L'usage du droit comparé dans le raisonnement du juge : analyse en matière de droits fondamentaux au Canada et en Afrique du Sud
Establishing fundamental rights texts over a broad diversity of countries offers the national constitutional judge a full field of study to interpret these rights. To give life to the text itself, it is common that national judges focus a lot on the methods applied in other states. This study will primarily be centered around how these judges use the comparative technique. Therefore, the use of this method in the judge's reasoning can often be seen as useful in order to be inspired by the work of others that came before him. Two states that stand out by the way they use the comparative method in their fundamental rights interpretation are Canada and South Africa. These two countries higher courts judges are using this method in a recurrent way, and thus providing a fertile ground for the analysis of the pros and cons, utilities and limits of this technique as a whole. The use of comparative law in the judge's reasoning is thus often useful, but is it always legitimate? Over the course of this study, we will dig deeper to take a closer look at the way judges are using the comparative method. Thus, we will note the utility as well as the dangers of resorting to foreign law in the practice of interpretating national fundamental texts.
Constitution Canada Foreign Law Comparative Law Fundamentals rights South Africa Judges Constitutional Courts