Comparative constitutional interpretation: critical approach and methodological framework

Authors

  • Alonso Freire Universidade Federal do Maranhão Universidade CEUMA

DOI:

https://doi.org/10.12957/publicum.2016.23767

Keywords:

Interpretation, Comparative Law, Fundamental Rights, Comparability

Abstract

This paper addresses the comparative constitutional interpretation problem, especially in fundamental rights cases. Firstly, it exposes of the debate on judicial use of foreign law. Then, it explains three kinds of use of foreign law: mandatory, advisable and voluntary uses. The purpose of the paper is to offer a normative justification for voluntary use. For this, it proposes two main arguments already offered by Jeremy Waldron, but in weaker forms. After the failures of these arguments being exposed, two main conclusions are drawn. First, the courts and judges of a country can benefit themselves not only of a legal consensus among nations but also of unique experiences from other countries. For this, comparability criteria are necessary. Second, the best advice is not to treat like cases alike in the world, but to treat comparable cases in a comparative way. Finally, it proposes a methodological framework for the comparability analysis in the judicial interpretation of constitutional rights.

Author Biography

Alonso Freire, Universidade Federal do Maranhão Universidade CEUMA

Chief of Justice Luís Roberto Barroso's Assistant, at Supremo Tribunal Federal. PhD in Public Law candidate at Universidade do Estado do Rio de Janeiro (UERJ) (2014-) and exchange program at Yale Law School (2015). Masters in Constitutional Law at Universidade Federal de Minas Gerais (UFMG) (2005), with finacial aid by Conselho Nacional de Desenvolvimento Científico e Tecnológico (CNPq). Professor at Universidade Federal do Maranhão (UFMA) and Professor and Researcher at UNICEUMA. Working area: Constitutional Law, with emphasis in Comparative Constitutional Law and Judicial Review. Research themes: Supreme Courts, Constitutional Courts, and Judicial Review of Constitutionality.

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Published

2016-07-19

How to Cite

Freire, A. (2016). Comparative constitutional interpretation: critical approach and methodological framework. Revista Publicum, 2(1), 45–73. https://doi.org/10.12957/publicum.2016.23767

Issue

Vol. 2 No. 1 (2016)

Section

Artigos Científicos

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