Judicial Comparativism and Human Rights

Abstract

This paper critically examines recent debates about the appropriate relationship between human rights interpretation and comparative legal methods. These debates have increased significantly in the past decade, and are by no means exhausted. This has occurred in part because of the increased citation by judges of 'foreign' legal materials, in particular judicial opinions, from jurisdictions that have no legal authority in the 'receiving' jurisdiction. Courts are playing an impressive role in the creation of what some see as a 'common law of human rights' or, in the context of Europe, 'a ius commune of human rights'. How human rights interpretation develops by making extensive use of comparative law is an intriguing example of the utilisation of comparative law by courts. Debates about the appropriateness of this have proven useful in illuminating aspects of both comparative law and human rights interpretation.