Judicial Bricolage : The Use of Foreign Precedents by Constitutional Judges in the 21st Century / edited by Tania Groppi, Marie-Claire Ponthoreau, and Irene Spigno.

Format:

Book

Contributor:

Groppi, Tania, editor.

Ponthoreau, Marie-Claire, editor.

Spigno, Irene, editor.

Series:

Hart Studies in Comparative Public Law.

Hart Studies in Comparative Public Law

Language:

English

Subjects (All):

Judicial process--History.

Judicial process.

Stare decisis--History.

Stare decisis.

Physical Description:

1 online resource (887 pages)

Edition:

1st ed.

Distribution:

London : Bloomsbury Publishing (UK), 2025.

Place of Publication:

London : Hart Publishing, 2025.

System Details:

text file HTML

Summary:

This book represents a unique contribution to comparative legal studies by presenting the results of an empirical research project on the use of foreign precedents in constitutional interpretation in 31 jurisdictions worldwide. It expands and updates the outcomes presented in the previous successful book The Use of Foreign Precedents by Constitutional Judges, edited by Tania Groppi and Marie-Claire Ponthoreau and published in 2013 as Volume 1 of the series Hart Studies in Comparative Public Law. This new research, covering countries from all the continents, with special attention to some of the emerging jurisdictions of the Global South, confirms that the practice of making explicit use of foreign precedents is still limited both quantitatively and qualitatively. Judicial dialogue only exists in common law jurisdictions and, even there, 'judicial bricolage' is much more common than 'judicial comparativism'. Since the previous edition, this practice has gone hand in hand with new developments in constitutional law, such as the democratic erosion and backsliding, the emergence of populist movements, the increasing role of regional human rights courts, which in many cases overshadowed foreign sources, and the end of a global vision of constitutionalism. Applying a quantitative and a qualitative analysis, with the support of tables and data, the book gives a more complete picture of the practice of citing foreign precedents in this new and challenging era, resulting in essential reading for comparative and constitutional legal scholars.

Contents:

Intro

Acknowledgements

Contents

List of Contributors

Abbreviations

Table of Cases

Table of Legislation

Introduction: Assessing the Use of Foreign Precedents by Constitutional Justices: Ten Years Later

I. Origin of the Research: The Rise of World Constitutionalism at the Turn of the Millennium

II. What's New in the Twenty-First Century: The Era of Democratic Backsliding andthe Rise of Empirical Legal Studies

III. What's New in this Book: From 16 to 31 Countries

IV. A Common Methodology

V. The Book's Organisation and New Challenges

PART I: THE 'USUAL SUSPECTS': ENGAGEMENT WITH FOREIGN PRECEDENTS IN COMMON LAW COURTS

1. An Ongoing Engagement: The Australian High Court and Foreign Case Law

I. Constitutional and Legal Context

II. The Quantitative Analysis

III. The Qualitative Analysis

IV. Conclusion

2. Turbulent Resistance in the Supreme Court of Canada: An Unexpected Backlash against the Use of Foreign Precedents in Constitutional Interpretation

I. Introduction

II. The Legal Context: What's New?

III. The Empirical Research

3. India: Using Foreign Precedents to Understand Her Own Constitutional Identity

II. 2011-20: A Challenged Supreme Court in a Transformative Era

III. The Methodology of the Research

IV. The Use of Foreign Precedents

V. To Mimic or Not to Mimic: The Dialectic(s) of Identity in the Use of Foreign Precedents in India

VI. Conclusion

4. The Use of Foreign Precedents in the Irish Supreme Court's Constitutional Case Law: An Update

II. Constitutional and Legal Context

III. Changes in the Judicial System and in the Supreme Court's Composition and Activity

IV. Empirical Research

V. Concluding Remarks.

5. The Use of Comparative Law as a Source of Legitimacy for the New Kenyan Judiciary: The Case of the Supreme Court of Kenya

I. The Constitutional and Legal Context

II. The Empirical Research

III. Conclusions: The Supreme Court as a Comparative Judge

6. The Use of Foreign Precedents in the Malaysian Federal Court: Between Engagement and Restraint

II. The Context

III. Foreign Precedents in Constitutional Adjudication

IV. Foreign Precedents and Local Constitutional Elements

V. Conclusions

7. The Use of Foreign Constitutional Precedents in Singapore: The Paramountcy of Local Context

II. Setting the Scene

III. Citation of Foreign Precedent in Singapore

8. The Use of Foreign Precedents by the South African Constitutional Court Judges: Has Anything Changed?

I. Introduction: The Context

II. The Empirical Results

III. Qualitative Analysis

IV. Concluding Remarks

PART II: IN BETWEEN: LIMITED AND SELECTIVE REFERENCE TO FOREIGN PRECEDENTS WORLDWIDE

A. Rehearsal of Engagement: Recent Developments in Some Reticent Courts

9. Using Foreign Precedents to Meet the European Standards: The Case of the Constitutional Court of Albania

II. The Albanian Constitutionalism in Context

10. Keep Calm and Carry on Comparing (More) Professionally: The Use of Foreign Precedent by the German Federal Constitutional Court in the 2010s

II. The GFCC's Constitutional Context in a Nutshell5

III. Citations of Foreign Precedent by the GFCC in the 2010s

IV. Conclusions

11. The Use of Foreign Precedents in a Hybrid Legal Order: The Case of Liechtenstein

III. The Implicit Use and the Relevance of Foreign Precedents54.

IV. Conclusion

12. Flirting with Foreign Precedents at the Constitutional Court of Slovenia

I. Historical and Constitutional Context

II. The 1991 Constitution of Republic of Slovenia

III. The Post-1991 Constitutional Judiciary in Slovenia

IV. The Use of Foreign Case Law in Constitutional Adjudication in Slovenia: Empirical Analysis

V. Conclusions (with Some Proposals for Future Research)

13. The Escalating Use of Foreign Precedents by Individual Justices in Taiwan's Constitutional Court

II. Recent Developments and Leading Cases

III. Empirical Analysis of TCC References to Foreign Precedents

B. Lost in the Shuffle: The Use of Foreign Precedents in South American Courts

14. The Use of Foreign Precedents by the Brazilian Supreme Federal Court: Paving the Way for Democracy with a Broad Comparative Approach

II. The Brazilian Context

III. The Explicit Citation of Foreign Precedents

15. Importing Legitimacy, Getting Adjudicative Leeway: The Use of Foreign Precedents by the Chilean Constitutional Tribunal

II. Context

III. Quantitative Analysis

IV. Qualitative Analysis

V. Concluding Remarks

16. The Limited but Significant Use of Foreign Precedents by the Colombian Constitutional Court

II. Colombian Constitutionalism in Context

III. The Empirical Research: Explicit Citations of Foreign Precedents

17. Fixing a Troubled Relationship: The Use of Foreign Precedents in the Constitutional Court of Ecuador

II. Ecuador's Constitutional Context

III. Foreign Precedents in the Constitutional Court of Ecuador

C. From Reticent to Selective: The Vast Groupof Strategists Courts.

18. The Use of Foreign Precedents in Austria: Continuing the Use of Non-Use

III. The Implicit Use of Foreign Precedents

19. The Use of Foreign Precedents by the Constitutional Court of Georgia: Explicit Citations and Careful Restraint

II. Georgian Constitutionalism in Context

III. Explicit Citations of Foreign Precedents

IV. Networking with the Foreign Constitutional Courts

20. Constant Inconsistency: The Use of Foreign Precedents in Hungarian Constitutional Jurisprudence

II. The Transformation of the Constitutional Court's Competence

III. Using Foreign Precedents in the Court's Jurisprudence

21. The Use of Foreign Precedents by the Italian Constitutional Court: Something New under the Sun?

II. A Brief Presentation of the ICC in its Context

III. Empirical Research from 2011-21

22. Still Residual Mention of Foreign Precedents by the Polish Constitutional Tribunal: No Need or Intention?

II. Establishment and Functioning of the Polish Constitutional Tribunal (1982-2023)

III. References to the Judicial Decisions of Foreign Constitutional Courts in the Jurisprudence of the Tribunal

23. The Sparse and Strategic Use of Foreign Precedents by the Constitutional Court of Romania

III. Conclusion

24. The Constitutional Court of Korea: Institutionalised Focus on Three Foreign Jurisdictions

II. Korean Constitutionalism in Context

IV. Implicit Influences on Foreign Precedents

V. Conclusion.

25. Switzerland: A Migration of Constitutional Ideas? An Empirical Study of the Use of Foreign Precedents by the Swiss Federal Tribunal

III. The Empirical Analysis

PART III: RELUCTANCE: NATIONALIST COURTS

26. Foreign Precedents in the Belgian Constitutional Court Case Law: Report on their Tacit Influence, or How to Play Hide and Seek

II. The Attitude of the Belgian Constitutional Court Towards the European Case Law Compared to its Attitude Towards Foreign Precedents

III. The Assimilation of Foreign Judicial Decisions to Doctrine

IV. The Cautiousness of the Belgian Constitutional Court in its Use of Foreign Precedents

V. The Implicit References to Foreign Judicial Decisions

27. The Use of Foreign Precedents by the French Conseil Constitutionnel: A Hidden and Marginal Influence

I. The French Context

II. An Unfavourable Context for Citing Foreign Precedents

III. The Absence of Explicit References to Foreign Case-Law Solutions

IV. The Implicit Influence of Foreign Precedents

V. Conclusion: The Conseil Constitutionnel and Transnational Judicial Dialogue

28. The Use of Foreign Precedents by the Supreme Court of Japan: Awakening?

II. Background

III. Empirical Research

IV. Analysis: Explicit Acceptance of Foreign Precedent

29. The One and Only Explicit Use of Foreign Precedents by the Russian Constitutional Court Since 2010

II. The Context of the RCC Judgment of 14 July 2015 N21-P

III. References in the RCC Judgment of 14 July 2015 N21-P

IV. References to Foreign Practice in Other Materials of the RCC

V. Reply in Legal Scholarship

VI. Institutional Changes and Looking Ahead.

30. The Reluctant Court: An Analysis of the Use of Foreign Precedents by the Constitutional Court of Turkey.

Notes:

Includes bibliographical references and index.

ISBN:

9781509974023

1509974024

9781509974016

1509974016

9781509974009

1509974008

OCLC:

1499718342