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Vol 23 No 11 Nov/Dec 2018

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Human Rights in the UK and the Influence of Foreign Jurisprudence (eBook)


ISBN13: 9781509904952
Published: September 2018
Publisher: Hart Publishing
Country of Publication: UK
Format: eBook (ePub)
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This book represents the first major empirical study of the use of foreign jurisprudence at the UK Supreme Court and contributes to a growing interest in comparative public law. Judicial use of foreign precedents has received very little attention in the UK context, yet foreign jurisprudence is cited in around one third of the UK Supreme Court's decided cases.

This book explains the patterns of use and non-use of rulings from foreign domestic courts in human rights cases. The book draws from a range of quantitative and qualitative research methods, including interviews with two thirds of the Supreme Court Justices in the Court's first four years (2009-2013) as well as a focus group with some of the Judicial Assistants. The central argument of the book is that, in the absence of legislative guidance, the use of foreign jurisprudence is neither consistent nor systematic. Different Justices use foreign jurisprudence to different degrees and for different reasons. The main use of foreign jurisprudence is as a heuristic device: it provides the Justices with a different analytical lens through which to reflect on their own reasoning about a problem. Some Justices also use foreign jurisprudence when interpreting a common legislative scheme and to support their conclusions. As a result, the Justices use foreign jurisprudence differently according to the audience to whom their reasons are addressed. For example, foreign jurisprudence can assist the Supreme Court to enter into dialogue with supranational courts such as the European Court of Human Rights. Paradoxically, the jurisprudence of foreign domestic courts may enable the Supreme Court to develop the domestic law of human rights that many hoped the Human Rights Act would foster. The use of foreign jurisprudence has already achieved this to some extent, by weaving international human rights law into the common law. However, the use of foreign jurisprudence is limited by practical barriers including time pressures, the availability of comparative resources and the greater use of plurality style judgments. These barriers are worth addressing if the Supreme Court is to fully utilise the heuristic value of foreign jurisprudence. The findings in this book will be of interest to academics, judges and lawyers alike.

Subjects:
Human Rights and Civil Liberties, Jurisprudence, eBooks
Contents:
1. Introduction
I. Structure of the Book
II. Style
2. Research Methodology
I. Research Parameters
II. Interviews
3. Legitimacy and Authority
I. Persuasive Authority
II. The Influence of Domestic v Supranational Jurisprudence
III. Conclusions
4. The Purpose of Foreign Jurisprudence
I. Many Minds
II. Decoration
III. Courtesy
IV. Supplements
V. Consensus
VI. Conclusions
5. Foreign Jurisprudence in the UK Supreme Court
I. The Extent to Which Foreign Jurisprudence is Used
II. The Individual Approaches of the Justices
III. Accessing Foreign Jurisprudence
IV. The Influence of Common Law Jurisdictions
V. The Effect of Changing Judgment Styles
VI. Conclusions
6. Foreign Jurisprudence as a Heuristic Tool
I. Gap Filling
II. An Analytical Lens
III. Reassurance
IV. Conclusions
7. The Pursuit of a Common Enterprise
I. Using Foreign Jurisprudence to Promote Uniformity
II. Uniformity under the Human Rights Act
III. The Absence of a Supranational Court
IV. Conclusions
8. Instrumental Uses of Foreign Jurisprudence
I. To Confirm or Bolster Conclusions
II. The Absence of Strasbourg Jurisprudence
III. ‘Departing’ from Strasbourg
IV. Conclusions
9. Conclusions
I. An Absence of Guiding Principles
II. The Individual Approaches of the Justices
III. Foreign Jurisprudence as a Heuristic Tool
IV. Providing a Given Audience with Reasons
V. The Effect of Changing Working Methods
VI. Reflections on Judicial Reasoning at the Supreme Court

Series: Hart Studies in Comparative Public Law

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