Courts as Comparatists: References to Foreign Law in the case-law of the Polish Constitutional Court

This paper presents results of an empirical study of over 160 judgments in which the Polish Constitutional Court (‘PCC’) referred to foreign law. It reveals the scale of comparatist activity and draws conclusions in relation specifically to countries in transition. Because of the pace of transition and its strong international dimension, with the international community deeply involved in the democratisation process, the PCC has been more willing to turn to other jurisdictions than its Western counterparts. The openness towards foreign law persisted and became helpful when the Court had to assert its position vis-à-vis the executive and legislature. Judicial comparativism became a powerful legitimising tool. Despite methodological weaknesses, the comparatist activity demonstrates how the PCC steered a receptive legal system in a country in transition towards a legal system responsive to transnational judicial co-operation and emerging uniformity in a globalizing world.