Comparative Reasoning by Courts: Some Classical Points Revisited

The chapter revisits four of the objections commonly raised against the judicial use of comparative inspiration: legitimacy, methodology, purpose, and predictability. It deals, first, with the question of legitimacy for judicial ‘travels abroad’. Secondly, the traditional challenges formulated in relation to the alleged lack of methodology for judicial comparisons, their selectivity, and utilitarian character, are critically discussed. It is suggested, thirdly, that there is nothing wrong with the methodology, but rather with the presumed aims and purposes of comparative inspiration in courts, which are then translated into incorrect yardsticks. Finally, the seemingly unpredictable patterns of comparative arguments when employed by courts are discussed. Can there be a theory of something one cannot in fact exactly foresee?

Slovakia

The judicial practice of the use of comparative arguments in the two highest Slovak jurisdictions, the Ústavný súd and the Najvyšší súd, provides an intriguing contrast study to the developments described in the previous chapter with respect to the Czech Republic. In spite of sharing the same legal tradition and in spite of also being a country in transition, the externally visible quantity of comparative inspiration in the highest Slovak courts is meagre if not non-existent. The chapter offers a number of explanations for such differentiation: political, institutional, as well as cultural.

France

Assessing French theory and practice of the use of comparative arguments by courts, in particular by the three French highest courts, the Conseil constitutionnel, the Cour de cassation, and the Conseil d´Etat, the chapter suggests that in spite of not being visible on the surface, there is comparative exchange going on. For reasons peculiar to the legal and judicial tradition, such an exchange does, however, take on particular form. First, it is not openly displayed. Comparative reasoning in courts is primarily used as a tool of internal debates, not as an instrument for external justification. Secondly, because of the historical constitutional balance within the legal system, comparative law has traditionally been seen as a matter for the legislator and legal scholarship, not for the courts.

Prologue: The Method and its Pitfalls

The chapter sets out the research design and questions for the case studies in the second part of the book. It discusses what is being examined with respect to all the systems studied and how it is achieved. Furthermore, problems encountered in doing empirical research into case law and judicial behaviour are acknowledged and the degree of potential data distortion caused by them discussed.

Factors Influencing the Use of Comparative Arguments by Courts

Whether or not judges use comparative arguments is determined by a complex interplay of a number of legal and extra-legal factors within each legal system. The chapter introduces and discusses a number of such factors, which influence the likelihood of the use of comparative reasoning within judicial decision-making at the national level. The factors are grouped into four areas: general, institutional, procedural, and human factors. The closing two sections of this chapter discuss two specific, domain-dependent issues: first, whether it makes any difference, for the likelihood of the use of comparative reasoning, if the dispute at hand pertains to the area of private law or public law. Secondly, the final section addresses the same question with respect to the area of constitutional adjudication and human rights.

Introduction

In the introduction, the topic and its importance, the approach, and the structure of the book are discussed. It closes with acknowledgements

The Debate on Comparative Reasoning by Courts

The chapter provides a historical and contextual introduction to the debates on the use of comparative law by courts. It critically reviews the two key assumptions of the current debates: namely that the use of comparative inspiration by courts is a novelty and that its frequency is rising. These assertions are put into a broader context of the evolution of comparative law and legal theory over the last few decades. It is suggested that the use of foreign inspiration for solving domestic cases is certainly not new; what has changed are the debates about this phenomenon. The reasons for the enhanced scholarly attention are traced back to the changes in legal scholarship itself.

Conclusions

In spite of being constantly pushed by the legislator and also by the international liberal scholarship towards embracing the ‘global’ or ‘transnational’, most national judges display rather remarkable conservatism. The conclusions offer some final explanations as to why this is so and why the courts will hardly ever become the place for boosting comparative scholarship.

The Deviations: Political Over- and Non-comparisons

The chapter seeks to conceptualize the deviations from the normal tolerant openness towards comparative inspiration established legal systems generally demonstrate. The first part of the chapter describes such deviations and their origins. In the second part, a recent instance of over-use of comparative inspiration is examined: the role comparative arguments and above all comparative rhetoric played in legal transitions in Central Europe. In the third part, examples of non-uses caused by political system closures are given. In particular, the currently extensively debated uneasy position of the use of foreign law in the US courts is discussed, in particular with respect to one question: why is it that the debates on the subject of the use of foreign law in the US courts have become so heated and, in a way, pathological?