New PDF release: Comparative Reasoning in European Supreme Courts

By Michal Bobek

ISBN-10: 0199680388

ISBN-13: 9780199680382

The final 20 years have witnessed an exponential progress in debates at the use of overseas legislations via courts. diverse labels were connected to an identical phenomenon: judges drawing proposal from outdoors in their nationwide felony structures for fixing merely family disputes. by way of doing so, the judges are stated to have interaction in cross-border judicial dialogues. they're making a greater, transnational neighborhood of judges.

This ebook places related claims to check relating to maximum nationwide jurisdictions (supreme and constitutional courts) in Europe this day. How usually and why do judges decide to draw concept from overseas fabrics in fixing family instances? The e-book addresses those questions from either an empirical and a theoretical perspective. Empirically, the real use of comparative arguments by way of nationwide maximum courts in 5 ecu jurisdictions is tested: England and Wales, France, Germany, the Czech Republic, and Slovakia. at the foundation of comparative dialogue of the perform and its nationwide theoretical underpinning in those and partly additionally in different ecu platforms, an overreaching theoretical framework for the present judicial use of comparative arguments is constructed.

Drawing at the author's personal previous judicial event in a countrywide superb courtroom, this ebook is a serious account of judicial engagement with international authority in Europe this day. The sober heart floor inductively conceptualized and awarded during this e-book offers stable jurisprudential foundations for the continued use of comparative arguments via courts in addition to its extra scholarly dialogue.

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Example text

With some generosity, one may nonetheless assume that the type of argument which is supposed to be advanced is a basic, albeit embryonic, comparative argument. Finally, for the purposes of this study, a comparison might be carried out with respect to any distinct foreign legal system, irrespective of whether it is another national legal system, the general international legal order, or a particular international law regime. In other words, it does not matter whether the reference to a foreign normative system is horizontal (to another similar system), vertical (to a superior system but outside its field of application), or diagonal (to an international regime but to which the unit does not belong).

In such situations, the reference to and the use of foreign law is a compulsory element of the correct application of national law itself. A slight refinement should be, however, added at this stage: there are areas within private international law where reference to foreign law may be outside the domain of mandatory references. 7 The criterion for deciding in which category the use of foreign law falls is thus not automatically the area of law (private international law/conflict of laws), but the type of legal basis on which the national judge is using foreign law in the particular case.

It tests if and how far judges in Europe today indeed choose to become transnational actors, seek to engage with the foreign, and seek to be influenced by it even if not obliged to. The focus is therefore on the situations in which the judge has a choice as far as consulting foreign law is concerned. There is a great difference between, on the one hand, judges using the laws of another state in a conflict of laws situation, and, on the other, using foreign law for interpreting a notion of the national constitution in a purely domestic situation.

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Comparative Reasoning in European Supreme Courts by Michal Bobek


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