The normativity of judicial borrowings: A blind spot in judicial decision-making studies

The study of judicial borrowings, courts' appropriation of foreign legal material, has been kept aside from the methodological shift that placed judicial decision-making in the centre of legal theory. In the second half of the 20th century, two premises became largely accepted among legal theorists: that judicial decisions ought to be justifiable and that the arguments judges offer in justification for their rulings are necessarily normative. These premises imply a methodological standpoint known as the participant's perspective. However, the prevailing approach in comparative legal studies is still descriptive and explanatory and adopts the observer's perspective. As a consequence, comparatists have failed in tackling the normative issues that judicial borrowings raise. The most obvious but rarely asked question is: 'Are judges legally authorized to do so?'. Particularly the democratic principle poses a serious objection: judges would not be entrusted with authority to draw conclusions from legal sources that the people have not accredited. The main purpose of this paper is to provide the basis for an analytic and normative approach to this and other objections, by construing them as demands of justification. The essay takes the postures of three constitutional courts towards borrowings-the U.S. Supreme Court's resistance, the German Federal Constitutional Court's selectiveness, and the Brazilian Supreme Federal Court's enthusiasm-as three distinct normative attitudes. As I submit, if the choice of sources on which judges base their decisions ought not to be arbitrary, each court should be provoked to justify its own attitude towards borrowing, and scholars must be prepared to contribute to the debate. This paper should provide a starting point for these discussions.