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The Use of Foreign Precedents by Constitutional Judges (eBook)

Edited by: Tania Groppi, Marie-Claire Ponthoreau

ISBN13: 9781782251019
Published: March 2013
Publisher: Hart Publishing
Country of Publication: UK
Format: eBook (ePub)
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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 - to what extent foreign case law is cited.

The study is thereby aimed at testing the reliability of studies describing and reporting instances of 'trans-judicial dialogue' 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 extent, of a transnational constitutional dialogue between courts.

Constitutional and Administrative Law, Comparative Law, eBooks
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 Zoltan 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 Ruben Sanchez 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