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    Comparative Reasoning in European Supreme Courts

    ISBN-10: 0199680388
    ISBN-13: 9780199680382
    Author(s): Michal Bobek
    Description: The last two decades have witnessed an exponential growth in debates on the use of foreign law by courts. Different labels have been attached to the same phenomenon: judges drawing inspiration from outside of their national legal systems for solving  More...
    Buy it from: $97.70
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    Publisher: Oxford University Press
    Binding: Hardcover
    Pages: 340
    Size: 6.25" wide x 9.25" long x 1.00" tall
    Weight: 1.386
    Language: English

    The last two decades have witnessed an exponential growth in debates on the use of foreign law by courts. Different labels have been attached to the same phenomenon: judges drawing inspiration from outside of their national legal systems for solving purely domestic disputes. By doing so, thejudges are said to engage in cross-border judicial dialogues. They are creating a larger, transnational community of judges.This book puts similar claims to test in relation to highest national jurisdictions (supreme and constitutional courts) in Europe today. How often and why do judges choose to draw inspiration from foreign materials in solving domestic cases? The book addresses these questions from both an empiricaland a theoretical angle. Empirically, the genuine use of comparative arguments by national highest courts in five European jurisdictions is examined: England and Wales, France, Germany, the Czech Republic, and Slovakia. On the basis of comparative discussion of the practice and its nationaltheoretical underpinning in these and partially also in other European systems, an overreaching theoretical framework for the current judicial use of comparative arguments is developed. Drawing on the author's own past judicial experience in a national supreme court, this book is a critical account of judicial engagement with foreign authority in Europe today. The sober middle ground inductively conceptualized and presented in this book provides solid jurisprudential foundationsfor the ongoing use of comparative arguments by courts as well as its further scholarly discussion.

    List of Abbreviations
    Introduction
    The Topic
    The Approach
    The Structure
    Acknowledgements
    The Framework
    The Debate on Comparative Reasoning by Courts
    A Historical View
    A Novelty…
    … Rising in Quantitative Terms
    The Context of the Current Debates
    Foreign Law in Courts: A Typology
    Mandatory Uses of Foreign Law
    Private International Law (Conflict of Laws)
    Mutual Recognition, Extradition, and Other Compulsory Considerations of Foreign Law
    Directly Applicable Sources of Public International Law
    Law of the European Union
    Law of the European Convention on Human Rights
    Advisable Uses of Foreign Law
    Reference to a Parent International Law (and to EU Law before Accession)
    Laws Shared with or Taken from Other States
    General Principles of Law
    Intra-federal References
    Voluntary Uses of Foreign Law
    Non-mandatory Uses of Foreign Law and Legal Comparisons
    Factors Influencing the Use of Comparative Arguments by Courts
    Introduction: Of Abstract Models and Causality
    General Factors
    The Political and the Legal
    The Size
    The Age
    Institutional Factors
    Level of the Court in the Judicial Hierarchy
    Analytical Back-up
    Points of Reference, Networks, Databases
    Procedural Factors
    Cases Selection
    Activity of the Parties
    Amicus curiae
    Costs of Litigation
    Human Factors
    Comparisons in Private and in Public Law
    Constitutional Adjudication and Human Rights
    The Practice
    Prologue: The Method and its Pitfalls
    What
    How
    Potential Inaccuracies
    England and Wales
    The Doctrine
    Precedent
    Statutory Interpretation
    An Axiomatically Open System
    Judicial Views
    The Judicial Forum
    Extra-judicial Fora
    The Practice
    The Common Law and the Rest of the World Gap
    A Glance at the Appellate Committee of the House of Lords in 2009
    The Supreme Court of the United Kingdom
    An Evaluation: A Real Change or Just a Change in Taxonomy?
    The Unity of the Common Law-from Appeals to Coordination
    With Whom to Compare?
    The Voluntary Commonwealth and the Compulsory Europe
    France
    A Note on the Judicial Style
    The Doctrine
    The Exegesis
    G�ny and the libre recherche scientifique
    Saleilles and the Search for Objective Judicial Comparisons
    The Modern Entry Points: Dynamic Interpretation, Standards, and Gaps
    Judicial Views
    The Practice
    Indirect Evidence of Comparative Analysis
    Conseil d'Etat
    Coar de cassation
    Conseil constitutionnel
    An Evaluation: Comparative Analysis as a Liberalizing Exercise?
    Germany
    A Note on the Structure of German Federal Jurisdictions
    The Doctrine
    The Comparative Law Debate
    The General Rechtsdogmatik
    Judicial Views
    The Judicial Forum
    Extra-judicial Fora
    The Practice
    Bundesverfassungsgericht
    Bundesgerichtshof
    Bundesverwaltungsgericht
    The Overall Picture: The Pre-eminence of Scholarly Comparisons
    Czech Republic
    The Doctrine
    Judicial Views
    The Practice
    �stavn� soud
    Nejvy��� soud
    Nejvy��� spr�vn� soud
    Explaining the Gaps
    Comparative Law without a Theory
    Judicial Differentiation and Institutional Mentality
    Slovakia
    Judicial Views
    The Practice
    �stavn� s�d
    Najvy��� s�d
    The Difference: Common History Does Not Mean the Same Present
    An Empirical Epilogue: Quantity, Quality, and Beyond
    The Quantity
    The Quality
    The Theories
    The Appraisal
    Comparative Reasoning by Courts: The Theoretical Playing Field
    Judicial Ideologies and Judicial Decision-making
    The Need for Extra-systemic Inspiration
    Gaps in Law
    Societal Change
    Judges as Legislators
    The (Positivistic) Limits of Comparative Reasoning by Courts
    Persuasive, never Binding
    Subsidiary, never Controlling
    Additional, never Free-standing
    Defendable and Selective, not Exhaustive
    Summary: Of Old and New Hats
    On Authority, Citation, and Silence
    The Authority and its Display in a Judicial Decision
    The Types of Authority: The Rational and the Religious
    The Discovery and its Representation
    The Styles of the Representation
    The Meaning of a Legal Citation
    To Read and/or to Quote?
    The Advantages of Silence
    The Institutional and the Substantive Legitimacy
    The Transparency Trap
    Transparency and Other Values
    Comparative Reasoning by Courts: Some Classical Points Revisited
    The Legitimacy
    The Methodology
    The Challenges: Of Cherries and Misunderstandings
    Blurred Methodology or Blurred Yardsticks?
    The Purpose
    The Predictability
    The Deviations: Political Over- and Non-comparisons
    Politics of Comparisons
    Over-comparisons
    The Nature of a Legal Transition
    Judiciary in a Legal Transition
    Methodological Aspects: External Inspiration and Authority
    Institutional Aspects: From Revolutionary Tribunals to Regular Supreme Jurisdictions
    Of Law Importation and Temporal Colonies
    Non-comparisons
    Superiority, Exclusivity, and Political Closures
    The American Deviation
    Conclusions
    Select Bibliography
    Index

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