The Invisible Factors behind Using Comparative Law in Constitutional Adjudication
The Invisible Factors behind Using Comparative Law in Constitutional Adjudication

Summary/Abstract: Courts dealing with constitutional issues are often using comparative law when fulfilling their functions: they refer to foreign law or at least consult comparative material. The scope and form of the use of comparative law is different at the different courts and there are severe criticisms about the lack of methodology. These phenomena be explained by the judges’ and courts’ different aims when using comparative law, and by the different factors that influence them when deciding in which cases, in which forms, and which jurisdictions’ law they consult or refer to. However, most of these aims and factors are invisible and therefore unveiling them demands complex research methods. The understanding of these aims and factors can help scholars to prepare methodological standpoints for judges to support them in avoiding misuse of comparative law and ‘cherrypicking’, and through this strengthening the legitimacy of the courts.

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