The subject about the use of foreign constitutional case law (of the issuing State) by national constitutional case law (or generally, of the receiving State) has been the focus of growing attention and concern in recent years in the world. It was with a few recent decisions handed down by the American Supreme Court, as in the case of Atkins v. Virginia (the death penalty for the mentally retarded), in the cases of Gratz v. Bollinger and Grutter v. Bollinger (affirmative actions for entry into university) and in the famous case of Lawrence v. Texas, that the general theme of the use of foreign elements began to take shape.
But it was the decision from the case of Roper v. Simmons (2005) that most instigated discussion, represented by the alert given by one of its critics, Justice Scalia: 'The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's thinking and ignore it otherwise is not reasoned decision making, but sophistry." This is not the only cause for concern: in Brazil, an important debate began at the Brazilian Supreme Federal Court on what it means to use foreign elements in constitutional decisions and the repercussion thereof for the national system in terms of a real (or veiled) "block upon constitutionality" (Motion No. 3388/ RR - the case of the demarcation of the Raposa Serra do Sol indigenous lands).
Within this ample discussion[1] is a theme called state transposition of judicial decisions (here, my analysis will be reduced to constitutional decisions), the so-called "transjudicialism", and also the theme of "cross-constitutionalism", albeit in its widest sense, which promotes a productive and conscious exchange of constitutional elements between supposedly self-sufficient states.
This is not strictly a novel end-of-decade concept. The fortification of the Judiciary, the creation of a "third giant"[2], to use the figure proposed by Cappelletti, a phenomenon that has been observed over the last few decades, has certainly been decisive in elevating the role of judicial decisions between States (treaties and conventions ratified internationally and, later, internalized in general by the parliaments of each country) and abandoning the classic proposal that privileged only normative bodies arising from the legislative tiers.
All the same, the discussion can be tackled from countless perspectives, having been approached from significantly discrete theoretical angles and, traditionally, by using the comparative method, in its widest possible sense. From the point of view of its jurisdictional use, foreign case law has been invoked in many countries[3], without great methodological concerns or concerns of legitimacy as to the use thereof; in most cases not even the pertinence of its use nor the degree of connection are the subject of clarification.
My objective here is to identify some of the presuppositions underlying both this discussion and the respective constitutional conceptions for accepting or rejecting such use, although within an ambit restricted to Constitutional Law[4]. The theme should be duly situated in constitutional theory. For such, one cannot forget the pioneering idea, conceived by Mauro Cappelletti (1993) and complemented by the acknowledged Mexican constitutionalist Hector Fix-Zamudio (1982), advocating that alongside the well-known constitutional jurisdiction of liberties there is still space for a "transnational constitutional jurisdiction".
In this respect, the first observation that deserves to be made is the one where it is impossible for Constitutional Courts to treat in identical fashion the use of foreign constitutional case law[5] and the use of case law arising from the International Courts, such as the European Court of Human Rights and the International Criminal Court. The different decisions handed down by these different courts cannot be conjugated and analyzed with one generic reference to "foreign case law" lato sensu (or to foreign elements). This also applies to decisions handed down by supranational courts[6], intended to evince common interests within a community, like the European Court of Justice, or even to decisions rendered by these courts in countries that are not within such supranational courts' jurisdictional reach. Furthermore, at issue here is not a phenomenon identical to the use of foreign constitutional case law in its proper and restricted sense[7].
The universal intention contained, in general, in the arguments constructed by international and
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community courts, together with the fact that such courts have a vocational perspective (toward the State in question and to serve as a precedent for other states), prevents parallels being drawn for the purposes of one sole treatment, within a unifying theory, of the decisions of national courts that are used by the national courts of other countries. The decisions handed down by national courts are applied exclusively within their territories; they are, furthermore, directed basically toward their citizens - be they nationals or residents - and are grounded in sovereignty. In other words, they are not intended for the "external ambit", nor for other contexts or realities, as is the case necessarily with international courts and, directly or indirectly, with community courts. The decisions of the national courts of a State do not need to have - and indeed do not have - any universal or extra-national intentions in the sense that such decisions are presented in terms that can be immediately adopted by other courts in other countries in light of their internal structures. In contrast, a multinational perspective "naturally" arises from international and supranational courts and from the reasons guiding such courts' decisions, since it is their purpose to have a binding influence over not one, but many countries. In some measure, these decisions have already been structured in such a way as to be easily repeated in many "distinct" national systems should the need arise.
One of the most latent difficulties in this sort of use is precisely de-contextualization, a phenomenon that is not seen when the subject is international or community courts.
Any reference, by a given Court, to foreign constitutional case law can occur in many ways and with a variety of purposes.
At the center of my analysis are the non-national elements, with the inevitable problem of their use and the study of their respective impact upon the constitutional decisions of a given State (in terms of legitimacy, national sovereignty, a reduced need to reinforce arguments, honesty in the grounds of an argument etc.).
However, as initially emphasized, only the foreign elements (non-national from the point of view of the users of such foreign elements, and national from the point of view of the issuing source) handed down by a single top court of the State (the Constitutional Court model) or by multiple top courts (the Supreme Court model with or without specialized sub-courts - as occurs in some countries in Latin America - and the respective decisions thereof, and not including the decisions of any other courts equally authorized to engage in constitutional debate)[8] make up the ambit of this study.
Indeed, I shall only analyze the use of this restricted universe of non-national decisions by the many top courts or by the monopolistic Constitutional Court of the "receiving"[9] country. However, any discussion (not included herein) concerning the use of these non-national elements by the different courts of the Judiciary of a State would, nevertheless, follow, in general terms, the models presented below, especially when a diffuse Constitutional court (fractionary departments of the common Courts doubling up as departments of the Constitutional Courts) is authorized in the State.
What I propose here is more openness to learning from concepts and solutions already generated by others and for other countries' legal regimes, especially as concerns the development of fundamental rights and democracy.
For this to happen, one must identify winning foreign experiences or legal engineering that affords the maximum protection to fundamental human rights. I also consider relevant negative cases that have generated repulsion, demotivation or the abandonment of certain decisions negatively qualified by the issuing State.
In the model I propose, which I call the suitable interlocution model, it is not enough to know the final solution adopted by the constitutional courts of other countries. We need to know the concrete case, if there was one, that gave rise to the case law and need to know, further, the reasons for this decision, the relevant elements, be they evident or hidden, regarding the context in which the decision was adopted, the constitutional model of the country and any influence upon the adopted solution it may have had and, especially, the interpretative formula used.
Accordingly, and in possession of the foreign decision, which will never be a pure and objective element, but rather a series of elements and conditions considered for the purposes of adopting a given solution that is now being re-analyzed, the Court should assess the compatibility of this material with the constitutional system of the country of that Court, the importance and the exactness of the reasoning and the constitutional possibility of that same solu-
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tion being repeated. The Court must emphasize all the elements of the reasons behind its decision and show their pertinence relative to the case and to the national solution.
Suppose, for example, that several decisions handed down by a foreign constitutional jurisdiction upholding the constitutional right to bear arms were identified as being decisions reiterated from American courts. Suppose, further, that in most of the reasons reference were made to a large part of American doctrine, as well as to American judicial precedent. Suppose, further still, that it became evident that the decision of the Supreme Court of the United States, in the same sense, were based exclusively on an originalist approach (grounded in the interpretation of the time of the drafting of the Constitution, at the end of the18[th] Century). Why should nations with recent constitutions that were provoked into handing down contemporary judicial decisions follow a justification that privileged practices and understandings from the end of the 18[th] century and beginning of the 19[th] century, especially if the application of the very originalism by these young nations reveals that the intention of these recent constitutional gatherings was precisely to banish this practice?
Any decisions taken by constitutional jurisdictions that fulfill a political rationality of their countries and that present a clearly visceral and unrepeatable preoccupation to resolve the theme, should be rejected once this process to verify incompatibilities has been performed.
Moreover, countries with distinct constitutional models, like monarchies and republics, parliamentarianism and presidentialism, federalism, regionalism and unitarism, should be more careful in their use of foreign elements only as concerns questions connected to these constitutional options.
Another difficulty lies in knowing about which foreign elements there can be dialogue, a difficulty presented by reason of the constellation of Constitutional Courts to which access is currently possible and, more than this, the number of decisions that can be consulted and debated.
It is also possible to glimpse other criteria that the court in question might use, such as consulting only the most controversial questions and taking part in dialogue relative thereto (or the least controversial, which demonstrates that this very theme is, in itself, equally controversial). The dialogue could also be reduced to more recent questions (which can also be an impeditive factor for States that are pioneers in tackling the theme, due to the non-existence of consultable decisions). It is equally possible to propose dialogue when the texts used as the basis for determining whether a dialogue is relevant are identical or very similar in their wording, lay-out and purpose, making any consultation of the interpreted rule more accessible than it would be in situations where there were greater semantic and teleological distancing.
Any one of these hypotheses, however, requires to be made abundantly clear, should any come to be adopted, and a certain temporal consistency regarding the criteria is expected from the Constitutional Courts. Even the criteria for the selection of jurisdictions and subjects can be arbitrary, transforming the selection into an opportunity to reinforce decisions already taken, thereby rendering the dialogue merely apparent. It is necessary always to show that it is not a question of seeking only those foreign constitutional elements that conform to the actual ("pre"-) conception of the Court; what is required, rather, is a certain "honest transparency".
Sunstein (2009: 7) suggests an approach to which he proposes an initial question: "if many people accepted a specific perception on some important theme, should not the Supreme Court and other courts, upon reflecting on the meaning of the Constitution, consult on this point of view?" For Sunstein, the debate about whether the Supreme Court of the United States should or should not use decisions from other nations has been transformed, to a large extent, into a discussion on the weight that should be given to the position of the "many minds" (Sunstein, 2009: 8, 189).
Sunstein defends that the use of foreign constitutional case law should be avoided except under very exceptional conditions, which he identifies. He proposes, therefore, that the United States, in general, should pay heed only to national sources. In his opinion, it sounds wrong to take into consideration the points of view of those who cannot vote in national elections and who were not elected by the people "in reference" (Sunstein, 2009: 190). Democracy, here, would appear to negate the legitimacy of developing fundamental rights.
Consultation of foreign constitutional case law could, however, occur (the observation is, above all, made for the Supreme Court of the United States) for the purposes of obtaining "relevant information" and, in this sense, foreign constitutional elements would be justified for questions of a factual nature.
Sunstein avails himself of the famous case, already cited in this study, of the death penalty for young offenders, the unconstitutionality of which
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was recognized by the Supreme Court of the United States grounded in foreign elements. If, for the purposes of maintaining or banishing the death penalty, the Supreme Court of the United States and the Law of that land deemed it important to understand the preventative effect of such death penalty on underage criminality, in the event that the decisions that led to the banishment of the death penalty in the other nations were based on other arguments (religious, moral or ideological arguments because they practiced a blind copy of these arguments and not because of the question of underage criminality), then the reference of what is practiced by the other countries would have no relevance for the purposes of American domestic decision-making (Sunstein, 2009: 192-3 and 205-6).
Sunstein's illustration is very didactic, especially since it employs the antithesis of a phatic question (central) and other questions (moral, religious, ideological); however, his equation is a simplistic reduction of the complexity of real situations. In the same example, and for the purposes of relevant interest (and, therefore, attention, to foreign constitutional case law), it could be argued that the crucial thing is knowing not the preventive effect (intimidatory) of the death penalty but rather its negative effect in the event of judicial error. Based on this new criterion, it would have to be ascertained how many countries forbade the death penalty because of a fear of judicial error and how many times, in the countries that have or had the death penalty, a grave judicial error in the matter of the death penalty for a minor was detected. Knowledge of the specific crimes for which the death penalty for minors is or was adopted in other countries could also be chosen as the crucial phatic question. Sunstein makes it seem like there is a simple counterposition, when, in reality, the choice of what is relevant for the purposes of deciding and knowing the experiences of others can be highly arbitrary.
Sunstein observes that foreign laws and judicial opinions can reflect only the choices of a reduced élite and have been made on the basis of strategic decisions and not of "honest" ones, in other words, without considering the data and information that were available (the factual question deserving of attention). In cases such as these, they should be simply ignored. The author adopts, further, the idea of constitutional relativism, "because texts and principles of interpretation might lead constitutional courts in South Africa, Germany and Hungary to results that make no sense for Canada, Brazil or the United States" (Sunstein, 2009: 196). He highlights the countries that deserve to be used as possible foreign references and does so based on the imposition of the feasible, given that it would not be possible - as effectively it is not - to consult all the countries of the world. For this reason, he mentions, for the purposes of the use of foreign constitutional case law, only the liberal democracies (Sunstein, 2009: 203-4).
In addition to opportunism, he alerts to the risk, also mentioned by countless other doctrinists, of miscomprehending the foreign material for the purposes of its domestic use: "the proper use of foreign material requires such exhaustive information about foreign norms that judges could not possibly use foreign material properly" (Sunstein, 2009: 206). However, notwithstanding the above, if foreign case law were indeed to be used, Sunstein understands that the best way of confronting the difficulties would be by developing a simplifying framework. Hence his suggestion that Justices i) examine the material from ten or twenty relevant countries; ii) pay due regard to the sentiments and judgments of the population and, accordingly, do not become interested in material from authoritarian states with dysfunctional institutions or ones with small populations, "confining themselves", therefore, "to only about twenty or thirty countries, including the Western liberal democracies plus countries such as India, Japan, Brazil, Israel and South Korea" (Sunstein, 2009: 207); iii) consult material translated into their own language and that is perfectly understood in the sphere of their language; iv) favor recent sources since they are more plausible and reflect current conditions and, v) be alert to positions taken by the state assumed in cascade (that deserve to be rejected since they do not represent an argument constructed independently).
This material is useful when i) it is relatively uniform; ii) it results from legislation or judicial decisions; iii) the problems to which such material relates are relatively similar and, iv) this material reflects independent judgments (Sunstein, 2009: 208). Next, a majority of five or more countries with uniform decisions on the theme should be obtained. There is no requirement to effectively analyze more than five countries in the event that the first five are already seen to present such uniform case law. This could mean that the existence of uniform foreign constitutional case law from more than fifteen countries - but in a different sense - would be simply ignored.
However, the use of the most recent case law, as suggested, may not always represent the best solution. To illustrate this point, one need only take an example from the case law of the United States itself, concerning the scope of the public's freedoms after the attacks on 11[th] September. It is worth remembering, to these ends, the typification of the crime of domestic terrorism in section 802 of the Patriot Act, covering any action dangerous to the life of its citizens that entails the breaching of the penal laws with the intention of influencing, by intimidation or coercion,
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the implementation of government policy. By reason of the extent of the typification, any type of activity or organization that protests against specific government projects can be the object of state investigation and may even have their actions deemed criminal violations (Cf. Hentoff, 2004: 13). The terrorist attack and the supposed vulnerability of the United States were used by a government clearly hostile to fundamental human rights in order to try to legitimize the adoption of measures restricting these rights, measures defended as the only solution to guarantee the essential security of the nation (cf. Cole, Dempsey, 2002: 147).
The Bush Administration, with the complacency of the bicentennial Constitutional Court of that country, broke the privacy of thousands of its citizens, interrogated people giving no sign that could have incriminated them and arrested principally immigrants without any justification in acts of reiterated and open violation of fundamental human rights (cf. Nancy Chang, 2002: 67). These acts served only to frighten those sectors of society discontented with the Bush government, mitigating the level of free political opposition.
In spite of truly representing a reduction in the protection of many fundamental human rights and limits upon the Executive and its departments, the courts and the Supreme Court itself ended up consenting, during the Bush era, to the provisions of the Patriot Act. So, what reasons could younger nations give for following this worthless case law instead of the earlier decisions of this very same Supreme Court of the United States? Or still further, why not simply disregard the United States as a suitable source since it is not possible to use its latest and most recent decisions and when very consistent and suitable material can be obtained on decisions that predate 11[th] September?
Lastly, Sunstein brings up the problem of the cost that an effective operation of interlocution entails. Sun-stein observes that the courts, should they opt for this model, will "have a lot of work to do" (Sunstein, 2009: 191), and the same is true for all the other agencies associated thereto. Therefore, in order to take cosmopolitanism seriously, the courts should, in each case, explain in detail the reasons that led them to reject the solutions of each of the countries that are at variance with the constitutional interpretation adopted by the Court or the reasons why they uphold them (Sunstein, 2009: 207).
It is not enough to argue the inoffensiveness (as Parrish does, 2007: 641) of the use of foreign con- stitutional case law. It is essential to justify it and to demonstrate its compatibility with prevailing constitutional law (cf. Parrish, 2007: 641). But it is also not enough to demonstrate that it is a practice that is compatible with constitutionalism. More than this, it seems to me to be essential to demonstrate the reason why it should be used. The proper way of tackling this problem depends, in large part, on the precise analysis of each constitutional law in force. Generally speaking, constitutions provide for the use of international treaties, including acceptance clauses that also, by and large, express the normative force of such international documents for domestic purposes. However, an express constitutional clause on the use of foreign constitutional case law (and even on international case law) is an exception[10].
A preliminary approach should, therefore, consider the practical viability of a Constitution forbidding, semantically, the use of foreign constitutional case law in the decisions rendered by that nation's Constitutional Courts. Although there is no similar provision in democratic constitutions, it is important to know the extent and the real efficacy of a clause that, hypothetically, had that very content. Strictly speaking, a clause of this kind could serve to mask over the use of foreign material, resulting in the system's forfeiting of honesty, transparency and posterior control.
It would be unreasonable to expect from the Judiciary and the constitutional courts - already amply susceptible to interconnectivity between national and foreign case law - a position of absolute contention, even with an express national reserve in their respective Constitutions. The theme transcends the textual limitations of a Constitution as a definitive expression of self-determination, especially, considering that the use of foreign case law has a strong interpretative trait, although it still lacks a methodology as to its consistent functional use.
The mere act of forbidding the domestic use of foreign case law could, furthermore, be interpreted as an implicit clause on sovereignty, which, as it happens, has been a constant invocation in American doctrine against the use of such decisions[11]. Above all, considered in this light, any clause should be interpreted as forbidding the use of foreign case law in a model of subordination, by which I mean the reverential use of foreign decisions and not as a definitive and absolute block thereupon.
At the other extreme are Constitutions that would expressly impose the use of foreign elements. A well-known example of a Constitution that contemplates express rules concerning this use is the South African Constitution[12] of 1996, which established in section 39, n. 1, indent c, that in the interpretation of
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the declaration of rights, the courts must consider foreign Law.
In Brazil, an express clause doesn't exist, except in the Labor Law, concerning labor rights, which allows the Labor courts and labor judges to use the comparative law in their decisions (art. 8, Brazilian Labor Law). But a Constitution cannot adopt an express clause and then, at the same time, end up suggesting, due to historic reasons, that consultation is allowed. This is what happens to constitutions drawn up by constitutors who privilege the constitutional model of another country when preparing their national Constitution. Foreign examples have been frequently used in contemporaneous constitutions. Even the Brazilian Constitution of 1988, currently in force, used foreign references and drew amply from the Portuguese Constitution (in 1937 the Polish Constitution was used). In fact, this national practice first started with the Brazilian Constitution of 1891, the structure and content of which reflected the American Constitution of 1787.
The use of foreign matrices in preparing national constitutions is not done with impunity, however, since later doctrine and case law are known to invoke this fact for the purposes of using equally foreign references.
Also, in the clause requiring that judicial decisions be duly grounded (and in the ample defense clause) lies a favorable argument, although not definitive, because the judges must justify their decisions and, in so doing, must be "honest in revealing their sources and establishing the reasons behind their decisions. Transparency is important." (Parrbh, 2007: 674). Accordingly, if international sources are used to reach an adopted solution, the established reasoning must be amply presented, which would not only allow the thinking of the Court to be known, but also provide grounds for appeal, if relevant. In synthesis, whether there is express provision or not, one can cogitate the valid use of foreign constitutional case law pursuant to a model of interlocution grounded in the maximum protection of fundamental human rights.
A specific model of interlocution should necessarily be favoured where achieving, promoting and increasing fundamental human rights[13] is concerned. Opting for an open approach to non-national constitutional case law should be widely pursued by all nations and not just by a specific group of countries where the issue of fundamental human rights is concerned.
Young democracies that are still in the process of consolidating both public freedoms and a social State should pay greater attention to the case law of countries that have already reached the democratic and social level expressed in their constitutions. Even so, it is necessary that such use be not just out of mere reverence but rather by means of a model of interlocution (critical assimilation), because consolidated democracies may also render constitutional decisions that are inconsistent with their quest to afford greater protection to fundamental human rights[14].
Foreign constitutional case law should be used to promote an increase in the level of protection of fundamental human rights provided it is compatible with the dogmatic commands of the national Constitution. In such a context, any starting point will always be the similarity between the majority of the constitutional texts of Western nations, especially as concerns the democratic and social objectives that these states must uphold.
For example, if Portugal and Spain contemplate, in their respective constitutions, the right to privacy, and if these countries have been allowing such right to privacy to mature significantly for decades, then recent States (like Eastern European countries), upon consultation of such case law, will find an enormous source of help when consolidating this model into a level of excellence. However, uncritical assimilation is, even here, inadequate and, to a certain degree, unviable (because of the very differences there might be between the understandings held by the various foreign constitutional jurisdictions, notwithstanding any semantic or even teleological connections).
One of the grounds, therefore, lies in the very grammar (textual and extra-textual) that is common to fundamental human rights. I am obviously not talking about language, which can be very different between countries. I am, rather, talking about a "thematic community", which, over time, has been - and is still being - consolidated in many international and supra-national documents and which, in fact, represents a common idea (of which Peter Häberle has long spoken) held at a time before these actual international documents were drawn up. In reality, these non-national documents are symbols of this possibility of communication, of dialogue, between different nations as concerns fundamental human rights. And not just a possibility, but also a desire. Hence the fact that contemporaneous constitutions show great proximity as concerns their so-called introductory and dogmatic parts (concerning the declaration of rights) and, to a certain degree, their organic parts (in other words, concerning the structure of the State).
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But textual proximity is not a determining factor nor does it offer definitive reasons for using foreign constitutional case law. Indeed, as I have already expressed in a work published in 2000 together with the late and fondly-remembered jurist Celso Bastos, "any antagonism between Constitutions can be merely apparent, or textual, to the extent that a large part of the legal element is constructed by way of interpretative activity." (Bastos, Tavares, 2000: 44).
Universalist theses concerning fundamental human rights end up ignoring the Law as a typically cultural phenomenon and, furthermore, render difficult healthy interlocution between distinct constitutional jurisdictions. As I mentioned previously, interlocution will not occur in the event that one of the systems has the pretention of being in possession of the truth as concerns its positions. But it is also not possible to imagine an absolute relativism, equally unproductive and impeditive of effective interlocution.
The (receiving) Court should check the textual similarity or proximity between the Constitution of its country and the Constitution of the country where the constitutional decision to be used was rendered. This proximity is important when the intention is to develop rights present in the Constitution and included in the patrimony of Humanity. But grammatical proximity alone is insufficient, as mentioned, because it is also necessary to ascertain the compatibility between similar constitutional bodies regarding their constitutional practices and purposes.
It is necessary "to underline common elements (...) more than just merely make comparisons between constitutional bodies. It is necessary to collect ample knowledge about the constitutional Law of each of the countries under analysis.' (Bastos, Tavares, 2000: 44). This is a presupposition for the correct and not "de-contextualized" use of foreign elements by the constitutional jurisdiction of any country, although distorted and improper references are an everpresent risk which can, nevertheless, be minimized and even avoided.
In this sense I can quote the case heard by the Brazilian Supreme Federal Court concerning the anti-semitical book by S. Ellwanger, who negated the Jewish Holocaust and promoted racism (HC 82.424-2/RS). In this famous case, Minister Gilmar Mendes cites decisions rendered by the Supreme Court of the United States and the House of Lords as being some of the "elements" that led him to his conviction on the meaning and scope of the term "racism", in its historic and cultural construction; he cites, further, a decision rendered by the European Court of Human Rights that later assisted him in contextualizing his conviction, such decision being on the proportionality of the very same principles under consideration in the case submitted to the Brazilian Supreme Federal Court.
Considering that constitutionalism poses identical problems for Constitutional States and that one of the greatest objectives of true Democracy is precisely to promote fundamental human rights to a maximum, it is even possible to cogitate an implicit fundamental right, precisely by reason of the extensive protection afforded by the cross utilization of non-national case law.
It is worth mentioning, at this point, the common historical question of the military dictatorships in Latin America and the amnesty laws relative to political crimes and the torturers of the military regime. The central question was precisely whether the laws created by the military for the military could be considered valid and if, as a consequence, the perpetrators of all the crimes would qualify for amnesty. The legitimacy of these laws was, in general, questioned by later democratic regimes. The Brazilian Supreme Court, in a recent entry of judgment (ADPF 153-DF), was confronted by the same theme and produced an extensive comparative work on the amnesty laws of other States as well as on the constitutional decisions rendered at a later date by the Courts thereof on their laws, citing the Supreme Court of Chile, the Supreme Court of Argentina (2007) and the Supreme Court of Uruguay (2009), among others. In the same entry of judgment, Minister E. R Lewandowski, through his vote, could be clearly seen to be concerned about the contextualization of the theme. The conclusion, in both the foreign and Brazilian cases, was that the amnesty was valid and should be respected, without prejudice of ascertaining the authors and allowing full access by the citizens to the data and events of that period in History.
Therefore, within a constitutional system that permits (and, for more compelling reasons, that imposes) the critical and consistent (constant) use of foreign constitutional case law, such use should be mandatory, since it arises from the very idea of security and the maximization of fundamental human rights. Any rejection of foreign case law beneficial to the fundamental rights in question would have to be justified based on the latent peculiarities of each national Constitution.
Foreign case law should be used in a pondered fashion and the appropriateness of foreign elements in the national ambit should be fully demonstrated. And I propose that the Constitutional Courts be authorized and compelled when it comes to concretizing fundamental human rights, by virtue of their dogmatic preoccupation that such rights be fully realized. This sort of conduct is not only welcome, but should also be imposed on countries slow in consolidating these rights, such rights being solemnly
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NOTES
[1] The doctrine generally analyzes the theme without making a distinction in the treatment as to the use of foreign state elements, international elements or supra-national ones (taking into consideration the necessary distinction between foreign Law and international Law: Buys, 2007: 4); within these, a differentiation is also not usually made between the use of foreign laws and the use of foreign judicial decisions, or, within these, as to the specific use of constitutional decisions under the terms described below.
[2] "Capable of controlling the mastodon legislator and the leviathan administrator." (Cappelletti, 1993: 18).
[3] As, on many occasions, occurs in Brazilian constitutional case law.
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[4] I will not enter into a discussion about the different levels of acceptance of the use of foreign case law based on the distinction between civil law models and those of common law, since that is not the focus of this proposal.
[5] Understood, here, in the terms expressed below.
[6] Supranationality is understood here according to the concept of Francisco Rubio Llorente: "From the legal point of view, the notion of supranationality entails the existence of a structure composed of distinct States that keep title to their sovereignty, but composed also of its own departments, the decisions of which are imposed upon the member States; more precisely, it is a structure that has a direct effect on the territory of the States and that, in the event of collision, the laws created by such States prevail." (Rubio Llorente, 1997: 719)
[7] For precisely this reason, the expression "foreign case law" is preferred over "non-national case law", thereby avoiding confusion, since the latter can mean both the case law of other states, excluding the "receiving" State (in this sense, non-national) and case law arising from supra-state or supranational courts (in this sense, non-national and, therefore, excluding case law formatted in traditional national terms).
[8] Foreign elements alien to the spectrum mentioned previously will only be an indirect part of this work in the precise measure in which they have been considered determining factors by the very foreign decision used by a national Constitutional Court. The non-direct use (via doctrine, for example) of foreign constitutional case law also will not be the object of concern.
[9] In parallel with the previous footnote. This is evidently a case of a note that allows for a reduction in the complexity of the theme, since it prevents domestic discussion necessarily linked to a hierarchical model of judicial subordination or of subordination to the binding decisions of the Constitutional Court in light of (and in spite of) free judicial conviction and the (controversial) non-binding nature of the grounds for the constitutional decisions.
[10] Buys develops a line of reasoning that ends up admitting that the use of foreign constitutional case law by the United States is also necessary (Buys, 2007: 48).
[11] Parrish (2007: 662) notes the irony present here, for the American case, especially considering that the United States i) insist on imposing their laws [and values] upon the rest of the world; ii) routinely ignore the sovereignty of other nations.
[12] Considered one of the most progressive constitutions in the world.
[13] In this sense: Buys, 2007: 50 e ss., although allowing foreign elements only when the the language of the Constitution itself does not offer an answer to the question.
[14] Already seen in post 9/11 legislation and decisions.
Lábjegyzetek:
[1] The author is Professor at the Catholic University of Sao Paulo and Director of the Brazilian Institute of Constitutional Research.
Visszaugrás
