Repensando los préstamos constitucionales: un análisis crítico del uso de materiales foráneos desde la experiencia argentina

Abstract

On regular basis, courts borrow foreign legal materials when deciding constitutional issues. In many countries, including Argentina, this practice is rarely contested. Within this framework, this paper is focused on studying legal borrowings in order to systematize them and highlight their potential risks. Considering Argentine jurisprudence, the article proposes a classification of the uses of foreign legal sources based on two variables: their authoritative nature and their weight in the judge’s final decision. After presenting the categorization, the article claims that any type of legal borrowing will imply certain risks, which will tend to increase progressively depending on how they are related to the aforementioned variables. Thus, based on the study of the impact of foreign materials on judicial decisions, this paper explores whether it should be discouraged the borrowing of comparative law.