Wednesday, April 13, 2005

Roger Alford on foreign law in US constitutional adjudication

Professor Roger P. Alford of Pepperdine University law school has a new and outstanding article out in 52 UCLA Law Review 639 (February 2005), on the theory behind the use of foreign law in US constitutional adjudication. It is titled "In Search of a Theory for Constitutional Comparativism." It is the latest, and a superb, entry into the discussion of this issue - required reading for anyone interested in the matter. Professor Alford takes a measured, sober look at how the use of foreign legal materials fits with the current theories of Constitutional adjudication - originalism, natural law, majoritarianism, and pragmatism.

He concludes that natural law theory readily accepts foreign law citation - yet it is itself discredited as a theory of US Constitutional interpretation. Pragmatism is the "leading candidate for a theory that can sustain constitutiional comparativism ... But pragmatism is hardly capable of sustaining the full freight of the comparativist agenda. Pragmatic decisions that enhance civil liberties are rare, and they frequently offer a rationale for curtailing rather than advancing constitutional rights ... Devoid of a summum bonum, pragmatism is not prescriptive to the degree that most comparativists would like it to be."

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