By Michal Bobek
The final twenty years have witnessed an exponential progress in debates at the use of international legislations through courts. various labels were hooked up to an identical phenomenon: judges drawing concept from outdoor in their nationwide felony structures for fixing only family disputes. through doing so, the judges are acknowledged to interact in cross-border judicial dialogues. they're making a higher, transnational group of judges.
This booklet places comparable claims to check in terms of maximum nationwide jurisdictions (supreme and constitutional courts) in Europe this day. How frequently and why do judges decide to draw suggestion from overseas fabrics in fixing family instances? The e-book addresses those questions from either an empirical and a theoretical attitude. Empirically, the true use of comparative arguments through nationwide maximum courts in 5 eu 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 in part additionally in different eu platforms, an overreaching theoretical framework for the present judicial use of comparative arguments is built.
Drawing at the author's personal prior judicial adventure in a countrywide preferrred court docket, this e-book is a severe account of judicial engagement with international authority in Europe this present day. The sober heart flooring inductively conceptualized and awarded during this ebook offers stable jurisprudential foundations for the continued use of comparative arguments through courts in addition to its additional scholarly dialogue.
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Extra resources for Comparative Reasoning in European Supreme Courts
Such narrative, often presented by judges themselves when being asked as to why they do not carry out more comparative analysis in their decision-making, is nonetheless a bit too sketchy. Such ideal conditions are in fact never present. At the same time, however, judges still occasionally ﬁnd the extra energy and appetite to look beyond national borders. The discussion in this chapter therefore seeks to move beyond such obvious answers. It identiﬁes factors which may generate a little more time, ease access, but also stimulate judicial interest in and understanding of foreign inspiration.
The conclusion drawn from such comparison is then employed in further reasoning. Not every use of foreign law involves comparisons. In most of the categories identiﬁed above as mandatory uses of foreign law, there is no comparison going on at all. The domestic legal system absorbs the directly applicable sources of a foreign normative system. They are given the normative quality of law under the national system and enforced therein. Moreover, in situations of direct domestic application of foreign norms of international, EU, or ECHR law, the mental process of comparison would be also practically excluded for the simple reason that there may not even be a corresponding mirror provision of national law which could be compared with the foreign.
The question is how to classify, again from the point of view of a state/national judge, a similar sort of referencing practice: is it mandatory, advisable, or voluntary? A principle of any federation is the variously expressed rule of federal comity or mutual assistance and cooperation (good faith and credit clause,41 Bundestreue,42 or the duty of loyal and sincere cooperation43). A similar clause may be interpreted as requiring not only cooperation and loyalty between the federation and its members, ie in vertical or diagonal relationships, but also amongst the individual members of the federation in its horizontal dimension.
Comparative Reasoning in European Supreme Courts by Michal Bobek