Publisher Description

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 Biography

Mads Andenas QC is Professor of the University of Oslo and the Institute of Advanced Legal Studies, University of London, and former Président-Rapporteur of the United Nations Working Group on Arbitrary Detention and Director of the British Institute of International and Comparative Law.Duncan Fairgrieve is Senior Research Fellow in Comparative Law and Director of the Product Liability Forum, at the Institute at the British Institute of International and Comparative Law, and Professor of Comparative Law at Université Paris Dauphine PSL.

Table of Contents

1. Introduction - Courts and Comparative Law: In Search of Common Language for Open Legal Systems, Mads Andenas and Duncan Fairgrieve Part I: Conflicts and Comparisons 2. Is it Legitimate and Beneficial for Judges to Use Comparative Law?, Thomas Kadner Graziano 3. Comparative Law and the Courts: What is Comparative and What is Law?, Geoffrey Samuel 4. Foreign Law before the French Courts: The Conflicts of Law Perspective, Benedicte Fauvarque-Cosson 5. Foreign Law in National Courts: A Common Law Perspective, Richard Fentiman 6. Foreign Law in International Legal Practice, Guido Alpa Part II: Comparative Law Within a European and International Law Context 7. Common Ground: A Starting Point or Destination for Comparative Law Analysis by the European Court of Human Rights?, Paul Mahoney and Rachael Kondak 8. Comparative Law and the Court of Justice of the European Union: Interlocking Legal Orders Revisted, Koen Lenaerts and Kathleen Gutman 9. National Judges and Strasbourg Case Law: Comparative Reflections About the Italian Experience, Ermanno Calzolaio 10. Comparative Law and the European Union Civil Service Tribunal, Haris Tagaras 11. Networks, Dialogue, or One-Way Traffic? An Empirical Analysis of Cross-Citations Between Ten of Europe''s Highest Courts, Martin Gelter and Mathias Siems 12. Comparative Law and the Method of Law: Ascertainment of the International Court of Justice, Eirik Bjorge Part III: Comparative Law Before Administrative Courts 13. Comparative Law as an Essential Feature of French Public Law, Olivier Dutheillet de Lamothe 14. Comparative Legal Methodology of the Conseil d''Etat: Towards an Innovative Judicial Process?, Aurelie Bretonneau, Samuel Dahan, Duncan Fairgrieve 15. The Use of Comparative Law Before the French Administrative Law Courts: Or the Triumph of Castles Over Pyramids, Francois Lichere 16. The Use of Comparative Law Before the Italian Public Law Courts, Aldo Sandulli 17. Cooperation of Constitutional Courts in Europe - The Openness of the German Constitution to International, European, and Comparative Constitutional Law, Peter M. Huber and Andreas L. Paulus 18. Judicial Dialogue in a Multilevel Constitutional Network: The Role of the Portuguese Constitutional Court, Ana Maria Guerra Martins and Miguel Prata Roque 19. Judges and Professors: the Influence of Foreign Scholarship on Constitutional Courts'' Decisions, Lucio Pegoraro 20. 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 21. Enhancing Constitutional Self-Understanding through Comparative Law: An Empirical Study of the Use of Foreign Case Law by the Supreme Court of Canada (1982-2013), Gianluca Gentili 22. Comparative Law Before the Supreme Courts of the UK and the Netherlands: An Empirical and Comparative Analysis, Elaine Mak 23. Constructing the ''Foreign'': American Law''s Relationship to Non-Domestic Sources, Judith Resnik 24. The Use of Comparative Law Before the French Private Law Courts, Guy Canivet 25. The Use of Comparative Law Before the French Cour de Cassation : The View From Academia, Alexis Albarian 26. Italian Courts and Comparative Law, Annalisa Aschieri 27. The Controversial Status of International and Comparative Law in the United States, Martha Minow 28. Foreign Law and the Modern Ius Gentium, Jeremy Waldron 29. Comparative Law Before the Spanish Private Law Courts in the XXI Century, Marta Requejo Isidro and Marta Otero Crespo 30. Comparative Legal Reasoning and the Courts: A View from the Americas, H. Patrick Glenn 31. Comparative Law in the German Courts, Hannes Unberath and Astrid Stadler 32. Comparative Law in the Syariah Courts: A Case Study of Singapore, Malaysia, and Brunei, Kerstin Steiner Part VI: Using Comparative Law: Case Studies 33. Liaison Magistrates: Their Role in International Judicial Cooperation and Comparative Law, Bernard Rabatel and Olivier Deparis 34. Comparative Law in Consumer Litigation, Geraint Howells and Jonathon Watson 35. The Use of Comparative Law by Courts in Birth-Related Tort Cases, Romain M. Lorentz 36. The Use of Comparative Law in A & Others v National Blood Authority, His Honour Judge Michael Brooke QC and Ian Forrester Q.C 37. What Europeans Can Learn from an Untold Story of Transjudicial Communication: The Swiss-Turkish Experience, Erdem Buyuksagis 38. DCFR in the Courts: The Remaking of Comparative Law, Galateia Kalouta

Review

This book provides a great starting point for much needed further research. * Roberto Caranta, Common Market Law Review *

Promotional

A critical analysis of the use of comparative and foreign law by courts across the globe, this book provides an inclusive, coherent, and practical analysis of comparative reasoning in the forensic process.

Long Description

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 ofthe 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 casestudies 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.

Review Quote

This book provides a great starting point for much needed further research.

Details