Under prevailing theories of comparative constitutional law, courts use foreign precedent in one of three ways: to identify “universal” principles of law applicable across jurisdictions; to sharpen understanding of domestic law through contrasting foreign judgments; and, in the case of legal systems with shared origins, to consider alternative jurisprudential paths. While the terminology differs, the concepts broadly hold across current theoretical treatments. Methodologically, these theories are built by analyzing certain foreign decisions, while scholars devote less effort in trying to test prevailing theories by applying theory to a court judgments outside those used to build their theories. In building a stronger body of scholarship dedicated to testing theories of comparative constitutional law, this Article analyzes the Supreme Court of India’s decision in Shri D.K. Basu v. State of West Bengal, in which the Supreme Court of India used legal opinions and reasoning from the United Kingdom, the United States, Ireland, Trinidad and Tobago and New Zealand to reach its conclusion that the Constitution of India includes basic protections for those arrested and detained by police as well as monetary remedies in case of police abuse. At work in the decision are all three of the theories of comparative constitutional adjudication outlined above. The case therefore usefully tests whether these theories adequately describe the process of comparative constitutional adjudication. The Article concludes that existing theories provide substantial explanatory power. However, prevailing theories of comparative constitutional interpretation fail to explore the role constitutional borrowing plays in enhancing the political power of judiciaries relative to national executives or legislatures or subnational actors like provinces or states. The Article traces the path of foreign precedent used by the Supreme Court of India, arguing that constitutional courts may use foreign precedent to enhance structural authority in addition to any interpretive insights those precedents may offer.
Sam Halabi, Constitutional Borrowing as Jurisprudential and Political Doctrine in Shri DK Basu v. State of West Bengal, 3 Notre Dame J. Int'l. & Comp. L 73 (2013).