For comparativists, South Africa is a gold mine. It offers comparative law scholars a rich repository of judgments that often develop in exquisite detail instructive comparisons between and among states.
Of course, this is not a matter of happenstance. South Africa’s constitutional text actually commands courts to compare in some instances and also invites courts to compare in others. In this respect, South Africa may be said to exhibit two modalities of comparison.
We may call the first one mandatory comparison: when interpreting the national bill of rights, a South African court must consider international law. This form of comparison requires the domestic court to compare how the domestic practice compares to the international standard set by the larger global community.
The second modality of comparison is discretionary comparison: when interpreting the national bill of rights, a South African court may consider foreign law. This permissive form of comparison invites, but does not require, the domestic court to compare how the domestic practice compares to the standard set by sister nations.
There also exists a third modality of comparison: prohibited comparison. This form of comparison–which expressly denies courts the power to compare–is perhaps best exhibited by a constitutional amendment recently proposed in the state of Arizona. Here is the text of the amendment:
In making judicial decisions, [courts] shall uphold and adhere to the law as provided in the United States Constitution, the Constitution of this State, the United States Code, federal regulations adopted pursuant to the United States Code, established common law, the laws of this State and rules adopted pursuant to the laws of this State and, if necessary, the laws of another State of the United States provided the law of the other State does not include international law. The courts shall not look to the legal precepts of other nations or cultures. The courts shall not consider international law. [italics added]
It is difficult to imagine rejecting comparisons more emphatically than this proposed amendment to Arizona’s Constitution. If this amendment passes, Arizona courts will be divested of the authority to consider either international or foreign law in reaching their judgments.
This third modality of the comparative enterprise–prohibited comparison–strikes me as unconventional and perhaps indeed unique in the western world. But I do not know for certain.
Do other national or subnational states expressly prohibit courts from relying on international or foreign law?