Title

Interpreting Bills of Rights: The Value of a Comparative Approach

Publication Type

Journal Article

Version

Preprint

Publication Date

2007

Abstract

In certain jurisdictions, among them Malaysia, Singapore, and the United States, the practice of consulting comparative legal materials in interpreting domestic bills of rights has been criticized as illegitimate. This article examines four main concerns: (1) the texts of bills of rights -- the argument that a bill of rights is to be interpreted within its own four walls and not in the light of analogies drawn from other jurisdictions; (2) national identity -- the argument that a bill of rights embodies the values of a nation's people, and it is wrong to refer to foreign experiences to determine such values; (3) different domestic conditions -- the argument that comparative legal materials do not reflect local economic, political, social, or other conditions that differ from those in other jurisdictions; and (4) certain practical concerns. The article concludes that, notwithstanding these concerns, there are sound justifications for courts to take a comparative approach to the interpretation of bills of rights and substantial benefits to be derived from such an approach.

Keywords

Bills of rights, comparative law, constitutional law, human rights, statutory interpretation

Discipline

Public Law and Legal Theory

Research Areas

Law, Society and Governance

Publication

International Journal of Constitutional Law

Volume

5

Issue

1

First Page

122

Last Page

152

ISSN

1474-2640

Identifier

10.1093/icon/mol042

Publisher

Oxford University Press

Creative Commons License

Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Additional URL

http://dx.doi.org/10.1093/icon/mol042