Foreign laws influence domestic jurisprudence in different ways, from use in domestic innovations to the enhancement of discussions on national matters. This report analyzes the influence (or lack thereof) of foreign laws on domestic jurisprudence in Argentina, Brazil, Canada, China, England and Wales, France, Germany, India, Israel, Mexico, New Zealand, Nicaragua, and South Africa.
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This study reviews approaches of judges to foreign judicial experience in thirteen countries and analyzes to what degree and for what purpose foreign rulings are cited. Countries surveyed can be divided into four categories: jurisdictions that use foreign laws as examples for judicial interpretation or preparation; jurisdictions that directly borrow from foreign law; jurisdictions where foreign law may be applied but no such application occurs; and countries that are familiar with foreign legal interpretation, concepts, and doctrines but do not mention foreign law directly.
In Argentina, a foreign decision or law is sometimes used to support a court’s interpretation of a domestic law, especially in cases regarding constitutional law and civil and commercial matters.
The Brazilian legal system is a civil law system, anchored by the enactment of codes and a large body of laws. The use of foreign law in domestic judgments is not binding, but the courts may refer to foreign laws to draw comparisons and conclusions.
Canada has the reputation of being a country in which foreign law has had a major impact on domestic judgments because English cases were followed by some Canadian courts until fairly recently. Currently, the jurisprudence of England, the United States, Commonwealth countries, and civil law countries influences decisions, but is not a major factor.
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 courts rarely cite to foreign law directly, some examples do exist where foreign influence (particularly borrowed concepts) exist within domestic judgments.
England and Wales
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.
French courts do not, as a rule, cite other court decisions or academic authority, with the exception of European Court of Human Rights case law. Courts are, however, informing themselves about foreign law, and references to such law can particularly be found in the preparatory material of the case or in studies prepared by institutions specializing in comparative law.
Germany’s Federal Constitutional Court occasionally uses foreign law comparisons when interpreting German constitutional law. In general, this use of the comparative method has not been questioned; however, dissenting opinions have at times disagreed with the relevance of the comparisons. In recent years, references to foreign laws have become more methodical and comprehensive.
Indian legislation is under the strong influence of British and American law, and judges often rely on foreign court rulings, especially in cases related to the protection of human rights, privacy, and the environment.
Israeli courts, particularly the Supreme Court, extensively cite foreign law for purposes of analyzing Israeli law, but the citation of foreign law is not binding.
Mexico’s Federal Civil Code provides that foreign law may be applied in Mexico; however, cases adjudicated by Mexican courts by applying foreign law could not be located.
New Zealand courts have a strong tradition of citing foreign judgments in their decisions. While historically this was due to the application of the English common law and statutes, courts are more recently citing a broader range of jurisdictions and judges remain willing to consider developments in other countries.
Although foreign law may be used in domestic legislation, 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.
The South African Constitution allows consideration of foreign law in adjudicating human rights issues, particularly the Bill of Rights provision of the Constitution. Courts have unfettered freedom to consider the laws of any jurisdiction, to the extent and as often as they deem fit.
Last Updated: 04/18/2014