How to Build Trust with Arguments from Comparative Law?

Courts dealing with constitutional issues regularly use comparative arguments: in their reasoning, they refer to foreign constitutions, laws, court decisions, or legal scholarship. They sometimes use comparative law to reinforce their legitimacy and convince their audience. While there is a broad literature on the legitimacy dilemma (especially because of the exceptionalism doctrine of the US Supreme Court), the methodological question is seldom raised. Scholars agree that there is usually a lack of methodology in comparative reasoning. The use of foreign law is often accidental, and ‘cherry-picking’ and ‘misuse’ of comparative law are widely accepted phenomena. Bringing examples from the practice of the Supreme Court of Canada and the Hungarian Constitutional Court, the paper examines how a transparent and methodologically well-founded comparative reasoning can enhance public trust – and on the contrary, how cherry-picking can backfire and weaken legitimacy.