Comparative reasoning in European Supreme Courts : a study in foreign persuasive authority

Abstract

This study deals with the use of comparative arguments as non-mandatory (persuasive) authority in judicial decision-making at the level of national supreme jurisdictions. The study has two elements: empirical and theoretical. The empirical research assesses the practice of the supreme jurisdictions in the Czech Republic, Slovakia, Germany, France and England and Wales in relation to the quantitative aspects of the use of comparative arguments in their decision-making. The theoretical element comprises two levels: firstly, the level of the national legal systems studied, where mainstream doctrinal views concerning the role and legitimacy of comparative reasoning by courts are analysed; secondly, the national theoretical approaches which serve as the starting point for determining the common denominator for a positivistic approach to comparative reasoning by courts. The national theories and practice are furthermore used to comparatively discuss: issues of authority and its display in a judicial decision; reasons for which even the state-centred national mainstream doctrine accepts the judicial use of extra-systemic arguments, including comparative inspiration; domestic legitimacy for the use of comparative arguments, with discussion of the specific scenario of transitional legal systems and their use of external comparative authority; reasons for citation or the intentional silence with respect to foreign inspiration used; method of judicial comparisons and the traditional objections propounded in relation to it, including superficiality and selectivity; finally, against this background, the aims and purposes of judicial use of non-mandatory foreign authority are freshly reassessed.