WE ARE SAID to be living in an era of “cosmopolitan constitutionalism”, in which lawyers and judges increasingly look abroad for guidance when interpreting their own constitutions.
The practice is controversial in the US, where Congress has denounced references to the law of European nations in cases concerning sexual equality and the death penalty.
A judge is said to use “foreign law” when he or she interprets domestic laws by reference to the law of other nations.
In an Irish context, it would include seeking guidance from US Supreme Court decisions say, but not from those of the European Court of Human Rights, whose authority Ireland has officially recognised.
Establishing why judges look abroad, how often they do it, and which sorts of countries they look to will reveal whether “cosmopolitan constitutionalism” is likely to benefit the development of Irish law.
Brian Flanagan is a lecturer in the department of law at NUI Maynooth. He and Sinéad Ahern, a PhD candidate in clinical psychology at UL, conducted an international survey of Supreme Court judges in which the judges were asked in confidence about their use of foreign law. The results will be published in the International Comparative Law Quarterly. Brian says that the department of law at NUI Maynooth will host a roundtable on the survey’s findings later this month to be led by Lord Alan Rodger of the UK Supreme Court and Mr Justice Nial Fennelly of the Irish Supreme Court. I look forward to learning more about the roundtable in due course (there doesn’t seem to be anything about it on the NUI Maynooth Law Department website) and I hope to be able to attend.