Resumen de Constitutional Relevance of Foreign Court Decisions

Sinisa Rodin

• Reviving the historic debate on the use of foreign law in national constitutional interpretation, the author explores the question of whether legal rules and social standards of other states and legal systems are operational or should become operational in a domestic legal system by the agency of judges. Based on an analysis of European Union law, the author makes a distinction between foreign law as a formal element of adjudication and foreign law as part of a referential framework of judges, and suggests that the value of foreign legal materials in domestic adjudication is primarily cognitive, while their normative value depends on their compatibility with the EU’s constitutional ontology as understood by the Court of Justice of the EU. The author questions the adequacy of the functional comparative method in adjudication within the European Union by contrasting functions of national law against integrative functions of EU law. It is argued that the ontology of the European Union does not seek to reconstitute traditional functions of national legal rules on a European level, but to formulate integrative ones.