Openess and dialogue between constitutional courts: identifyng use patterns of the brazilian supreme court in relation the "comparative law argument"

Abstract

The use of foreign elements is a discursive strategy that has been largely utilized by constitutional judges, as if it were part of a global trend. However, this practice has several critiques related to its legitimacy (methodological difficulties and sovereignty objections). In light of this, this paper defines the discourse patterns of the STF (Brazilian Supreme Court –Supremo Tribunal Federal) in relation to the use of foreign precedents for its reasoning. Through the inductive method and quantitative and qualitative analyses, this study carefully selected and analyzed decisions of the STF, from the years 1998 to 2007, that specifically used this strategy. Moreover, in the first phase of this research, one can perceive that this argumentative strategy fulfills multiple purposes, playing a merely ancillary role in the hermeneutic work of the court.