Foreign Law in Constitutional Courts’ Decisions: A Comparison

By Andrea Lollini


The article investigates the structure of constitutional legal reasoning
based on foreign law in a comparative perspective. A selection of judgments
from different supreme and constitutional courts are analyzed, to gain a more
comprehensive understanding of how judges use materials from foreign homologous
jurisdictions. This study illustrates that two different models of legal
reasoning based on foreign law are emerging on a global level: the “hard”
mode and the “soft” mode.
The hard mode tends to transform foreign legal materials into rules that
are applicable to the domestic legal system. On the other hand, with the soft
mode, once judges have targeted relevant foreign cases, they tend to consider
the solutions thus yielded not compatible with the national constitutional
system. In this way, the soft mode transforms foreign judicial materials into
examples or hypothetical solutions for the judicial cases under scrutiny. The
article explores the advantages of this hermeneutic technique.