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topic:

COMPARATIVE REASONING IN EUROPEAN SUPREME COURTS

A Study in Foreign Persuasive Authority

supervisor:

Jacques Ziller

contents:

ACKNOWLEDGMENTS

INTRODUCTION
1. The Topic
2. The Approach
3. The Structure
4. The Terminology

PART ONE
THE FRAMEWORK

I. THE DEBATE ON THE USE OF COMPARATIVE REASONING BY COURTS
1. A Historical View
    1.1. A Novelty …
    1.2. … Rising in Quantitative Terms
2. The Context of the Current Debates

II. FOREIGN LAW IN COURTS: A TYPOLOGY
1. Mandatory Uses of Foreign Law
    1.1. International Private Law (Conflict of Laws)
    1.2. Mutual Recognition, Extradition and Other Compulsory Considerations of Foreign Law
    1.3. Directly Applicable Sources of International Public Law
    1.4. Law of the European Union
    1.5. Law of the European Convention of Human Rights
2. Advisable Uses of Foreign Law
    2.1. Reference to a “Parent” International law (and to EU law before the Accession)
    2.2. Laws Shared with or Taken from Other States
    2.3. General Principles of Law
    2.4. Intra-federal References
3. Voluntary Uses of Foreign Law
4. Non-mandatory Uses of Foreign Law and Legal Comparisons

III. FACTORS INFLUENCING THE USE OF COMPARATIVE LAW BY COURTS
1. General factors
    1.1. Political Factors
    1.2. Size of the Jurisdiction
    1.3. The Age of the Jurisdiction/Legal Regulation
2. Institutional factors
    2.1. Level of the Court in the Judicial Structure
    2.2. Analytical Back-up
    2.3. Networks, Databases, Liaisons, Points of Reference
3. Procedural factors
    3.1. Cases Selection
    3.2. Activity of the Parties and Third Party Intervention
    3.3. Costs of Litigation
4. Human factors
5. Comparisons in Private and in Public Law
6. Constitutional Adjudication and Human Rights

PART TWO
THE PRACTICE

IV. PROLOGUE: THE METHODOLOGY AND ITS PITFALLS
1. What
2. How
3. Potential Inaccuracies

V. THE CZECH REPUBLIC
1. Doctrinal Visions
2. Judicial Visions
3. The Practice
    3. 1. The Constitutional Court
        a) How
        b) To Whom and by Whom
        c) How Often
    3. 2. The Supreme Court
    3. 3. The Supreme Administrative Court
        a) How
        b) To Whom and by Whom
        c) How Often
4. Explaining the Gaps
    4. 1. Comparative Reasoning without a Theory?
    4. 2. The Judicial Differentiation and Institutional Mentality

VI. THE SLOVAK REPUBLIC
1. Judicial Visions
2. The Practice
    2.1. The Constitutional Court
        a) How and How Often
        b) To Whom
        c) By Whom
        d) The Hidden and the Flux
    2.2. The Supreme Court
        a) No Open Comparative Arguments
        b) Judicial Style and Judicial “Economy”
        c) The Absence of Persuasive Arguments
3. The Difference: Common History means not the Same Present

VII. GERMANY
1. A Note on the Structure of German Federal Jurisdictions
2. Doctrinal Visions
    2.1. The Comparative Law Debate
        a) Zweigert´s Swiss Inspiration
        b) The Orientation and the Control Function
        c) The Doctrinal Advent of Public Law Comparisons
    2.2. The General Rechtsdogmatik
        a) Savigny and the Classical Canons
        b) The Free Law Critique
        c) The Current Streams: the Appreciation of Legislative Valuations
        d) Whose Intent?
        e) Comparative Reasoning: the Entry Points
3. Judicial Visions
    3.1. The Judicial Forum
    3.2. Extra-judicial Fora
4. The Practice
    4.1. The Federal Constitutional Court
        a) How
        b) To Whom
        c) How Often
    4.2. The Federal Supreme Court
    4.3. The Federal Administrative Court
5. The Overall Picture: the Pre-eminence of Doctrinal Comparisons

VIII. FRANCE
1. A Note on the Judicial Style
2. Doctrinal Visions
    2.1. The Exegesis
    2.2. Gény and the libre recherche scientifique
    2.3. Saleilles and the Search for Objective Judicial Comparisons
    2.4. The Modern Entry Points: Dynamic Interpretation, Standards and Gaps
3. Judicial Visions
4. The Practice
    4.1. Indirect Evidence of Comparative Analysis
    4.2. Conseil d´Etat
    4.3. Cour de cassation
    4.4. Conseil constitutionnel
5. An Evaluation: Comparative Analysis as a Liberalising Exercise?

IX. ENGLAND
1. Doctrinal Visions
    1.1. Precedent
    1.2. Statutory Interpretation
2. Judicial Visions
    2.1. The Judicial Forum
    2.2. Extra-judicial Fora
3. The Practice
    3.1. The Common Law and the Rest of the World Gap
    3.2. A Glance at the Appellate Committee of the House of Lords in 2009
4. An Evaluation: A Real Change or Just a Change in Taxonomy?
    4.1. The Unity of the Common Law – from Appeals to Persuasiveness
    4.2. With Whom to Compare?
    4.3. The Flood of Compulsory Europe

X. AN EMPIRICAL EPILOGUE
1. The Quantity
2. The Quality
3. The Theories

PART THREE
THE APPRAISAL

XI. COMPARATIVE REASONING IN COURTS: THE THEORETICAL PLAYING FIELD
1. Judicial Ideologies and Comparative Reasoning
2. The Judge as Legislator
3. The Need for Extra-Systemic Inspiration
    3.1. Gaps in Law
    3.2. Societal Change
4. The (Positivistic) Limits of Comparative Reasoning in Courts
    4.1. Persuasive, not Binding Authority
    4.2. A Subsidiary, Never a Controlling Argument
    4.3. Defendable, not Conclusive

XII. COMPARATIVE REASONING AND LEGAL TRANSITIONS
1. Legal System in Transition and Foreign Inspirations
2. Judiciary and Legal Transitions
3. Methodological Aspects: Appeals to External Values and Inspiration
    3.1. Purposive Reasoning and the Logic of Legal Revolutions
    3.2. Comparative Arguments and the Search for External Authority
4. Institutional Aspects: From Revolutionary Tribunals to Supreme Jurisdictions
5. On Influence, Importation and Mimicking

XIII. ON AUTHORITY, CITATION, AND SILENCE
1. The Authority and Its Display in a Judicial Decision
    1.1. The Types of Authority: the Rational and the Religious
    1.2. The Discovery and its Representation
    1.3. The Styles of the Representation
    1.4. The Meaning of a Legal Citation
2. To Read and/or to Quote?
3. The Advantages of Silence
    3.1. The Transparency Trap
    3.2. The Institutional and the Substantive Legitimacy
    3.3. Transparency and Other Values

XIV. COMPARATIVE REASONING BY COURTS: SOME CLASSICAL POINTS REVISITED
1. Courts Travelling Abroad – A Problem of Modern Constitutionalism?
    1.1. The Dialectic
    1.2. The Shifting Compromise
    1.3. The American Deviation
2. Blurred Methodology or Blurred Yardsticks?
    2.1. The Challenges
    2.2. The Clash of Visions and Types of Authority
3. The Purpose of Judicial Comparisons

CONCLUSION

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BIBLIOGRAPHY
1. Books
2. Articles and Book Chapters

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I could not think of any fancy intellectual quote that is normally expected to be added as the great intellectual stimulus at places like this, so what about a picture of a fat lazy cat instead?