THESIS Version 12 Oktober 2012

DISSERTATION Titel der Dissertation Traces of Inspiration - The Usage of Foreign Citations by Supreme Courts Verfasserin Mag.a iur. Marianne Schulze, LL.M. angestrebter akademischer Grad Doktorin der Rechtswissenschaften (Dr.in iur.) Wien, 2012 Studienkennzahl lt. A 083 101 Studienblatt: Dissertationsgebiet lt. Rechtswissenschaften Studienblatt: Betreuerin / Betreuer: Univ.-Prof. Dr. Clemens Jabloner IN MEMORIAM ROSINA SALZNER. ii iii TABLE OF CONTENTS ABBREVIATIONS VII I. INTRODUCTION & THESIS 1 II. WHAT IS COMPARATIVE CONSTITUTIONAL LAW? 3 1. Borrowing and other “Transfers” of Foreign Law(s) 4 2. The Institutionalization of Comparative Law 8 3. The Comparative “Method”? 12 4. Comparative Constitutionalism 15 5. Interim Findings 16 III. THE CURRENT EXCITEMENT ABOUT COMPARATIVE CONSTITUTIONAL LAW 18 1. “Globalization” 18 2. Human Rights 21 Excursus: The European Court of Human Rights 26 3. Dialogue of Judges 28 4. Interim Findings 29 IV. EXCEPTIONS TO THE CURRENT EXCITEMENT 31 1. The first special case: United States of America 31 a. Moods, Fads & Fashions: Recent Cases 32 b. Well Acquainted: A History of References 43 2. The Second Special Case: Austria by way of Germany 45 3. Interim Findings 52 V. PROBLEMS AND LIMITS OF COMPARATIVE LAW 54 1. Language 54 2. Structural limits 55 3. Transnational Law 56 4. Legal Families 57 5. Legal Culture 58 iv 6. “Civilized” World 59 7. Legal Imperialism 61 8. Civil and Common Law 64 9. Method(s) of Comparative Law 67 10. Functionalism 71 11. Selection 75 12. Providing Context 78 13. Interim Findings 82 VI. PURPOSE OF COMPARATIVE LAW 83 1. Predisposition of Judges 86 2. Legitimacy 88 Excursus: The (In)voluntary Nature of Comparative Constitutionalism 92 3. Typologies 97 4. Negative Model: Rejection of Comparative “Material” 102 5. Interim Findings 105 VII. USING FOREIGN CITATION 106 1. Interpretation Methods 106 2. Open Method(s) of Interpretation - Entry point for foreign citations in interpretation methodology? 112 3. Pathway of Judgments 114 4. Foreign Citations as a Source 117 Excursus: Incorrect Citations 120 5. “Guidelines” 121 6. Cases 122 a. Slowly drowning out the source … 122 b. The next appearance: 128 c. The Under-acknowledged, yet Frequently Invoked Proportionality Test 129 d. A Different approach 134 f. Central Europe 138 VIII. CONCLUSION 146 BIBLIOGRAPHY 149 v LIST OF CASES 166 ACKNOWLEDGEMENTS 170 ANNEX I: ABSTRACT (ENGLISH) 171 ANNEX II: ABSTRACT (GERMAN) 173 ANNEX III: CURRICULUM VITAE 175 vi Abbreviations ABGB Allgemeines Bürgerliches Gesetzbuch BVerfGH Bundesverfassungsgerichtshof BVerfGE Bundesverfassungsgerichtshof, Entscheidung ECtHR European Court of Human Rights ECHR European Convention on Human Rights and Fundamental Freedoms ECJ European Court of Justice EuGRZ Europäische Grundrechtezeitschrift VfSlg Sammlung der Erkenntnisse und wichtigsten Beschlüsse des Verfassungsgerichtshofes vii viii I. Introduction & Thesis Comparative constitutional law has recently seen what contemporary language aptly describes as “hype,” a whirlwind of excitement. The surge in attention given to crosscutting constitutional challenges, including citations in high court judgments, derived from foreign jurisdictions, is documented in a sumptuous collection of seminars, special-issue law journals, and books. As with many of the phenomena attributed to globalization – understood as the increase of information availability and its exchange – the perceived novelty and increase of such references does not stand even superficial scrutiny. Assuming that such references are made with some frequency, one of the many questions arising is: “how?” Acknowledging, but for the moment not further expounding, the possibility of the thought and argument of a judgment being utilized without overt credit, this thesis seeks to focus on how overt references are made and how they are built into the case under discussion. The phrase “elsewhere it has been held” – and variants thereof – are frequent placeholders in cases that are influenced by foreign sources. In seeking to discern the patterns that are followed when citations from “elsewhere” are utilized, there are a few pieces of the puzzle that need to be dissected to understand the manifold implications of such citation usage. In trying to lay the ground the thesis will be looking at the following elements: For starters, the issue of foreign citations has to be positioned within the field of comparative law. As will be shown, the usage of references from other jurisdictions is but one part of the various aspects, which comparative law covers. Its origins in private law are only the start of a discipline that is also viewed as a method in both making and interpreting law. The aforementioned recent increase in attention given to foreign citations warrants a brief explanation attempt also because such a review sheds light on the reservations of some of those who are adamant in staying out of the ‘hype’. Most prominently, some judges of the US Supreme Court are extra-outspoken about their caveats. An overview of these will directly lead to yet other judiciaries that take exception to the rule: Germany and Austria, the latter with a focus on the “Modus Austriacus.” As recently published findings show very clearly, the self-described introversion, which appears to have somewhat shielded the legal community from the development of reviewing overseas’ interpretations, has also manifold historic reasons. A seemingly self-evident and pointed question is: why? Why make reference to “elsewhere”? What is the motivation? Are there triggers? And if so: can they be ascertained? Following this – albeit brief – discussion of incentives, responses to the counter-question will also be sketched out: what are the limits of this practice? What potential “dangers” may one be importing from “elsewhere”? An eye-catcher in Europe lies in the division between civil and common law – but is that already a line that cannot be crossed? Finally, this part will also touch on an underlying challenge: the leaning towards Europe and the (dis)regard for later developments in newly emerged and emerging jurisdictions beyond the shores of the “old continent”, around the globe. With a view to supranational jurisdiction in Europe, the European Court of Justice (ECJ) as well as the impact of the rulings by the European Court of Human Rights (ECtHR), a brief clarification is in order to draw a line between references, which are created because of structural dependencies and self-initiated usages of foreign citation. Taking the path of foreign citations full circle necessarily includes working through the thickets of decision making: methods of how judgments are put together, canons of interpretation, and trying to define the limits of judicial discretion, will be the reviewed, accordingly. In piecing the puzzle together, the above clarifications will be put to action in a number of – randomly – selected cases, which show how citations from “elsewhere” move about. Based on the ground laid out, the thesis will be tested: what are the patterns followed when a high court decision from “elsewhere” is taken into account, how do the thoughts and the content of a foreign judgment “travel”? And ultimately: how could a “model” utilization of foreign citations look like? 2 II. What is Comparative Constitutional Law? “Lawyers without borders”1 is at once a reference to the possibilities lawyers have – literally at their fingertips – in the early 21st century as well as succinct summary of the most recent history of comparative law.2 Reputed to be a domain within private law, comparative law has long evolved as a constant in the field of public law.3 Comparative law is in very essence, the intellectual process of contrasting, evaluating – in other words comparing – the law of two different entities, usually countries.4 Then again, as Samuel5 pointedly states, one has to agree on the terms and underlying concepts of both “comparison” and “law” to gain a better understanding of what “comparative law” means.6 He rightly holds that it is easier to summarize what comparative law is not, adding that often the mere usage of foreign material is considered “comparative”, even if it remains unclear whether said material was obtained through comparative methods.7 The question of potentially “superficial”8 comparative law and particularly of “hidden”9 comparative law will reemerge later.10 The process of comparing law has roots at least as far back as antiquity11 and emerges in different forms. Leaving aside the well-established comparison in the realm of private law, the aim of this chapter is to focus on comparison in public law. While at first thought it might be easy to dismiss the relevance of comparison in public law, studies of constitutional court systems and the influence of well-established constitutions on recently drafted 1 Glenn, Comparative Law and Legal Practice, 989. 2 Incidentally it is also alludes to a highly reputed non-governmental organization providing medical services across the world, frequently in conflict and post-conflict areas, Médecines Sans Frontières. 3 See, below, Chapter II. 4 See further Zweigert/Kötz, An Introduction to Comparative Law, 2ff. 5 Samuel, Comparative Law and the Courts. 6 Ibid, 253. 7 Ibid, 254. 8 Ibid, 260 f. 9 Ibid, 255. 10 See, below, Chapter VII. 11 For the history of Comparative Law see below. 3 constitutional texts come to mind. Pausing at the thought of the latter, “borrowing”, i.e., the utilization of foreign legislation for a legislative drafting process, is a

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