The use of foreign precedents by constitutional judges edited by Tania Groppi and Marie-Claire Ponthoreau.

Format:

Book

Contributor:

Groppi, Tania, editor.

Ponthoreau, Marie-Claire, editor.

Series:

Hart studies in comparative public law ; v. 1.

Hart studies in comparative public law v. 1

Language:

English

Subjects (All):

Judgments, Foreign.

Stare decisis.

Constitutional courts.

Physical Description:

1 online resource (470 p.)

Edition:

1st ed.

Place of Publication:

Oxford, United Kingdom Portland, Oregon Hart Publishing 2013.

Language Note:

English

Summary:

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 - the extent to which foreign case law is cited. The survey aimed to test the reliability of studies describing and reporting instances of transjudicial communication 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 limits of a transnational constitutional communication between courts

Contents:

Introduction : the methodology of the research : how to assess the reality of transjudicial communication? / Tania Groppi and Marie-Claire Ponthoreau

Pt. 1: Reference to foreign precedents by the Australian High Court: a matter of method / Cheryl Saunders and Adrienne Stone.

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

India: a "critical" use of foreign precedents in constitutional adjudication / Valentina Rita Scotti

The Supreme Court of Ireland and the use of foreign precedents: the value of constitutional history / Cristina Fasone

Israel: creating a constitution: the use of foreign precedents by the Supreme Court (1994-2010) / Suzie Navot

Namibia: the Supreme Court as a foreign law importer / Irene Spigno

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

Pt. 2: Austria: non-cosmopolitan, but Europe-friendly: the Constitutional Court's comparative approach / Anna Gamper

Lifting the constitutional curtain? the use of foreign precedent by the German Federal Constitutional Court / Stefan Martini

Hungary: unsystematic and incoherent borrowing of law: the use of foreign judicial precedents in the jurisprudence of the Constitutional Court, 1999-2010 / Zoltan Szente

A gap between the apparent and hidden attitudes of the Supreme Court of Japan towards foreign precedents / Akiko Ejima

Mexico: struggling for an open view in constitutional adjudication / Eduardo Ferrer Mac-Gregor and Ruben Sanchez Gil

Romania: analogical reasoning as a dialectical instrument / Elena Simina Tanasescu and Stefan Deaconu

Russia: foreign transplants in the Russian Constitution and invisible foreign precedents in decisions of the Russian Constitutional Court / Sergey Belov

Judges as discursive agent: the use of foreign precedents by the Constitutional Court of Taiwan / Wen-Chen Chang and Jiunn-Rong Yeh

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-Clair Ponthoreau

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

Zoltán 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 Rubén Sánchez 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

Notes:

Description based upon print version of record.

Includes bibliographical references

ISBN:

9781472561312

1472561317

9781782251002

1782251006

OCLC:

852757198