St. Thomas Law Review
First Page
513
Document Type
Article
Abstract
This article argues that comparative law can legitimately be used as a standard tool in the context of legal interpretation. Part I establishes a terminological framework for the analysis undertaken in this article. Part II examines existing attempts at justifying the use of comparative arguments in legal interpretation. It is shown that the approaches in question can only legitimize the use of comparative law in specific circumstances but fail to provide a general basis for the use of comparative reasoning. Part HI identifies possible objections to the legitimacy of comparative justification. To do so, it analyzes both the relevant literature and the pertaining decisions of the Supreme Court. Part IV makes use of Jfirgen Habermas' discourse theory to provide a general justification for comparative reasoning in the context of interpretation. Part V develops this justification in more detail and shows that this approach can avoid not only possible objections derived from discourse theory itself but also the general objections to comparative reasoning identified in Part 1I. Part VI summarizes the preceding parts.
Recommended Citation
Jens C. Dammann,
The Role of Comparative Law in Statutory and Constitutional Interpretation,
14
St. Thomas L. Rev.
513
(2002).
Available at:
https://scholarship.stu.edu/stlr/vol14/iss3/3