The comparative law in the constitutional adjudication

Abstract

This study addresses the growing use of the comparative law perspective in the rationality of decisions at constitutional courts. A much interesting and actual tendency, the correlation between comparative law and constitutional law is revealed by cases decided in Portugal, united states and south Africa, which has gathered great scholarly attention, with special focus in the historical and legal contours of these jurisdictions. The first aim is to examine the alignment of the Brazilian Federal Supreme Court to the comparative trend, which is carried out by jurisprudence analysis of documents available on the official website of the institution. In addition, it was conceived a possible explanation for the intrinsic problem of the interpretation/concretization of constitutional rules and principles based on data gathered in another legal order, a task supported by the so called constitutional state. This approach has in mind to inquiry the actual role that the comparison of rights has reached in the present constitutionalism.