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The Use of Foreign Precedents by Constitutional Judges

Editor(s): Tania Groppi, Marie-Claire Ponthoreau
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Published: 28-03-2013
Format: Hardback
Edition: 1st
Extent: 470
ISBN: 9781849462716
Imprint: Hart Publishing
Series: Hart Studies in Comparative Public Law
RRP : £75.00
 

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Loren Epson

About The Use of Foreign Precedents by Constitutional Judges

In 2007 the International Association of Constitutional Law established an Interest Group on 'The Use of Foreign Precedents by Constitutional Judges' to conduct a survey of the use of foreign precedents by Supreme and Constitutional Courts in deciding constitutional cases. Its purpose was to determine - through empirical analysis employing both quantitative and qualitative indicators - the extent to which foreign case law is cited. The survey aimed to test the reliability of studies describing and reporting instances of transjudicial communication between Courts. The research also provides useful insights into the extent to which a progressive constitutional convergence may be taking place between common law and civil law traditions. The present work includes studies by scholars from African, American, Asian, European, Latin American and Oceania countries, representing jurisdictions belonging to both common law and civil law traditions, and countries employing both centralised and decentralised systems of judicial review. The results, published here for the first time, give us the best evidence yet of the existence and limits of a transnational constitutional communication between courts.

Table Of Contents

Introduction. The Methodology of the Research: How to Assess the Reality of Transjudicial Communication?
Tania Groppi and Marie-Claire Ponthoreau
Part I
1. Reference to Foreign Precedents by the Australian High Court: A Matter of Method
Cheryl Saunders and Adrienne Stone
2. Canada: Protecting Rights in a 'Worldwide Rights Culture'. An Empirical Study of the Use of Foreign Precedents by the Supreme Court of Canada (1982–2010)
Gianluca Gentili
3. India: A 'Critical' Use of Foreign Precedents in Constitutional Adjudication
Valentina Rita Scotti
4. The Supreme Court of Ireland and the Use of Foreign Precedents: The Value of Constitutional History
Cristina Fasone
5. Israel: Creating a Constitution-The Use of Foreign Precedents by the Supreme Court (1994–2010)
Suzie Navot
6. Namibia: The Supreme Court as a Foreign Law Importer
Irene Spigno
7. South Africa: Teaching an 'Old Dog' New Tricks? An Empirical Study
of the Use of Foreign Precedents by the South African Constitutional Court (1995–2010)
Christa Rautenbach
Part II
8. Austria: Non-cosmopolitan, but Europe-friendly-The Constitutional Court's Comparative Approach
Anna Gamper
vi Contents
9. Lifting the Constitutional Curtain? The Use of Foreign Precedent by the German Federal Constitutional Court
Stefan Martini
10. Hungary: Unsystematic and Incoherent Borrowing of Law. The Use of Foreign Judicial Precedents in the Jurisprudence of the Constitutional Court, 1999–2010
Zoltán Szente
11. A Gap between the Apparent and Hidden Attitudes of the Supreme Court of Japan towards Foreign Precedents
Akiko Ejima
12. Mexico: Struggling for an Open View In Constitutional Adjudication
Eduardo Ferrer Mac-Gregor and Rubén Sánchez Gil
13. Romania: Analogical Reasoning as a Dialectical Instrument
Elena Simina Tanasescu and Stefan Deaconu
14. Russia: Foreign Transplants in the Russian Constitution and Invisible Foreign Precedents in Decisions of the Russian Constitutional Court
Sergey Belov
15. Judges as Discursive Agent: The Use of Foreign Precedents by the Constitutional Court of Taiwan
Wen-Chen Chang and Jiunn-Rong Yeh
16. United States of America: First Cautious Attempts of Judicial Use of Foreign Precedents in the Supreme Court's Jurisprudence
Angioletta Sperti
Conclusion. The Use of Foreign Precedents by Constitutional Judges: A Limited Practice, An Uncertain Future
Tania Groppi and Marie-Claire Ponthoreau

Reviews

“The collected data for each jurisdiction makes for engaging reading. It reveals details of the extent of visible (and sometimes implied) comparative activity that each of the courts displays in its jurisprudence. It also amounts to an assessment of the successes and shortcomings of the use of foreign precedent (in terms of the level of reciprocal influence of well-functioning constitutional systems) by judges that are more or less inhibited by their judicial culture to do so…The editors' concluding chapter conveniently provides the reader with a comparative overview, both of the quantitative and qualitative results of the country reporters, and a tentative perspective on the future of comparative judicial practice in constitutional cases…The purpose and goals of the project are met by the book: we now have a clearer picture of how some of the most prominent constitutional courts deal (or desist from dealing) with comparable judgments in other countries.” –  François Venter, International Journal of Constitutional Law, Vol. 12, no 1

“The editorial decisions behind the individual reports are explained in the introductory chapter and ensure that each report adopts the same format. Although this is repetitive, the clear advantage is that it makes it easy to compare the approaches taken by different courts. This also highlights the hero of the volume: the empirical data within each report…The volume also provides valuable evidence on other common assumptions about judicial comparativism…The volume nevertheless represents a refreshing approach to complex questions raised in debates about constitutional borrowing, transjudicial communication, or the migration of constitutional ideas. As the editors point out, studies that catalogue the different approaches adopted by constitutional or supreme courts in their use of foreign law remain relatively rare. For this reason, The Use of Foreign Precedents by Constitutional Judges will be essential reading for scholars seeking to refresh the debates about using foreign law.” –  Hélène Tyrrell, Public Law

“The work by Groppi and Ponthoreau is the result of a well-structured project and relies on sound methodology, which guarantees that all relevant issues are addressed and empirically verified...The individual chapters are also well written, thoroughly researched and easy to understand thanks to the use of various tables and graphs. (Translated from the original German.)” –  András Jakab, Verfassung und Recht in Übersee 47/2014

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