constitutional courts, namely the U.S. Supreme Court, the Supremo Tribunal Federal (STF) of Brazil, and the Bundesverfassungsgericht (BVerfG) of Germany, are taken as paradigms. Part six explains why courts carry a special duty of justification when they have recourse to borrowing. Part seven advances the main reason against borrowing: the democratic objection. Finally, part eight classifies the reasons for borrowing into system-dependent and system-independent.
Importantly, it is beyond the scope of this essay to analyse the actual reasons that the three paradigmatic courts give for having recourse to foreign material. Nor is my intention to determine which of the three normative attitudes is correct--or more adequate. The objective of this study is limited in this sense. The argumentative issues it tackles are rather methodological than substantive. I demonstrate that the attitude a court has towards foreign legal material can be construed as a normative choice in which reasons for and against borrowings have to be considered. I do so in the hope that scholars and judges may use this argumentative scheme to assess the correctness of the practices they are faced with in actual legal systems. Furthermore, I submit that comparatists confronted with normative problems presented by judicial borrowings may benefit from the improved methods as devised here.
-
Terminological remarks
A dispute over the terminology that best depicts constitutional borrowings has dragged comparatists into a "battle of metaphors." (16) Scholars are far from arriving at a consensus about the correct term to use in reference to the incorporation of foreign elements in a national legal system. Bricolage, (17) cross fertilization, (18) entanglement, (19) influence, (20) inspiration, (21) irritation, (22) migration, (23) reception, (24) transmission, (25) and transplants (26) are examples of words that legal comparatists often use. The terminological struggle frequently "bears on perceptions of the kinds of questions it is relevant to ask," (27) although some terms are "at times deployed casually." (28) In fact, choosing a term matters, but all metaphors are somehow misleading, and none of them is fully satisfactory. Hence, this essay subscribes to the use of 'judicial borrowing' to refer to the recourse courts have to foreign legal material, but concedes that this choice is not free from objections.
Borrowing seemingly became the dominant metaphor in comparative constitutional law after the most influential journal on the matter set the seal on it. (29) But the term also creates some difficulties. Firstly, it suggests a voluntary, consented exchange between equals, each aware of lending or borrowing, respectively. (30) Secondly, it implies that the borrowed good can return without modifications to its original owner after a period of time. (31) Yet, judicial borrowings feature neither the consent nor the possibility of return that the common use of the word implies. (32) In any case, the alternatives that comparative constitutional theorists suggest are not free from serious objections either. And the danger of misinterpretation that these metaphors pose should not be exaggerated. (33) It is therefore advisable not to take this terminological choice too seriously.
In any case, a further remark on terminology is required. The phrase 'judicial borrowing' is sometimes narrowly used as a synonym for borrowing case law only. (34) And that is so because foreign courts' opinions on constitutional matters are the main source of material for judges who seek for inspiration when they find themselves before a hard case. (35) Nevertheless, in this study, 'judicial borrowing' designates reference to all kinds of alien sources: certainly the jurisprudence from other national or supranational courts, but also foreign constitutions, statutes, and legal scholarly writings. (36)
-
Methodological remarks
This essay is not a piece of research in the field of legal sociology, nor does it aim at contributing to the development of a legal realist theory on constitutional borrowings. (37) And this is not due to its subject, but rather because of the way the subject is approached. To ask whether a constitutional court can legitimately decide difficult cases by resort to foreign legal material is to quest after justification. One must advance justifying reasons to answer whether it is legally permitted, prohibited, or commanded for decision-makers to have recourse to comparative constitutional law. This is a normative question by nature and, as such, can only be answered by someone who puts himself within the legal system and tries to make sense of it from inside. Thus, the decisive factors, which in the end distinguish this research from sociological or realist ones, is that it focuses on the context of justification, inquiries into justifying reasons, and adopts the participant's perspective. These distinctions between contexts, types of reasons, and perspectives are presented below as refinements in the methodology of studies on judicial borrowings.
3.1 Context matters
Despite the vast literature on comparative constitutional law dedicated to borrowings, its methodology lacks some refinement. The first thing to consider is that, for analytical reasons, one may group the phenomena that are somehow involved with adjudication as pertaining to three contexts: justification, explanation, and deliberation. (38) Each context carries particularities that a constitutional comparatist should be aware of when approaching decision-making. The context of deliberation refers to the moment of decision properly speaking. That is when the judge "discovers" or "finds" the legal answer for the case she has before her. (39) The context of explanation refers to the factors that can explain how a judge came to a certain conclusion instead of another. Possible explanations range from the moral and religious beliefs of a decision-maker (40) to whether she...
Para continuar a ler
PEÇA SUA AVALIAÇÃOCOPYRIGHT GALE, Cengage Learning. All rights reserved.
