Arguing from foreign precedent in constitutional interpretation

In the 21st century, the role played by judges as protagonists of the global circulation of the law has become a true topos of legal studies. Scholars have focused on the emergence of a ‘global dialogue’ bringing judges around the world closer to each other. More often than in the past, courts in performing their adjudicatory functions find inspiration in foreign case law, engaging in a ‘conversation’ with other judges worldwide. This chapter explores the novelty, the extent, and the risks of this use by courts of foreign and comparative law, and concludes by addressing two related questions: whether judges are comparatists, and whether they should be. In doing so, this chapter focuses especially on the use of foreign case law in constitutional interpretation, considering also the contexts of democratic backsliding and abusive comparative borrowing.