The Dilemma of Constitutional Comparativism

Over the past decade, a trend of referring to foreign law and foreign judicial decisions has emerged in the case-law of both the American Supreme Court and the European Court of Human Rights. Two of the most controversial cases of the Supreme Court in this era were partly based on non-US law. The European Court of Human Rights in turn, also frequently refers to case-law of non-Convention states.This practice of what is called „constitutional comparativism" has been the cause of many debates in the United States, unlike comparable decisions by the European Court of Human Rights. All the same, it is far from self-evident that the Court, whose task it is to interpret and explain the Convention for 47 Member States, also refers to other jurisdictions. The apparent lack of justification of constitutional comparativism by the European Court demands further research.This article discusses constitutional comparativism by the Supreme Court and the European Court of Human Rights (ECtHR) and the debate on this phenomenon, particularly in the United States. It further seeks to answer the question under what conditions constitutional comparativism by the ECtHR - which appears to be part of a longer tradition of judicial activism - may be justified.