This blog has covered Naz Foundation’s use of comparative legal materials previously. In an article titled “Inclusive Constitutional Comparison: Reflections on India’s Sodomy Decision”, forthcoming in the American Journal of Comparative Law, I reflect upon the role that foreign and international law played in Naz Foundation. The article is now available for download here, though the final version will have minor revisions. The abstract is as follows:
Recent years have witnessed an outpouring of literature evaluating whether judges should refer to foreign law in resolving domestic legal disputes. A range of theories now posit constitutional comparison, outlining its benefits and highlighting its promise. Yet the support for such a practice is deeply qualified; comparative scholars narrowly limit the nations that should be considered while performing comparative study. This essay in comparative law theory reflects upon India’s recent sodomy decision, Naz Foundation v. Government of NCT of Delhi, to evaluate which countries should be part of the comparative law project. In Naz, the Delhi High Court decriminalized homosexuality while referring extensively to a range of unlikely foreign sources, such as decisions from Nepal and Fiji. Assessing the role that such references may have played, we find that Naz calls on us to revisit the boundary question in comparative constitutional law by revealing the network effect of judicial decisions. Drawing on the distinction between content-independent and content-dependent reasons, this essay illustrates the nature of force that foreign law may exert and demonstrates why an inclusive approach towards constitutional comparison may not only be beneficial but perhaps necessary. Such an approach holds the greatest promise of responding to concerns like cherry-picking, and gives our work an opportunity to be not merely comparative but truly global.