Comparative Reasoning in European Supreme Courts
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Product details:
- Publisher OUP Oxford
- Date of Publication 8 August 2013
- ISBN 9780199680382
- Binding Hardback
- No. of pages320 pages
- Size 239x172x25 mm
- Weight 630 g
- Language English 0
Categories
Short description:
When and why do judges use inspiration from other systems in solving cases in national law? This book examines the frequency and the genuine practice of cross-border judicial dialogue in contemporary Europe. It evaluates these findings and asks what they mean for our understanding of judicial reasoning and judicial function today.
MoreLong 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 purely domestic disputes. By doing so, the judges 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 empirical and 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 national theoretical 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 foundations for the ongoing use of comparative arguments by courts as well as its further scholarly discussion.
Studying the comparative reasoning of courts judicial dialogues has been one of the more fashionable topics in legal academia over the past decade. Bobek's book is a valuable contribution to the study of this topic, fact-checking the practice of judicial comparisons through a study of supreme court decisions in England and Wales, France, Germany, the Czech Republic and Slovakia...the book provides a well-researched and realistic account of the reality of comparative law in national Supreme Courts.
Table of Contents:
Introduction
The Debate on Comparative Reasoning by Courts
Foreign Law in Courts: A Typology
Factors Influencing the Use of Comparative Argument by Courts
Prologue: The Method and its Pitfalls
England and Wales
France
Germany
Czech Republic
Slovakia
An Empirical Epilogue: Quantity, Quality and Beyond
Comparative Reasoning by Courts: the Theoretical Playing Field
On Authority, Citation, and Silence
Comparative Reasoning by Courts: Some Classical Points Revisited
The Deviations: Political Over- and Non-comparisons
Conclusions
