Judicial comparativism and legal positivism

Abstract

The article explores the relationship between the use of foreign law in courts and legal positivism. The point of departure is Jeremy Waldron’s notion that foreign consensus is our law; such law exists outside of a legal system, depends on its moral merits and hence brings some of the central positivist commitments into question. The article maintains that even if foreign consensus were our law, this would not undermine legal positivism, and—moreover—that foreign consensus is actually not our law. In so doing, it advances an account of foreign law as a facultative theoretical authority that is best explained by the positivist idea of judicial law making.