The Use Of Foreign Precedents By Constitutional Judges
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Author |
: Tania Groppi |
Publisher |
: Bloomsbury Publishing |
Total Pages |
: 336 |
Release |
: 2013-03-28 |
ISBN-10 |
: 9781782251019 |
ISBN-13 |
: 1782251014 |
Rating |
: 4/5 (19 Downloads) |
Synopsis The Use of Foreign Precedents by Constitutional Judges by : Tania Groppi
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.
Author |
: Tania Groppi |
Publisher |
: |
Total Pages |
: 0 |
Release |
: 2025-01-09 |
ISBN-10 |
: 9781509973996 |
ISBN-13 |
: 1509973990 |
Rating |
: 4/5 (96 Downloads) |
Synopsis Judicial Bricolage by : Tania Groppi
Author |
: Giuseppe Franco Ferrari |
Publisher |
: BRILL |
Total Pages |
: 915 |
Release |
: 2019-09-24 |
ISBN-10 |
: 9789004297593 |
ISBN-13 |
: 9004297596 |
Rating |
: 4/5 (93 Downloads) |
Synopsis Judicial Cosmopolitanism by : Giuseppe Franco Ferrari
Judicial Cosmopolitanism: The Use of Foreign Law in Contemporary Constitutional Systems offers a detailed account of the use of foreign law by supreme and constitutional Courts of Europe, America and East Asia.
Author |
: Monika Florczak-Wątor |
Publisher |
: Routledge |
Total Pages |
: 278 |
Release |
: 2022-03-30 |
ISBN-10 |
: 9781000589993 |
ISBN-13 |
: 1000589994 |
Rating |
: 4/5 (93 Downloads) |
Synopsis Constitutional Law and Precedent by : Monika Florczak-Wątor
This collection examines case-based reasoning in constitutional adjudication; that is, how courts decide on constitutional cases by referring to their own prior case law and the case law of other national, foreign, and international courts. Argumentation based on judicial authority is now fundamental to the resolution of constitutional disputes. At the same time, it is the most common form of reasoning used by courts. This volume shows not only the strengths and weaknesses of such argumentation, but also its serious methodological shortcomings. The book is comparative in nature, with individual chapters examining similar problems that different courts have resolved in different ways. The research covers three types of courts; namely the civil law constitutional courts of Germany, Italy, Poland, Lithuania, and Hungary; the common law supreme courts of the United States, Canada, and Australia; and the European international courts represented by the European Court of Human Rights and the Court of Justice of the European Union. The authors are distinguished scholars from various countries who specialise in constitutional justice issues. This book will be of interest to legal theorists and practitioners, and will be especially insightful for constitutional court judges. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.
Author |
: James Thuo Gathii |
Publisher |
: |
Total Pages |
: 0 |
Release |
: 2010 |
ISBN-10 |
: OCLC:1376395434 |
ISBN-13 |
: |
Rating |
: 4/5 (34 Downloads) |
Synopsis Foreign Precedents in the Federal Judiciary by : James Thuo Gathii
Federal courts have increasingly cited to foreign precedent and Supreme Court Justices have debated the permissibility and effect of citing such opinions in interpreting the Constitution. However, the courts have also cited to the World Trade Organization's Dispute Settlement Body (DSB). The DSB has received attention from U.S. Congress members for its decisions which rule against U.S. trade laws or their application. This article addresses two questions related to this Congressional concern: first, are federal courts bound to follow such decisions when construing a provision of a U.S. trade statute, and, second, where a provision of a federal statute has been interpreted by the DSB to be in violation of the United States' World Trade Organization/GATT treaty obligations, is a federal court bound to follow this internationally binding decision? By examining the decision in the case Turtle Island Restoration Network v. Evans, it is clear that federal courts can craft a decision which consistent with the United States' international legal obligations when the U.S. law has been deemed inconsistent with a GATT/WTO obligation. Therefore, violating international law to act consistently with domestic law is not excusable.
Author |
: Stefano Bertea |
Publisher |
: |
Total Pages |
: 29 |
Release |
: 2014 |
ISBN-10 |
: OCLC:1308853251 |
ISBN-13 |
: |
Rating |
: 4/5 (51 Downloads) |
Synopsis Foreign Precedents in Judicial Argument by : Stefano Bertea
Recourse to precedents in legal adjudication is a source of intriguing theoretical challenges and serious practical difficulties. That is especially so when we have to do not with domestic precedents but with foreign ones, that is, with decisions taken by foreign courts and international judicial institutions, particularly when there is no formal obligation for a court to resort to foreign law. Can a case decided by the judiciary of a different legal order -- particularly if that case is remote and that legal order operates under different procedural rules and substantive laws -- have any bearing on a dispute arising domestically here and now? Should such a foreign precedent be acknowledged to have any (formal) binding force on the case in question? How could the practice of following foreign precedents be justified? This paper is primary meant to lay the theoretical basis on which those questions can be addressed. The basis on which we proceed in answering those questions essentially lies in a theory of legal reasoning that, for lack of a better phrase, can be labelled a dialectical approach informed by standards of discursive rationality.
Author |
: Mads Andenas |
Publisher |
: OUP Oxford |
Total Pages |
: 825 |
Release |
: 2015-07-30 |
ISBN-10 |
: 9780191059049 |
ISBN-13 |
: 0191059048 |
Rating |
: 4/5 (49 Downloads) |
Synopsis Courts and Comparative Law by : Mads Andenas
While the role of comparative law in the courts was previously only an exception, foreign sources are now increasingly becoming a source of law in regular use in supreme and constitutional courts. There is considerable variation between the practices of courts and the role of comparative law, and methods remain controversial. In the US, the issue has been one of intense public debate and it is still one of the major dividing issues in the discussion about the role of the courts. Contributing to the existing discussion of the use of comparative law in the courts, this book provides an inclusive, coherent, and practical analysis of the relevant law and jurisprudence in comparative law in the courts. It examines the consequences for court procedures and the form of judgments, as well as how foreign sources are drawn upon in private international law, European law, administrative law, and constitutional law as well as before general courts. The book also includes case studies of comparative law used in particular spheres of the law, such as tort law and consumer law. Written by practising judges and lawyers as well as leading academics, this book serves as a central reference point concerning the role of comparative law before the courts.
Author |
: Bryan A. Garner |
Publisher |
: |
Total Pages |
: 0 |
Release |
: 2016 |
ISBN-10 |
: 0314634207 |
ISBN-13 |
: 9780314634207 |
Rating |
: 4/5 (07 Downloads) |
Synopsis The Law of Judicial Precedent by : Bryan A. Garner
The Law of Judicial Precedent is the first hornbook-style treatise on the doctrine of precedent in more than a century. It is the product of 13 distinguished coauthors, 12 of whom are appellate judges whose professional work requires them to deal with precedents daily. Together with their editor and coauthor, Bryan A. Garner, the judges have thoroughly researched and explored the many intricacies of the doctrine as it guides the work of American lawyers and judges. The treatise is organized into nine major topics, comprising 93 blackletter sections that elucidate all the major doctrines relating to how past decisions guide future ones in our common-law system. The authors' goal was to make the book theoretically sound, historically illuminating, and relentlessly practical. The breadth and depth of research involved in producing the book will be immediately apparent to anyone who browses its pages and glances over the footnotes: it would have been all but impossible for any single author to canvass the literature so comprehensively and then distill the concepts so cohesively into a single authoritative volume. More than 2,500 illustrative cases discussed or cited in the text illuminate the points covered in each section and demonstrate the law's development over several centuries. The cases are explained in a clear, commonsense way, making the book accessible to anyone seeking to understand the role of precedents in American law. Never before have so many eminent coauthors produced a single lawbook without signed sections, but instead writing with a single voice. Whether you are a judge, a lawyer, a law student, or even a nonlawyer curious about how our legal system works, you're sure to find enlightening, helpful, and sometimes surprising insights into our system of justice.
Author |
: Jeffrey Denys Goldsworthy |
Publisher |
: Oxford University Press |
Total Pages |
: 372 |
Release |
: 2006-02-09 |
ISBN-10 |
: 9780199274130 |
ISBN-13 |
: 0199274134 |
Rating |
: 4/5 (30 Downloads) |
Synopsis Interpreting Constitutions by : Jeffrey Denys Goldsworthy
This book describes the constitutions of six major federations and how they have been interpreted by their highest courts, compares the interpretive methods and underlying principles that have guided the courts, and explores the reasons for major differences between these methods and principles. Among the interpretive methods discussed are textualism, purposivism, structuralism and originalism. Each of the six federations is the subject of a separate chapter written by a leading authority in the field: Jeffrey Goldsworthy (Australia), Peter Hogg (Canada), Donald Kommers (Germany), S.P. Sathe (India), Heinz Klug (South Africa), and Mark Tushnet (United States). Each chapter describes not only the interpretive methodology currently used by the courts, but the evolution of that methodology since the constitution was first enacted. The book also includes a concluding chapter which compares these methodologies, and attempts to explain variations by reference to different social, historical, institutional and political circumstances.
Author |
: Alejandro Linares Cantillo |
Publisher |
: Oxford University Press |
Total Pages |
: 497 |
Release |
: 2021-03-11 |
ISBN-10 |
: 9780192650511 |
ISBN-13 |
: 0192650513 |
Rating |
: 4/5 (11 Downloads) |
Synopsis Constitutionalism by : Alejandro Linares Cantillo
This book is a compilation of twenty essays prepared for the occasion of the XIII Academic Conference of the Constitutional Court of the Republic of Colombia, held in Bogota in January 2019. Gathering some of the most prominent authors in constitutionalism and legal theory, the chapters critically examine classical debates, such as the role of judicial review in a democracy, the enforcement of socio-economic rights, the doctrine of unconstitutional amendments, the use of international and foreign precedents by national Courts, and the theory of transitional justice. The book opens a dialogue between philosophers and empirical researchers, building bridges between 'Global North' and 'Global South' approaches to constitutionalism. As such, it is an invitation to reengage with the classical debates on constitutionalism whilst also providing fresh insights into the future of this discipline.