A Tool, Not a Master:The Use of Foreign Case Law in Canada and South Africa
Abstract
Whereas most scholars approach precedent as an issue of compliance, the author argues that judges rely on precedent because of its utility in cutting information costs, decreasing uncertainty, and providing justification. This article explores the utility that foreign precedent had for high court judges in South Africa and Canada in the periods directly following the adoption of new constitutional protections for civil liberties. The analysis reveals that judges in these countries made significant use of both foreign and domestic precedent when dealing with new and/or highly contentious issues and that reliance on foreign precedent declined over time as judges developed an increasing number of indigenous precedents. This consideration of foreign precedent suggests that judges can be important contributors to the process of globalization in the area of human rights law.